Re AM;
[2012] WASAT 137
•9 MARCH 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RE AM; EX PARTE JS [2012] WASAT 137
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 13 FEBRUARY 2012
DELIVERED : 9 MARCH 2012
PUBLISHED : 3 JULY 2012
FILE NO/S: GAA 3643 of 2011
GAA 3644 of 2011
GAA 4082 of 2011
GAA 538 of 2012EX PARTE
AM
First applicantBA
Second applicantAND
JS
Represented person
Catchwords:
Guardianship and administration - Enduring power of attorney - Conflict between children of represented person - Restraining order - Action for recovery of money - Allegations of financial mismanagement - Whether money owed by son to represented person - Need for guardianship order - Consent to medical treatment - Represented person's contact with children - Public Advocate to be involved in limited way - Need for administration order - Public Trustee to be involved in limited way - Enduring power of attorney revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(a), s 4(2)(b), s 4(2)(c), s 4(2)(d), s 16(4), s 43, s 43(1)(b), s 43(1)(b)(ii), s 64, s 64(1), s 64(1)(a), s 97(1)(b)(iii), s 108(1a)(a), s 109, s 109(1)(b), s 109(1)(c), s 110ZD(5)(a), s 110ZD(5)(b)
Transfer of Land Act 1893 (WA), s 143(1)
Result:
Guardianship and administration orders made
Enduring powers of attorney revoked
Category: B
Representation:
Counsel:
First applicant : No appearance
Second applicant : Ms H Athanasiou
Represented person : No appearance
Solicitors:
First applicant : N/A
Second applicant : Ferrier, Athanasiou & Kakulas
Represented person : N/A
Case(s) referred to in decision(s):
KS [2008] WASAT 29
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The children of an elderly woman were in conflict about what personal and financial decisions should be made for her. Two of the children, a daughter and son, lived outside of Western Australia. The woman lived with another daughter in Western Australia.
The mistrust that existed between the daughter in Western Australia and the woman's other children (and their respective partners) was of such intensity that allegations had been made that the woman was not being adequately cared for, and that her estate was not being managed in her best interests. There had been legal action on several fronts purportedly in the woman's best interests, including action for a restraining order against the daughter living interstate and action for return of the woman's funds that were being held by that daughter and the woman's son.
Applications were made for guardianship and administration orders for revocation of an enduring power of attorney, and for an order requiring the records and accounts kept by the current attorney (the daughter in Western Australia) to be audited. It was also alleged that the son owed the woman the balance of a loan she had given him some years previously.
The Tribunal found that the woman was receiving appropriate care and support from the daughter with whom she was living, and that it was in her best interests to continue to live in a community setting for as long as possible. The Tribunal also found that that daughter had adequately explained the financial transactions that had been made on behalf of the woman, although the Tribunal raised a concern at the amount of legal costs that the woman had incurred.
The Tribunal found that the actions of all the children had, at times, been hasty and inflammatory.
The Tribunal decided that the woman was in need of a limited guardianship order to ensure proper consent was given in respect to her medical treatment. The Tribunal appointed the daughter with whom the woman was living, as she was already assisting her in her care and medical appointments. The appointment corresponded with the woman's wish.
The Tribunal also appointed the Public Advocate as the woman's limited guardian to decide matters of her contact with her children, given the conflict between them.
The Tribunal decided that an administration order was the most appropriate authority by which the woman's estate should be managed, and revoked the enduring powers of attorney (which included one the woman had made previously and about which there was some doubt as to whether it had been revoked by her). The daughter with whom the woman was living was appointed generally as her administrator, and the Public Trustee was appointed in a limited role to deal with action for return of the funds and the alleged loan to the son.
The Tribunal found that there was no need for the records and accounts kept by the current attorney to be audited.
Introduction
What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.
In keeping with the confidentiality provisions of the Guardianship and Administration Act 1990 (WA) (GA Act), the names of the parties have been anonymised.
The following has been used to identify the principal parties to the proceedings:
•JS (the represented person), the person for whom the applications were made;
•BA, the daughter with whom the represented person lives;
•JM, the daughter who lives outside of Western Australia;
•AM, the soninlaw of the represented person (the spouse of JM);
•PS, the son who lives outside of Western Australia; and
•PB, the partner of PS.
Applications
I have before me four applications in respect to the represented person; they are applications for guardianship and administration orders made by AM, the soninlaw of the represented person, and two applications that seek orders in reference to two enduring powers of attorney that the represented person has executed.
The relevant legislation is the GA Act.
The applications in respect of the enduring powers of attorney are made by AM under s 109(1)(b) of the GA Act, seeking to have the records and accounts of the enduring power of attorney held by BA audited, and by BA under s 109(1)(c) of the GA Act (accepted as an oral application at the hearing), seeking to have the enduring power of attorney held by AM revoked.
These applications were heard by me on 13 February 2012 and the decision reserved.
The GA Act
The GA Act mandates a number of steps that I must go through in making decisions with regard to the applications before me. The GA Act is generally characterised as a piece of protective legislation. It allows for the appointment of substitute decisionmakers in circumstances where a person has lost the capacity to make decisions, or when they are unable to look after their own health and safety.
There is an acknowledgement in the GA Act that the making of an order is a significant event, and that in making guardianship and administration orders certain decisionmaking rights of the person for whom the orders are made are taken from them, so it is only when there is a demonstrated need that orders should be made.
The GA Act deals with this tension between the need for a person's protection and their right to autonomous decisionmaking, by having within it a number of steps that the Tribunal must take in coming to its determination of whether orders should be made and, in that process, observe the principles stated in s 4 of the GA Act.
Firstly, the Tribunal must make a finding as to a person's capacity, as that notion is reflected in the particular provisions of the GA Act, about which I will go into detail later in these reasons.
There is a presumption of capacity in the GA Act (s 4(2)(b)). One of the principles is that the person for whom an application is made is presumed to be able to manage their own affairs and look after themselves, until and unless the Tribunal is satisfied on all the evidence that they are unable to do so. Another step, a very critical step, the Tribunal must undergo in respect to guardianship and administration applications is to determine whether there is a need for orders, and that is a question which is independent of the question of capacity. If a positive finding is made in respect to the represented person's capacity in other words, if I come to a view that she is a person for whom guardianship and administration orders could be made I then have to make a judgment about whether there is a need for orders. The GA Act states that if the needs of the person can be met in a less restrictive manner, that is, of their freedom of decision and action, then I should not make an order (s 4(2)(c) of the GA Act).
If I do decide to make orders, further questions need to be answered. First, I have to decide what the scope of the orders should be. Typically, I have two alternatives, in broad terms. I can make what are called plenary orders, which are all encompassing orders, or I can make limited orders in which I particularise the functions that are given to the guardian or administrator. The GA Act says that in respect to guardianship orders, if a limited order is sufficient to meet the needs of the person, then a plenary order should not be made (s 4(2)(d) of the GA Act).
In respect to the applications that refer to the enduring powers of attorney that the represented person has executed, there is no need in those applications for me to consider the question of her capacity. It has been found that the Tribunal has a general supervisory role in respect to enduring powers of attorney, which means that applications made under s 109 of the GA Act can be made in respect of persons who are capable: see KS [2008] WASAT 29.
In all the applications that are before me, I must make a judgment as to what is in the represented person's best interests. That is the primary concern of the GA Act (s 4(2)(a)). In doing so, I must ascertain to the extent that I can, the views and wishes of the represented person in respect to the applications that have been made.
The enduring powers of attorney
The represented person has executed two enduring powers of attorney.
On 29 March 2006, she appointed AM as her sole attorney and JM as the substitute attorney on the occurrence of certain events or circumstances, one of which I will return to later, namely, that AM is permitted by the instrument to renounce the power by making a written statement to the effect that he no longer wishes to be attorney. The enduring power of attorney was registered with the Registrar of Titles on 24 May 2007.
The represented person purportedly revoked the enduring power of attorney in favour of AM on 18 October 2011.
The second enduring power of attorney was executed by the represented person on 26 August 2008 in favour of BA with PS as the substitute when the same events or circumstances occur, as in the 2006 enduring power of attorney. This enduring power of attorney was registered with the Registrar of Titles on 2 October 2008.
AM submits that the represented person was not capable of revoking the 2006 enduring power of attorney. He further submits that the making of a new enduring power of attorney does not, of itself, revoke any existing enduring power of attorney.
BA submits that the represented person executed the 2008 enduring power of attorney after some family friction caused her to change her mind, and she (together with her late husband) no longer wished for AM to have any authority over their affairs.
AM references a 'large family argument' in December 2007 when the represented person and her late husband visited him and JM in Queensland. In late 2008, PS advised JM that the represented person and her husband had rewritten their wills and appointed BA as executrix.
BA submits that there was no question about the represented person's capacity to execute the 2008 enduring power of attorney, and that she was never advised by the represented person's solicitor at the time that a formal revocation of the 2006 enduring power of attorney was required.
The evidence and submissions of AM
On 4 November 2011, AM filed applications for guardianship and administration with the Tribunal. AM lives in Queensland and is the spouse of a daughter of the represented person, JM. The represented person has two other children; PS, a son who also lives in Queensland, and BA, who lives in Perth and with whom the represented person lives.
AM expresses a number of concerns in his applications. They are that BA is manipulating the represented person and has undue influence over her so that both JM and PS (and their respective partners) are unable to communicate or have other access with the represented person, that he (AM) holds an enduring power of attorney which has been purportedly revoked by the represented person and that he challenges the revocation, and that he is unable to confirm the estate of the represented person or whether accurate records are being kept of financial transactions made on her behalf by BA.
AM submits a number of documents with the applications, including the enduring power of attorney executed by the represented person on 29 March 2006 appointing him as attorney and JM as substitute attorney.
Other relevant documents submitted at that time include an Aged Care Assessment Team (ACAT) assessment dated 22 July 2010, which states that, apart from a number of physical conditions, the represented person has 'memory loss'. At the time of the assessment she was still living at her home, but was considered to be socially isolated. An increase in formal services was said to be required. BA was reported as being a 'very supportive daughter'. The represented person was approved by ACAT for low level residential and respite care and for a community aged care package.
There is some correspondence from AM and JM's solicitor to the solicitor for BA (or the represented person) which references a number of things, including the action for a restraining order by the represented person against JM, the funds of the represented person being held by AM and JM, and a view that the enduring power of attorney held by AM can only be revoked by the represented person in writing, pursuant to s 143(1) of the Transfer of Land Act 1893 (WA).
The applications also include some of the email exchanges between BA and JM, relevantly, the ones from August and November 2010, in which BA comments about the represented person's 'dementia' and how she was advised that people with dementia can have 'good days' and 'bad days', and an email to JM dated 30 August 2011, in which BA states '[d]idn't say anything to Mum as she is beyond remembering anything I tell her or ask her'.
The applications include a statutory declaration from PS and two from his partner, PB, dated 11 October 2011 and 3 November 2011 respectively, alleging BA as the perpetrator of violent incidents on Christmas Day 2010 (towards the represented person) and 23 September 2011 (towards JM and AM).
An additional number of documents have been submitted and written submissions made by AM. Relevantly, AM states that the enduring power of attorney appointing him as the represented person's attorney in 2006 arose from the represented person and her late husband falling out with BA. The husband died in February 2009 and the represented person, who it is said was very dependant on him, began to decline physically and mentally. BA assisted the represented person with shopping and medical and other appointments. JM made a number of visits from Queensland to give BA some respite, and it is on one of those visits, in June 2011, that JM slapped the represented person, which is said to have led the represented person to take action to obtain a restraining order against JM, even though AM states that JM returned to Queensland very soon after the incident. AM is of the view that this action was effectively instigated by BA because of his view that the represented person lacked the capacity to take legal action, and its aim was to prevent JM from having contact with the represented person.
The written submissions then recount an incident that occurred on 23 September 2011, which appears to have played a significant role in the total breakdown of the relationships between BA and JM and AM, and between BA and PS.
From AM's point of view the following occurred:
It had been agreed by the family that it would be best for the represented person to move in with BA, and that the funds of the represented person would be used to renovate BA's home to allow that to happen. This needed to be organized and AM said that it was arranged that all of the siblings would assist, which included getting the represented person's property back to a state where it could be sold. A family meeting was to be held on 23 September 2011.
AM says that he and PS and their spouses were concerned to do a number of things; to secure the Certificate of Title, to sell the represented person's motor vehicle, to secure cash found in the represented person's safe totalling $8,900, and to deal with household and personal items.
It is alleged by AM that BA became angry and aggressive in the context of having arranged for some people to consider purchasing household items. AM says that it is not unusual for BA to lose control as she did that day. He references the statutory declarations of PS and his partner, and an email from a representative of a car yard, which is before the Tribunal.
AM states that what was then decided between JM and PS was that the Certificate of Title would be lodged with a solicitor, the motor vehicle would be sold and the cash from the safe, together with the proceeds from the sale of the motor vehicle and other items, be deposited in a bank account in the name of PS and JM. All of this was done.
AM states several other things in regard to this incident, that there had been agreement that the three children would choose any of the represented person's items that they wanted and the rest would be donated or sold (PS had placed some of the represented person's furniture into storage to ship to Queensland); BA had ordered them off the represented person's property stating she would involve the Police; since then he and the others have tried to resolve the matter with BA without success and BA has placed the represented person's property for sale using her enduring power of attorney.
In all of these circumstances, AM maintains that BA has manipulated the represented person to accuse them of theft and to unnecessarily involve lawyers and the Courts.
The Tribunal has been provided with some of the correspondence between lawyers for the represented person and AM and JM in the period between September and November 2011. The particular correspondence to which I now refer was submitted to the Tribunal by Civic Legal for AM and JM. The correspondence evidences the complete breakdown of the relationship between the represented person and JM and AM, although they maintain that the argument is really with BA and that she continues to manipulate the represented person to proceed with the legal action.
Relevantly, there is continuing disagreement as to the capacity of the represented person to instruct a lawyer and to take legal action against AM and JM. There is an offer by AM and JM to release the funds and documents they hold, if evidence is provided to show that the represented person is capable and that accounting for the funds will take place. (Civic Legal says, on 3 November 2011, that it holds the Certificate of Title for the represented person's property, and that it is being made available to the solicitor for the represented person to allow for the sale of the property). The offer by AM and JM is rejected. AM and JM also question the capacity of the represented person to revoke the enduring power of attorney held by AM. The upshot, at that time the legal actions purportedly initiated by the represented person are set to continue, and the ongoing view of AM and JM through their solicitor is that:
Our client's suspicions are that [BA] is initiating this inappropriate action motivated solely by the family fall out between [BA] and her siblings and to gain uncontested control and influence over [the represented person] who is unable to decide for herself. (Civic Legal 27 October 2011)
A further submission from AM relevantly includes two emails from BA to AM on 8 September 2011 and 9 September 2011, in which BA states that she intends to sell the motor vehicle as soon as she can get it fixed. She describes the car as a 'lemon' and that in the past two years the represented person has spent $4,500 on repairs to it. BA expects to tradein the vehicle and to buy another one and she 'will take a loan out for the difference'. There is another earlier email dated 12 August 2010 to JM, in which BA describes the last 17 months as a 'living hell, mainly because the Doctors seem to believe Mum over me'. BA raises the issue of a loan that the represented person has purportedly made to PS. She states in an email to JM, dated 2 July 2010 that '... money loaned to [PS] (which is included in the "deemed" income bracket) I will say she has gifted to him (thank goodness I didn't put down the full amount he borrowed of $14K)'. In an email from BA to JM and PS dated 26 September 2011, BA states: '[PS] by the way Mum wants you to repay the $11,000 that you owe here [sic] this matter will also be resolved through her solicitor'.
AM provides copies of bank statements for two accounts, one styled 'Smart Access' and the other 'NetBank Saver'. The former has a balance of $4 as at 1 November 2011, and the latter has a balance on that day of $15,755.35. AM explains that the balance is represented by $8,900 cash from the represented person's safe, $790 proceeds from a garage sale, and $6,000 from the sale of the motor vehicle. The remainder is interest earned on the funds.
In his oral evidence, AM states that if BA communicates with him, JM and PS about how the represented person is faring, then he would support the current living arrangements continuing. Currently, both he and JM do not know what is happening with the represented person because BA has cut off contact. He submits that BA should be giving JM and PS information about the represented person's care needs and about contact arrangements, but is concerned that BA influences the represented person to prevent this from happening.
As for the finances of the represented person, AM states that he used the 2006 enduring power of attorney to complete the transactions for which he has been accused of theft; the sale of the motor vehicle, the holding of the cash, jewellery, furniture and various documents. AM maintains that BA has not adequately explained the expenditure of the represented person's funds, and that an audit should be conducted of those transactions pursuant to his application under s 109(1)(b) of the GA Act.
AM proposes himself as guardian and administrator.
The evidence and submissions of JM
In a written submission made in January 2012, JM sets out her view of the family history, in particular in respect to BA. Relevantly, she submits that BA is a 'vindictive and aggressive person' who is unsuitable to care for the represented person; that she in fact 'presents a threat to my mother's safety [and] wellbeing'. She says that her position is supported by PS. She cites the legal action taken against her and AM as evidence of BA's manipulation of the represented person.
The evidence and submissions of PS
PS states that he is concerned for the represented person's safety. He says that he and his partner have been verbally abused by BA. He says that BA's partner abuses drugs and never wanted the represented person to live with them. PS states that the represented person has little freedom in her current accommodation. He states that BA manipulates the represented person and is concerned about her finances being depleted. He submits that, should the only alternative in the represented person's circumstances be that she is accommodated in a nursing home, he would accept that particular outcome.
In response, BA' s partner accuses PS of lying.
The evidence and submissions of BA
BA submits that guardianship and administration orders are not necessary. She seeks revocation of the 2006 enduring power of attorney appointing AM (her initial position is that the represented person validly revoked the enduring power of attorney in October 2011), and that the enduring power of attorney she holds should be allowed to continue to operate as a less restrictive alternative to the making of an administration order. In the alternative, she seeks her appointment as the represented person's guardian and administrator.
BA submits that what she proposes would be reflective of the continuing input she has had in the represented person's care since the death of her father in February 2009, including arranging for support when the represented person was still in her own home, checking on her daily, having her visit on weekends, taking her to medical and other appointments, and from 18 September 2011, with the agreement of her siblings, having the represented person live with her.
Further reasons given by BA in support of her being appointed guardian are that the represented person already lives with her, the represented person supports her being the person to assist in the decisionmaking, and that AM lives in Queensland and would not be sufficiently available to undertake the decisionmaking role.
BA submits that after the evidence of the consultant geriatrician, Dr CL, in respect to the vulnerability of the represented person to influence, (see below), it is not correct now to say that she influences the represented person in the decisions that are made.
BA states that until recently she had a good and trusting relationship with JM and PS as it relates to the care of the represented person. The usual process had been for BA to discuss with the represented person a decision that needed to be made. This would be followed by the proposed decision being put to JM for input. This worked successfully. JM never questioned how the represented person's funds were being spent, for example, JM agreed that the represented person's funds should be used to renovate BA's home to enable the represented person to live there (evidenced by email dated 13 July 2011).
BA submits that it has always been the view of JM (and possibly PS) that the represented person requires supported accommodation, such as a retirement village or aged care facility.
BA accepts that she became angry at the time JM and PS (and their respective spouses) were in Perth in September 2011 to deal with the represented person's home and possessions. She says that the argument arose because JM had mistakenly indicated to a buyer that all of the represented person's possessions were for sale. As a consequence, BA says that she cancelled the garage sale for further consultation with the represented person as to what could be sold. BA states that the represented person then wanted JM to leave the home (they had been staying there whilst in Perth) and to call the Police if necessary. BA now states that this was probably a harsh reaction.
BA states that she next heard from JM and AM when she received an email from AM on 26 September 2011, advising her of the actions they had taken, namely, to remove the cash and jewellery from the safe, sell the motor vehicle and some items from the house, and remove the represented person's Certificate of Title to her property.
BA states that she contacted the represented person's solicitor and was advised to involve the Police in respect to the items taken by JM and AM without permission. The represented person is said to have asked BA to find her a new solicitor and take civil action for return of the goods and cash and the proceeds of sale of the motor vehicle and household items.
BA states that JM admitted to part of the claim ($15,751.35) on 21 November 2011.
BA states that JM physically assaulted the represented person when visiting in June 2011. She says that, at first, the represented person did not want to pursue the matter, but after the action of selling the motor vehicle and removing the cash, the represented person's view changed and she took action to obtain an interim restraining order against JM on 11 October 2011.
BA submits that the represented person is frightened by JM. Other than distance, there is no barrier to JM visiting the represented person. The represented person is said to have recently withdrawn the restraining order as she hopes to resume a relationship with JM, but only on the basis that JM alerts the represented person to an upcoming visit and that another person is present when the visit takes place.
BA has submitted bank statements of a 'Pensioner Security Account' in the name of the represented person for the period 1 November 2010 to 31 October 2011, and a detailed analysis of the financial transactions for the represented person for the period 1 November 2010 to 26 January 2012. Relevantly, she states that $11,762.50 was spent on the home of the represented person for maintenance; $7,946 for material costs on the renovations to BA's home so that the represented person could live there (she estimates she and her partner contributed $1,560 in labour costs), and calculates that it costs the represented person less to live with her than for her to live alone.
The financial statements reveal that about $17,000 has been spent by the represented person on legal costs to date. The actions appear to be the restraining order, the return of the funds and goods, and the current Tribunal proceedings.
BA estimates that the represented person's estate is valued at about $676,000, comprising her property and bank funds. This appears not to include the funds held by AM and JM.
BA submits that there is no evidence to warrant an audit of the enduring power of attorney. She has provided details of all the transactions undertaken over the last 12 months, and these show transactions reasonably made. She submits that, if the Tribunal was minded to appoint her as the represented person's administrator, then any concerns should be allayed because she would be required to report to the Public Trustee.
The Public Advocate
The applications made by AM were referred by the Tribunal to the Public Advocate, pursuant to s 97(1)(b)(iii) of the GA Act. The role of the Public Advocate in these proceedings is to investigate the applications, report to the Tribunal and, specifically, to advance the best interests of the represented person.
The Public Advocate was able to interview the represented person in her home on her own. In that interview, the Public Advocate reports that the represented person said that she is happy living with BA. She does not have much contact with her other children, but is not overly concerned about this. She does not believe that BA is blocking contact and, were JM or PS to telephone her, she would probably speak with them. If they were to visit, it would need to be in a neutral setting.
The represented person is further reported to have told the Public Advocate that she trusts BA. BA knows everything about her and her finances, and assists her with appointments and manages her money. BA shows her the bank statements. The represented person said that her health is good and that if she needs to see a doctor BA will make the appointment and take her to the doctor's surgery. In respect to the motor vehicle, she expressed concern at how the issue of the sale of the car was being managed. The car was needed to take her to places and it was an inconvenience that it was sold without consultation.
In giving a view of the represented person's best interests at the hearing, the Public Advocate submits that the principal ongoing issue seems to be that of the contact being sought by JM and AM. If the Tribunal appointed the Public Advocate as guardian to make decisions about this matter, then she would be bound to take into account the wishes of the represented person which are currently ambivalent. The Public Advocate submits that there is no evidence that the represented person's safety is at risk in BA's home, and her care needs are effectively monitored by the Hills Community Support Group under a community aged care package. As for the represented person's medical treatment, it appears that she is in need of a substitute decisionmaker, in which case, BA could take that role (which she already undertakes) under the 'Person Responsible' provisions of the GA Act (Pt 9C).
The views and wishes of the represented person
In addition to being interviewed by the Public Advocate, the represented person gave evidence at the hearing. She says that she is very disappointed that JM and AM have become, in her view, obstinate about the situation that has developed. She says that BA has always believed she has been doing the right thing. The represented person states that in BA's home she has her own bedroom, bathroom and living room. She wants to continue to live with BA. As for her money, she tells BA what to pay and BA makes the arrangements. BA provides her with money when it is needed.
The decision of the Tribunal
The capacity of the represented person
Much has been submitted about the capacity of the represented person. I must make a finding about this in the context of the relevant provisions of the GA Act. Those provisions are s 43(1)(b)(ii) and s 64(1)(a), which are to be read subject to the presumption of capacity contained in s 4(2)(b) of the GA Act.
Section 43 of the GA Act refers to guardianship. It states that, in the determination of whether the represented person is in need of a guardian, I must first be satisfied that she is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, or that she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
Section 64 of the GA Act refers to administration. It states that, in the determination of whether the represented person is in need of an administrator, I must first be satisfied that she 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. Mental disability is defined to include an intellectual disability, a psychiatric disability, and acquired brain injury and dementia (s 3 of the GA Act).
In addition to the evidence of the parties, a number of reports by medical practitioners have been made available to the Tribunal, as well as a report of a neuropsychological assessment. The specialist, Dr CL, also gave evidence at the hearing.
In chronological order, the written reports are:
•1 August 2011, the coordinator of the represented person's home services. The coordinator states that when she has visited the represented person, she has found her to be engaged in conversation, able to answer questions put to her, and able to understand the reason for the visit. She describes the represented person as 'mildly' confused.
•14 November 2011, Dr AN, general practitioner. Dr AN has been the represented person's general practitioner for four years. He states that the Memory Clinic (I presume of Swan Health Service) confirmed a diagnosis of Alzheimer's dementia in August 2010. Dr AN characterises the dementia as being 'moderately severe' and expects a gradual deterioration in the represented person's cognition. In his view, the represented person cannot make reasonable decisions about her personal and financial affairs.
•17 November 2011, Dr CL, consultant geriatrician. The represented person was first seen by the Memory Clinic in August 2010, and at that point her symptoms were consistent with Alzheimer's disease. Dr CL confirms that diagnosis in the most recent assessment on 16 November 2011 (but characterizes it as mild and predominately as a shortterm memory deficit). He states further that '… she still retains insight into her financial matters and is aware of her current family conflict ... she retains capacity to decide who would be best to help her manage her financial matters and who should be best to help her with her living situation and medical management'. BA is identified as that person.
•13 December 2011, Dr GP and Dr MV, clinical neuropsychologists. The represented person was referred by Dr CL. She was seen on 9 December 2011. The assessment comprised of an interview with the represented person, an interview with BA and formal testing.
I now quote from the report as to that section which is headed 'Opinion':
In summary, [the represented person] is a 78 yearold woman of estimated premorbid low average to average intellectual function, who presented for neuropsychological assessment to determine her capacity for decisionmaking regarding financial, lifestyle and medical management. In addition, the assessment aimed to evaluate [the represented person]'s testamentary capacity. [The represented person] is understood to have been diagnosed with mild to moderate dementia due to Alzheimer's Disease in August 2010.
[The represented person]'s neuropsychological profile comprising deficits in orientation, together with a picture of rapid forgetting reflective of degraded memory store and essentially global executive weaknesses, is considered consistent with her established diagnosis of probable Alzheimer's Disease. Mild reductions in aspects of her attention and speed may be due to any possible impact of cerebrovascular compromise, of which she is considered at risk given her numerous vascular risk factors, in addition to the likely progressive nature of her dementia process.
The next heading is 'Decisionmaking capacity':
In light of [the represented person]'s cognitive weaknesses demonstrated on testing (particularly with respect to her incapacity to lay down new memories) together with qualitative observations and her responses on interviews, concern is raised regarding her capacity to make decisions regarding management of her finances. In essence, she demonstrated difficulty identifying her assets and her estimation of their potential value was mostly inconsistent and inaccurate. She also had trouble taking on new information pertaining to these items (e.g., the renewed value of her home and that it was currently for sale). Concern is also raised regarding [the represented person]'s capacity to make informed and consistent decisions regarding her medical care and possible accommodation requirements should (particularly complex) related issues arise.
Further, whilst [the represented person] demonstrated a sound appreciation of the purpose of a will, the inconsistencies demonstrated with respect to her desired benefactors of her will, placed her testamentary capacity in significant doubt. She was also very vulnerable to influence, with fragile and changeable views noted over the course of the time spent in her company and is therefore considered highly susceptible to being exploited with respect to financial and estate issues.
[The represented person] was entirely consistent, however, in identifying her daughter, [BA], as the person she most trusted and wished to manage decisions pertaining to her financial, lifestyle and medical circumstance[s].
Oral evidence of Dr CL
In his oral evidence, Dr CL confirms that the represented person has been diagnosed with Alzheimer's dementia, which is a progressive condition. He acknowledges that there is some difference in the opinion of the represented person's capacity expressed by the neuropsychologists and his earlier opinion. He accepts that the neuropsychological assessment is important in guiding him in his current assessment of the represented person's capacity. In that regard, he opines as follows: the represented person is not fully capable of independently making her own financial decisions and she would have difficulty with personal decisionmaking and would not, on her own, be capable of making treatment decisions. He makes that statement in the context of the represented person's shortterm memory problems, which means that she is at risk of forgetting a decision she has previously made. Dr CL is concerned that the represented person can no longer give instructions to a legal representative. As to the question of undue influence raised in the neuropsychological assessment, it is Dr CL's view that such an assessment is difficult to make unless there is objective evidence of the represented person changing her mind. He would characterise what the neuropsychologists say about this matter as an 'observation' about her vulnerability to be influenced by others.
The finding on capacity
It should be remembered that any determination I make about the capacity of the represented person must be made as I find the evidence on the day of the hearing. I must judge that evidence against the relevant provisions of the GA Act (s 43 and s 64) and in light of the presumption of capacity found in s 4 of the GA Act.
It is common ground that the represented person has been diagnosed with a dementia likely of the Alzheimer's type. She thereby satisfies the requirement of s 64(1) of the GA Act in the making of an administration order, that she has a 'mental disability', the definition of which, in s 3 of the GA Act, includes the condition dementia.
I am satisfied that the represented person is incapable of looking after her own health and safety, and that she is in need of oversight and care. This is accepted by the parties in the recognition that she can no longer live on her own and that, were she not receiving care and monitoring from BA and the Hills Community Support Group, then for her own health and safety, she would require care in an aged care facility. Problems with the represented person's ability to cope on her own have been apparent as early as August 2010 in the email correspondence between BA and JM.
There have been a number of submissions that speak to the ability of the represented person to have made decisions (in the language of the GA Act, to have made reasonable judgments) about various personal and financial matters. This issue of the represented person's capacity has become an issue (in the sense that there are differing views about it) since the breakdown in the sibling relationships from about September 2011. Questions have been raised about the represented person's ability to have initiated and maintained legal action against JM and AM, her ability to revoke the 2006 enduring power of attorney in October 2011, and, more generally, her ability to make decisions about the contact she has with some of her children and to manage her financial affairs. Surrounding all of this is the charge that the represented person has been, and remains, vulnerable to influence contrary to her best interests; that influence allegedly being brought to bear by BA.
The neuropsychological testing from early December 2011 (and accepted by Dr CL) reveals significant deficits in the represented person's cognition, despite the fact that she, superficially at least, presents well.
I am drawn to two particular outcomes of the neuropsychological testing. They are first, that the represented person now has great difficulty learning new information and is unable to later retrieve any of the (limited) material she is able to encode, reflective of rapid forgetting, and secondly, that the represented person demonstrates, essentially, global reductions across her executive abilities. Specifically, her abstract verbal reasoning is poor and many of her responses are characteristically concrete.
These testing outcomes are not in dispute. Dr CL accepts the need to incorporate the testing results in his assessment of the represented person's capacity.
When I consider a rational decisionmaking process, I would say that a person should at least know the context of the decision at hand, know the choices available, and appreciate the consequences of specific choices. This process clearly requires a person to be able to gather new information (in light of changing circumstances), hold that information for later retrieval and manipulation and then put the decision into effect (planning and organising).
It is my view on the evidence that, due to the particular cognitive deficits of the represented person, she is not capable of engaging in the decisionmaking process I have described, other than when mundane decisions are to be made. I agree and accept the assessment of the neuropsychologists, which is supported by Dr CL in his oral evidence.
I am satisfied, therefore, that the represented person is no longer able to make reasonable judgments about her estate or reasonable judgments about significant personal decisions, in particular, her ongoing accommodation and care needs, her medical treatment, the contact with her children and, from Dr CL's oral evidence (which I accept), instructing a lawyer.
The submission of AM, JM and PS is that the represented person is under the malign influence of BA (which BA disputes). The neuropsychologists have a strong opinion on this matter when they state:
She was also very vulnerable to influence, with fragile and changeable views noted over the course of the time spent in her company and is therefore considered highly susceptible to being exploited with respect to financial and estate issues. (Report of 13 December 2011)
Dr CL takes a more sanguine view of the represented person's vulnerability and suggests that, to come to a definite opinion, an assessment needs to be conducted over time (as to evidence of the represented person changing her mind).
In taking the opinions of both the neuropsychologists and Dr CL into account, I am able to come to a view that, because of the nature of the cognitive deficits that I have earlier described, the represented person's decisionmaking is open to the influence of others. I am confident in this view because the represented person must rely on others to fill in the gaps that arise from her problems with recall, and her reduced capacity to form memories from new information that is presented to her.
I am therefore satisfied that the represented person is a person for whom guardianship and administration orders could be made, in that she satisfies the requirements of s 43(1)(b) and s 64(1)(a) of the GA Act.
The represented person has been diagnosed with a progressive condition. This means her cognition and memory will continue to decline.
The need for a guardian
I am satisfied on the evidence that the represented person is living in stable and suitable accommodation in the home of BA, which has been modified to enable the represented person to have her own amenities. I am satisfied that it is the represented person's wish to continue to live in this family home setting, but I am of the view that she would not be able to determine the time (if it in fact arrives) when the current accommodation no longer meets her needs and alternative accommodation has to be found.
I do not accept the submission of JM and PS that the represented person's safety is currently at risk. I accept the evidence and submission of the Public Advocate in that regard. In his oral evidence, AM supports the current accommodation, but is concerned that he and others are not properly informed about what is happening with the represented person.
Given my findings, I am not satisfied that a guardian needs to be appointed at this time to make the accommodation decision. There is no apparent reason for the represented person's accommodation to change in the foreseeable future. If the circumstances of the represented person change and a new decision needs to be made, then I would expect BA to inform JM and PS of the proposed change. I put that expectation in strong terms. If BA were disinclined to do this, then I would not be surprised if another guardianship application was made to this Tribunal.
The represented person needs someone to give consent to her treatment decisions. The Public Advocate submits that, in the current situation (the represented person living with BA, and JM, AM and PS living outside of Western Australia), BA is the appropriate consent giver and the process of consent can be achieved by the application of Pt 9C of the GA Act. It is accepted that, currently, BA is the person who assists the represented person with her medical needs.
Part 9C of the GA Act allows a person in a hierarchy of persons (known as the person responsible) to make treatment decisions for a patient who is unable to make reasonable judgments about the proposed treatment. This can be done (if appropriate) without the need for a guardianship appointment. As the Public Advocate suggests, BA would be the obvious choice because, although all of the represented person's children would contend they take a genuine interest in her welfare, as required by s 110ZD(5)(b) of the GA Act, BA is the child who has the most frequent contact of a personal nature with the represented person, which is the requirement of s 110ZD(5)(a).
I accept the Public Advocate's submission that BA is currently the logical choice to give the necessary consent. However, I consider it to be in the best interests of the represented person that the authority be contained in a guardianship appointment. I do so to underscore the responsibility of BA (as guardian) to preserve the supportive relationships of the represented person which, in my view, (despite the current conflict) means that she must inform JM, AM and PS of any significant medical event that may befall the represented person. In proposing herself as guardian, she assumes that responsibility.
I therefore appoint BA as the represented person's limited guardian to make her treatment decisions.
The question of what level of contact the represented person has with JM, AM and PS (and his partner) is an area of significant contention, particularly as AM, JM and PS contend that BA is preventing contact. The matter is complicated by the fact that they live outside of Western Australia.
It appears that the represented person is somewhat perplexed with this situation, but in her interview with the Public Advocate she appears open to telephone contact, and if visits occur then they would need to be in a neutral setting (presumably because of the conflict between her children). This is somewhat different to what BA puts when she says the conditions upon which visits occur should be the announcement of the visit and someone else (a third party) being present.
I am concerned that the conditions just mentioned are more likely what BA requires than what the represented person's wishes indicate. This is an example, in my view, of the represented person's vulnerability to the opinions of others. The matter of the restraining order taken out against JM is another example. Whilst I do not want to minimise the impact on the represented person of the incident in June 2011, when she was slapped by JM (admitted by JM), I am puzzled by the fact that the restraining order was initiated months later in October 2011, it seems on BA's evidence, because of what AM, JM and PS did with the motor vehicle, cash and documents. I am not convinced of a causal link between the June 2011 incident and the initiating of the restraining order, and it seems to me that it is more likely than not an expression of the relationship difficulties between the children as they were being played out at that time (and currently).
This matter is not amenable to leaving things as they are. Moreover, as the represented person's health declines, then her residual ability to express a view will also decline. I am therefore satisfied that it is in the represented person's best interests that a guardian be appointed to make decisions about her contact with others. Given what I have said, I must appoint the Public Advocate in this role.
Bound up with this function is the matter of the restraining order that was initiated in respect to JM. The evidence is that the restraining order has been removed or allowed to lapse. Matters of this kind will now come within the authority of the Public Advocate in her limited guardianship role.
I will set a review of the guardianship orders in two years.
The need for an administrator
Unsurprisingly, there have been strong views expressed by the parties about the management of the represented person's estate. It seems that the mistrust of BA, as the effective manager of the represented person's financial affairs, has acutely manifested from the events of September 2011. There is no particular evidence to indicate concerns prior to that time, indeed it was agreed (in an open ended sense) for BA to use the funds of the represented person to renovate her house to enable the represented person to live there.
I accept, on the detailed documentation submitted by BA, that on a daytoday basis she is appropriately managing the represented person's estate. Now I should clarify what I mean by 'daytoday': I mean managing the financial aspects of her daily needs, checking that her regular bills are correct and arranging for payment, ensuring the represented person receives all the income to which she is entitled, and dealing with the bank and government and nongovernment agencies.
There are two significant matters, however, about which I have a concern and which arise from the evidence.
The first (and most significant) of these is the amount of legal costs that have accrued to the represented person's estate. It appears that most of the fees relate to the restraining order, the action for recovery of the cash, sale proceeds and documents from AM and JM, and more recently for BA's legal representation in the proceedings before the Tribunal.
In my view, the action taken by AM, JM and PS in September 2011 to remove cash and documents from the represented person's property and to sell the motor vehicle and hold the proceeds (as they still do now), was preemptive and inflammatory, despite AM's belief that he was acting under the 2006 enduring power of attorney.
It is also my view that the response to the action of AM, JM and PS (the ongoing legal action for recovery) was, in the circumstances, drastic and also likely to further inflame the situation.
Given my findings on the capacity of the represented person and her vulnerability to the opinions of others, I am inclined to the view that it was BA who had the greater carriage of that legal action. There is, indeed, no evidence to indicate that the represented person had any direct communication with JM and AM about the matter.
The second matter involves the loan allegedly made to PS by the represented person, and which BA states in July 2010 is $14,000 and in September 2011 is $11,000. In the material submitted by BA, she states in an email to JM and PS dated 26 September 2011, after stating that the represented person has asked her to put the issue of recovery of the cash and documents in the hands of the Police:
Your behaviour is not surprising as past experience has proven this over and over again.
[PS] by the way Mum wants you to repay the $11,000 that you owe here [sic] this matter will also be resolved through her solicitor.
There is nothing in the financial information provided by BA which indicates that, since her email of 26 September 2011, anything has happened with the alleged loan.
I am not satisfied that there has been a concerted and consistent effort by the children of the represented person to resolve these matters. Unfortunately, it appears to me that in these actions the children of the represented person have been driven, in part, by the animosity between them. As evidenced by the fact that the legal action remains on foot and the funds of the represented person continue to be held by JM, AM and PS.
It is my view that a disinterested person needs to resolve and settle these particular matters in the best interests of the represented person. I otherwise accept that BA can continue to manage the represented person's estate, which is uncomplicated given it consists only of a property (which needs to be sold) and bank funds. BA's ongoing involvement is in accord with the wishes of the represented person.
I have decided that this is best achieved through the authority of an administration order. I therefore appoint BA as the limited administrator of the estate of the represented person with plenary powers, save and accept the finalisation and, if appropriate, settlement of the action against JM, AM and PS arising out of the events of 23 September 2011, and to undertake an investigation and determination of the loan (if any) by the represented person to PS and the making of arrangement for its repayment.
I give both those functions to the Public Trustee.
I will direct BA to make the necessary funds available to the Public Trustee to undertake this role.
I will also direct BA to particularise the legal costs associated with the proceedings in this Tribunal, and to make relevant submissions under s 16(4) of the GA Act as to why those costs should be paid from the assets of the represented person and not be borne by BA herself.
Having made the order for administration, I am satisfied that the continued operation of either of the 2006 or the 2008 enduring powers of attorney is inconsistent with the functions of the administrator, and therefore, pursuant to s 108(1a)(a) of the GA Act, I revoke the powers. This then also deals with the purported revocation of the 2006 enduring power of attorney in October 2011.
I will set a review of the administration order in six months, in anticipation that the Public Trustee will have completed his functions under the order and a longerterm order can be made.
The application made by BA pursuant to s 109(1)(c) of the GA Act to revoke the 2006 enduring power of attorney can be dismissed, given the orders I have made.
The application made by AM under s 109(1)(b) of the GA Act to have an audit conducted of the records and accounts of the 2008 enduring power of attorney held by BA can be dismissed for the following reasons.
I am satisfied that the analysis of the expenditure of the represented person submitted by BA is sufficiently comprehensive, such that an audit would not likely reveal anything in addition to it, and the concerns I have expressed about some of the financial matters are now to be finalised by the Public Trustee.
Other than what I have described there are, in my view, insufficient concerns on the evidence about the financial management of the represented person's estate to warrant an enquiry by way of an audit that would involve a significant cost to her estate.
Orders
Guardianship
On an application for the appointment of a guardian for the represented person, [name deleted], heard before Member J Mansveld on 9 March 2012, it is ordered that:
1.[BA] of [address deleted] is appointed limited guardian of the represented person with the following function:
(a)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person.
2.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited guardian of the represented person with the following function:
(i)To determine what contact, if any, the represented person should have with others and the extent of that contact.
3.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
4.This order is to be reviewed by 9 March 2014.
Administration
On an application for the appointment of an administrator for the represented person, [name deleted], heard before Member J Mansveld on 9 March 2012, it is ordered that:
1.[BA] of [address deleted] is appointed limited administrator of the estate of the represented person with plenary powers save and except for the functions given to the Public Trustee.
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed limited administrator of the estate of the represented person with the following functions:
(a)To bring to a conclusion and, if appropriate, to settle the civil proceedings taken by the represented person against [JM] and [PS] in the Magistrate's Court (case number 17007/11) and if necessary to seek legal advice and representation in the matter.
(b)To investigate and determine whether [PS] owes the represented person any monies advanced by way of a loan or loans and to initiate recovery of such monies either on demand or by way of an arrangement to repay.
3.The enduring power of attorney dated 29 March 2006 by which [the represented person] appointed [AM] to be her attorney, is revoked.
4.The enduring power of attorney dated 26 August 2008 by which [the represented person] appointed [BA] to be her attorney, is revoked.
5.[BA] is to make the necessary funds available to the Public Trustee out of the estate of the represented person to enable the Public Trustee to undertake and complete the functions given to him under this order.
6.[BA] is to particularise the legal fees she has incurred in the proceedings before the Tribunal and, within 21 days of the date of this order, file a written submission with the Tribunal pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) setting out why those fees should be paid from the assets of the represented person and not be borne by her. Upon receipt of the submission, the decision under s 16(4) will be reserved and determined on the papers.
7.This order is to be reviewed by 9 September 2012.
Enduring power of attorney
The applications made under s 109(1)(b) and s 109(1)(c) of the Guardian and Administration Act 1990 (WA) are dismissed.
I certify that this and the preceding [136] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RE AM; EX PARTE AM [2012] WASAT 137 (S)
MEMBER: MR J MANSVELD (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 23 JULY 2012
FILE NO/S: GAA 3643 of 2011
GAA 3644 of 2011
GAA 4082 of 2011
GAA 538 of 2012EX PARTE
AM
First applicantBA
Second applicantAND
JS
Represented person
Catchwords:
Guardianship and administration Parties' legal costs in a proceeding of the Tribunal Starting position is that parties bear their own costs Party can apply for costs to be paid from the assets of a represented person Authority of an attorney under an enduring power of attorney to obtain legal representation for a represented person in Tribunal proceedings
Legislation:
Guardianship and Administration Act 1990 (WA), s 16(4)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(1)
Result:
The represented person is to bear her own legal costs in respect to the proceedings before the Tribunal
Category: B
Representation:
Counsel:
First applicant : N/A
Second applicant : N/A
Represented person : N/A
Solicitors:
First applicant : N/A
Second applicant : N/A
Represented person : N/A
Case(s) referred to in decision(s):
LC and JS [2007] WASAT 127
Re AM; ex parte JS [2012] WASAT 137
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal heard a number of applications under the Guardianship and Administration Act 1990 (WA) for an elderly woman in March 2012.
Legal costs were incurred in the proceedings by the woman's daughter as her attorney under an enduring power of attorney.
The Tribunal found that the daughter had the authority to obtain legal representation for the woman, and that the woman should therefore bear her own legal costs.
Introduction
JS (represented person) is an elderly woman diagnosed with dementia and currently living with a daughter (BA), because she is no longer able to live independently. She has two other children, another daughter (JM) and a son (PS) who both live outside of Western Australia.
There has been much conflict between the children, and that conflict led to a number of applications being made under the Guardianship and Administration Act 1990 (WA) (GA Act) in respect to the represented person.
Those applications were determined by the Tribunal on 9 March 2012, and the reasons for that decision can be found at Re AM; ex parte JS [2012] WASAT 137 (Re AM).
Pursuant to an order of the Tribunal made on 9 March 2012, BA has applied to have the legal costs incurred in the Re AM proceedings paid from the estate of the represented person.
What follows is the decision and reasons for the application for costs. This decision should be read in conjunction with the decision in Re AM.
Reasons for decision
On 29 March 2006, the represented person appointed AM (son in law of the represented person and spouse of JM) as her sole attorney, and on 26 August 2008, she appointed BA as her sole attorney.
Relevant to the decision on costs is the operation of these two enduring powers of attorney.
The significance of the enduring powers of attorney is that, for a period in late 2011, both instruments were being used and the attorneys (AM and BA) believed they had authority to the exclusion of the other. Moreover, the attorneys were in significant conflict at the time and took the view that the other attorney (if acting with authority) was not acting in the represented person's best interests.
As a consequence of the conflict, AM made applications for guardianship and administration orders and an application seeking to have the transactions made by BA under the 2008 enduring power of attorney audited by an auditor appointed by the Tribunal.
BA applied to have the 2006 enduring power of attorney revoked by the Tribunal.
The decision of the Tribunal in Re AM was that BA was appointed as the represented person's administrator to manage her estate, except for two financial matters that were still in dispute. The Public Trustee was appointed in a limited role to deal with those matters. To ensure certainty, and to resolve any inconsistency in the decisionmaking authority, the 2006 and 2008 enduring powers of attorney were revoked. The Tribunal did not consider it necessary to have the 2008 enduring power of attorney audited. The Public Advocate was appointed limited guardian to make decisions about the represented person's contact with JM, AM and PS, but otherwise, the Tribunal decided that guardianship authority was not needed.
BA has made an application that the legal costs in respect to the proceedings in Re AM be paid from the represented person's estate. The substance of her submission is as follows:
•She believed the 2008 enduring power of attorney was valid and had been operating appropriately.
•She believed, after receiving legal advice, that the 2006 enduring power of attorney had been effectively revoked by the represented person executing the 2008 instrument.
•AM made applications for guardianship and administration orders after he, JM and PS sold the represented person's car without permission, took cash, jewellery and legal documents from the represented person's safe, removed household items and refused to unconditionally return those things to the represented person.
•BA believed that it was the intention of AM, JM and PS to place the represented person in an aged care facility and that, if the applications were successful, she would not be able to stop that from happening.
•It had always been the represented person's wish that she live in the community for as long as possible When she had first been diagnosed with dementia, she had become very frightened that she was going to be placed in a nursing home and had begged BA for that not to happen.
•When the applications were made by AM, BA states that she had very little knowledge or understanding of the Tribunal's roles or processes. She became aware of the Tribunal's information brochure which stated that a party could obtain legal representation at their own cost.
•BA took the view that the represented person needed someone to advocate for her who understood the Tribunal's functions and who was not emotionally connected to the outcome.
•Advice was sought from a legal practitioner with Tribunal experience. Unfortunately, the solicitor said she could not take instructions from the represented person because there was doubt about her capacity; however, she could take instructions from BA in her role as attorney under the 2008 enduring power of attorney.
•BA states that she attempted to obtain a personal loan to cover the legal costs but was unsuccessful. She said that she discussed the situation with the represented person who told her that she would be prepared to pay for legal representation because she did not want AM to have authority over her personal and financial affairs.
The relevant legislation
The starting position is that parties bear their own costs in proceedings before the Tribunal (s 87(1) of the State Administrative Tribunal Act 2004 (WA)) (SAT Act).
In applications made under the GA Act, however, there is provision for the costs of a party to be paid from the assets of the represented (or proposed represented) person if that party is found to have acted in the best interests of that person (s 16(4) of the GA Act).
The scope of what may be encompassed by 'best interests' in this context is not straightforward, but cannot be as openended as the term first implies (LC and JS [2007] WASAT 127 at [34] [57]).
The decision of the Tribunal
The first question to be asked is: who incurred the legal costs the subject of the application before the Tribunal? There are two alternatives. The costs were either incurred by BA in her own right, or by BA for the represented person, in her capacity as attorney under the 2008 enduring power of attorney.
The answer to this question is critical to the decision of the Tribunal. If the costs belong to BA, then they fall for determination under s 16(4) of the GA Act (taking into account the intent found in s 87(1) of the SAT Act). If they belong to the represented person, then they fall for determination solely under s 87 of the SAT Act.
I am of the view that the latter applies, despite the initial position of the parties and the Tribunal in Re AM. I am of this view for the following reasons.
Although it was unnecessary to be decided in Re AM because of the appointment of an administrator, I am satisfied, for the purposes of these reasons, that, in executing the 2008 enduring power of attorney in favour of BA, the intention of the represented person was that the 2006 enduring power of attorney be revoked.
None of the parties submitted that the represented person was incapable of executing the 2008 enduring power of attorney.
There is evidence that there was a significant falling out between the represented person and AM and JM in late 2007 (Re AM at [31]), and the change to the enduring power of attorney in 2008 is not inconsistent with the position of the parties that had developed by that time.
In addition, it is clear from the evidence that BA was the person who was managing (or, at the very least, assisting with the management of) the represented person's finances since at least November 2010, and this was not challenged by AM, JM or PS until late 2011 (Re AMat [116]). AM only invoked his apparent authority in September 2011 when the dispute with BA occurred about some of the represented person's property.
The 2006 and 2008 enduring powers of attorney confer the same authority on the respective attorneys, and to that extent:
If there is an inconsistency between the operation of each power, it stands to reason that, to the extent of that inconsistency, they both cannot inhabit the same sphere. (Powers of Attorney, GE Dal Pont 2011: Butterworths, at page 271).
Accepting, then, that BA had a valid authority under the 2008 enduring power of attorney (the instrument was not subject to any conditions or restrictions), as attorney, she was authorised to act on behalf of the represented person against the application by AM that the 2008 enduring power of attorney should be audited and replaced by an administration order. BA was also authorised to seek to have the status of the 2006 enduring power of attorney determined by the Tribunal.
Although the ultimate determination of the Tribunal was that both enduring powers of attorney be revoked (Re AM at [131]), the status of BA was substantially validated by her being appointed administrator of the represented person's estate (save for two limited functions given to the Public Trustee), and by the Tribunal deciding that the 2008 enduring power of attorney need not be audited (Re AM at [117] and [127] [128]).
BA's position was further validated by the Tribunal accepting that the represented person should continue to live with her, despite the evidence of AM, JM and PS which questioned BA's ability to care for the represented person (Re AM at [53], [56] [57] and [103] [104]).
In Re AM, the Tribunal commented upon the failure of all the parties to seek a solution to the dispute that arose in September 2011, other than by expensive legal action (Re AM at [119] [121]). However, once proceedings were initiated in the Tribunal by AM, it was not unreasonable, in my view, for BA to obtain legal representation, given the possible outcomes that she perceived might befall the represented person.
I accept the submissions of BA detailed earlier in these reasons.
I find that BA incurred the legal costs in respect to the Tribunal proceedings as attorney for the represented person. The represented person should therefore bear those costs (s 87(1) of the SAT Act).
Order
The represented person bear her own legal costs in respect to the proceedings before the Tribunal under GAA 3643 of 2011, GAA 3644 of 2011, GAA 4082 of 2011 and GAA 538 of 2012.
I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER