RK - [2022] WASAT 112

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   RK [2022] WASAT 112
MEMBER:   PRESIDENT PRITCHARD
DR E MARILLIER, SENIOR MEMBER
MS F CHILD, MEMBER

HEARD:   12 DECEMBER 2022
DELIVERED          :   21 DECEMBER 2022
FILE NO/S:   GAA 3585 of 2022
GAA 4534 of 2022
GAA 4535 of 2022
GAA 3581 of 2022
GAA 3587 of 2022
AW
Applicant
AND
RK
Represented Person

Catchwords:

Guardianship and administration - Decision of Full Tribunal - Leave to apply for a review of guardianship orders - Application for administration order - Application for the filing of records and accounts of transactions kept by the attorney under the enduring power of attorney - Application for an audit of the records filed by the attorney - Application for the revocation of the enduring power of attorney - Principles to be observed under the Guardianship and Administration Act 1990 - Principles governing grant of leave for review of guardianship order - Whether in need of an administrator of estate - Where no question of capacity - Suitability of family members to be appointed as guardian - Whether evidence that donee under power of attorney failed to act with reasonable diligence to protect estate

Legislation:

Guardianship and Administration Act 1990 (WA) s 4, s 17A, s 40, s 44, s 51, s 64, s 84, s 85, s 86, s 87, s 107, s 109(1)(a), s 109(1)(b), s 109(1)(c), s 110W, s 110ZD
State Administrative Tribunal Act 2004 (WA) s 47

Result:

Application partly allowed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Represented Person	:	N/A
Third Party	:	Ms M Kershaw

Solicitors:

Applicant	:	In Person
Represented Person	:	N/A
Third Party	:	Kershaw Legal

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

EW [2010] WASAT 91
RK [2020] WASAT 53
RK [2020] WASAT 99

RK [2021] WASAT 13

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

AW filed applications with the Tribunal in August 2022 (Applications), under the Guardianship and Administration Act 1990 (WA) (GA Act), in respect of her father RK. The applications, which are set out below, are the most recent in a series of applications since 2020 in which CM (RK's wife), and two of their children (AW and LK), have sought to be appointed his guardian, and to have authority to make decisions in respect of his estate, either pursuant to an enduring power of attorney made by RK on 13 March 2018 (EPA), in which CM was appointed his attorney, or by the appointment of an administrator of his estate. The context for all of these applications has been that of an intractable family conflict between CM on the one hand, and AW and LK, on the other. TK, the third child of CM and RK, has played a lesser role, either seeking to remain neutral or supporting CM.
In the present Applications, as in previous applications made by her, AW alleges abuse and neglect of RK by CM, who is his limited guardian and the attorney appointed under the EPA. AW's Applications are supported by her brother, LK, and her husband, SW.
In programming orders made on 12 October 2022, the Applications were treated as applications pursuant to the following provisions of the GA Act:
(a)application under s 87 for leave to apply for a review of guardianship orders dated 24 August 2021, by which CM was appointed RK's limited guardian to make treatment decisions and the Public Advocate was appointed his limited guardian to determine the contact RK has with others and the extent of that contact (Guardianship order) (GAA 3587/2022);
(b)application under s 40 for the appointment of an administrator of the estate of RK (GAA 3585/2022);
(c)application under s 109(1)(a) for the filing of records and accounts of transactions kept by the attorney appointed under the EPA (GAA 4534/2022);
(d)application under s 109(1)(b) for an audit of the records filed by the attorney (GAA 4535/2022); and
(e)application under s 109(1)(c) for revocation of the EPA (GAA 3581/2022).
An application pursuant to s 110W of the GA Act for a declaration as to the validity of an Advance Health Directive (AHD) was withdrawn by AW on 7 December 2022 as it was ascertained that RK does not have an AHD.
The Applications are opposed by CM, on the basis that the issues raised in the Applications have been raised in the Tribunal on a number of previous occasions and have been determined. In a letter filed on 7 October 2022, CM's solicitor submitted that the Applications are an abuse of process and should be dismissed on that basis pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
However, the Tribunal could only determine whether the Applications were an abuse of process by considering the particular matters raised in support of them. Consequently, the Tribunal determined that the preferable course was for the Applications to be determined substantively rather than being dismissed summarily pursuant to s 47 of the SAT Act. In addition, the Tribunal referred the matter to the Public Advocate for an investigation of RK's current circumstances.
For the reasons which follow:
(a)leave will be granted under s 87 of the GA Act for the review of the Guardianship order pursuant to s 86;
(b)we will make orders to vary the terms of the Guardianship order in the terms discussed later in these reasons;
(c)we will dismiss the application under s 40 for the appointment of an administrator of RK's estate; and
(d)we will dismiss the applications under s 109(1)(a), (b) and (c) in relation to the EPA.

Evidence

A hearing book was prepared for the purposes of this proceeding which included the Applications, material filed in relation to the Applications, the submissions of the parties, the Public Advocate's Investigator's report (Investigator's Report), and reports from a service provider and doctor, in relation to RK. Also included was relevant material from previous proceedings before the Tribunal in respect of RK, including the Tribunal's orders in those proceedings, and transcripts of previous hearings. In addition, some documents filed in the current proceeding were inadvertently left out of the hearing book but were provided to the parties before the commencement of the hearing.
Notwithstanding orders that the parties file any evidence on which they wished to rely in advance of the hearing, the Tribunal also received documentary evidence from AW during the course of the hearing.
In the final hearing we heard, in considerable detail, evidence from AW, LK, and CM, and heard more limited evidence from SW and TK. In addition, we heard submissions from the Public Advocate's representatives, namely the investigator (Investigator) and the delegated guardian.
Save where we indicate to the contrary, we accept the evidence of CM. Generally speaking, we had no cause to doubt the honesty of her evidence. Occasionally she had difficulty recalling smaller details, but on the whole we found her to be a reliable witness. She was clearly exasperated by what she saw as unfounded or repetitively unfounded allegations by AW and LK. However, we did not consider that that response affected the truthfulness of her evidence.
We accept the evidence of TK, which was relatively confined in its scope. While she clearly supported CM's position in relation to the Applications, she occasionally agreed with the concerns raised by her siblings (for example, in relation to the risk of RK falling from his chair). There was nothing in the nature of her evidence, or her demeanour, to cause us to doubt the truthfulness of her evidence, or her reliability.
As for AW and LK, we do not doubt that they care deeply for RK. It is also apparent, however, that they hold considerable animosity towards CM. It was apparent that that coloured their perception of events, in that they inferred bad faith on CM's part in relation to all of her conduct. Furthermore, many of the allegations they made against CM were based almost entirely on speculation, without any recognition on their part of the limitations of their contentions as a result. We also approached the evidence of SW with caution, given he is AW's husband, and clearly shared her views about CM's conduct. Where the evidence of AW, LK or SW was contrary to that given by CM or TK, and not otherwise corroborated, we preferred the evidence of CM and/or TK.

Background

RK is a retired scientist aged 79 years.
RK is married to CM who is the donee of power under the EPA and is RK's appointed guardian, with authority to make treatment decisions. As noted, RK's three adult children are AW, LK and TK. CM is a medical practitioner.
RK has lived in a residential care facility (Facility) since May 2020.
RK has a complex medical history. He is diagnosed with a number of medical conditions including Multi Systems Atrophy and Lewy body dementia. The weight of the medical opinion given by medical practitioners over the course of the proceedings in the Tribunal since early 2020 is that RK lacks capacity to make judgments about his person and his estate.

Previous proceedings before the Tribunal

As acknowledged by AW and by the other parties there have been a number of proceedings in the Tribunal in respect of RK:
(a)GAA 382/2020: In 2020 an application was made by CM for the appointment of a guardian for RK. Member Marillier (as she then was) appointed the Public Advocate as RK's limited guardian.[1]
(b)GAA 1123/2020: AW sought a review of that decision, pursuant to s 17A of the GA Act. The review was heard by a Full Tribunal comprising President Pritchard and a panel. The outcome of the review was that CM was appointed RK's limited guardian. [2]
(c)GAA 951/2020: RK made an oral application pursuant to s 40 of the GA Act for the appointment of an administrator of his estate. Senior Member Mansveld dismissed that application.[3]
(d)GAA 3363/2020: AW sought a review, pursuant to s 17A of the GA Act, of the dismissal of the administration application. A Full Tribunal, comprising Deputy President Glancy and a panel, dismissed the application for review. [4]
(e)GAA 513/2021: An application filed by AW pursuant to s 17A of the GA Act was accepted as an application under s 86 for the review of the guardianship orders which were then in force. Leave was granted pursuant to s 87 of the GA Act. Member McGivern amended the guardianship orders. CM remained the limited guardian for decisions concerning medical treatment, services and accommodation, and the Public Advocate was appointed the limited guardian for contact decisions. [5]
(f)GAA 2694/2021: AW sought a review, pursuant to s 17A of the GA Act of Member McGivern's decision. A Full Tribunal, comprising Deputy President Parry and a panel, revoked the guardianship orders and substituted the Guardianship orders, pursuant to which CM was appointed RK's limited guardian for treatment decisions and the Public Advocate was appointed limited guardian for contact decisions.
[1] Reasons for decision were given at the conclusion of the hearing, but not published. A copy of the transcript of those reasons was included in the Hearing Book (HB) at pages 729-776.
[2] RK [2020] WASAT 53.
[3] RK [2020] WASAT 99.
[4] RK [2021] WASAT 13.
[5] Reasons for decision were given at the conclusion of the hearing, but not published. A copy of the transcript of those reasons was included in the HB at pages 640-654.
The Guardianship orders made in GAA 2694/2021 remain on foot. They are the orders in respect of which AW seeks leave to review. (For ease of reference we refer to the hearing at which those orders were made as the Previous Hearing.)

Principles to be observed under the GA Act

In all proceedings in the Tribunal brought under the GA Act, the Tribunal must observe the principles set out in s 4. The primary concern of the Tribunal is the best interests of RK. [6]
[6] GA Act s 4(2).
In addition, a represented person, such as RK, 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.[7]
[7] GA Act s 4(3).
The principles set out in s 4 of the GA Act make clear that orders should not be made unless they are needed; and if the needs of a represented person, such as RK, can be met by less restrictive means then orders should not be made.[8] A plenary guardianship order may not be made unless the Tribunal is not satisfied that a limited order will meet the needs of the person concerned.[9] If an order is made it should be in the least restrictive terms possible. [10]
[8] GA Act s 4(4).
[9] GA Act s 4(5).
[10] GA Act s 4(6).
Finally, the principles in s 4 require that in considering any matter relating to a represented person, such as RK, the Tribunal should seek to ascertain their wishes as expressed at the time or gathered from their previous actions. [11]

Incapacity of RK

[11] GA Act s 4(7).

It is convenient to deal first with the question of whether RK is a person for whom guardianship and administration orders may be made. None of the parties contended that RK had the capacity to make decisions in respect of personal and financial matters. Having regard to the medical and other professional reports filed in the proceedings before the Tribunal, we are satisfied, and we find, that the presumption that RK is capable of making reasonable judgments in respect of his person and his estate is displaced.
An example of the medical evidence before the Tribunal is a report from geriatrician, Dr CI, dated 13 February 2020. Dr CI reported that RK has a:
…diagnosis [of] dementia syndrome with features and investigations most suggestive of Lewy Body Dementia (LBD) with a likely overlap with features of Multi Systems Atrophy (MSA). Has been seen by neurologists Dr PT, Dr PS, Dr RS have diagnosed a progressive, untreatable neurodegenerative syndrome with features of MSA. Investigations by Dr MW, Dr K and Dr BP [geriatricians] correspondence confirms on 28/03/2019 clinical diagnosis as most likely Lewy Body dementia.[12]
[12] HB page 91.
Dr CI's opinion was that RK is incapable in all spheres of financial, legal and personal decision making and incapable of executing an EPA, EPG or AHD. In respect of RK's capacity to make decisions regarding medical treatment, for example, Dr CI reported that:
Patient has consistently demonstrated poor insight and judgment re his medical condition diagnosis and prognosis. Has unrealistic expectations. He perseverates and is indecisive and is easily influenced by family members present at the time. Despite seeing and being advised by multiple neurologists and geriatricians re diagnosis, management options and prognosis ie no reversible or effective treatments available, he has been unable to grasp or understand this or its implications.[13]
[13] HB page 92.
The most recent medical report received by the Tribunal, from Dr S, RK's current general practitioner, was incomplete. However, nothing in the document filed by Dr S leads us to doubt the neurodegenerative conditions diagnosed, or the opinion of Dr CI regarding RK's capacity. In his report, Dr S stated that RK has been his patient since 8 February 2022 and that Dr S has seen him 14 times. Dr S's opinion is that RK is incapable of executing an EPA, an EPG, or an AHD, or of understanding his voting obligations. He describes RK as non-ambulant and difficult to understand and states that it would be adverse to his health and wellbeing for RK to attend the hearing.
The diagnoses and opinions as to RK's capacity are also supported by RK's former general practitioner, Dr LS, in her report dated 9 October 2020.
The report of the General Manager of the Facility confirms her understanding of the previous diagnoses, and reported on the impacts of RK's conditions on his functioning.
Having regard to the evidence to which we have referred, we are satisfied, and we find, that RK is incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person and in need of oversight, care or control in the interests of his own health and safety.
We are also satisfied, and we find, that RK is unable, by reason of a mental disability, namely dementia syndrome, to make reasonable judgments in respect of any or all of his estate.

Applications for leave for review of guardianship or administration orders - legal principles

The making of a guardianship order or administration order self-evidently has a significant impact on the autonomy of a represented person, and carries with it serious obligations for the appointed guardian and administrator. Not surprisingly, then, the GA Act provides a means to review such orders in certain circumstances.
First, the GA Act requires that when making a guardianship order or administration order, the Tribunal must specify a period, not exceeding five years, within which that order shall be reviewed. [14] Consistent with the principles in s 4 of the GA Act, that statutory requirement for a review recognizes that the question of whether a guardianship or administration order continues to be necessary should be reviewed regularly, but not necessarily frequently, in the best interests of the represented person.
[14] GA Act s 84.
Secondly, a party who is aggrieved by a determination made by the Tribunal may request a review by a Full Tribunal,[15] within 28 days or such further time as the Full Tribunal allows.[16]
[15] GA Act s 17A(1).
[16] GA Act s 17A(2).
Thirdly, the Tribunal is required to review a guardianship or administration order in circumstances where the appointed guardian or administrator is unable to carry out that role, including if the guardian or administrator dies, wishes to be discharged, is rendered physically or mentally incapable of carrying out their duties, or is guilty of such neglect or misconduct or of such default as, in the opinion of the Tribunal, renders them unfit to continue as guardian or administrator.[17] An application for a review in those circumstances may be made by any person.[18] In so far as an application is brought on the basis of neglect or misconduct by the guardian or administrator, it is not the Tribunal's role to review the merits of the myriad of daily decisions which may be made by a guardian or administrator in the exercise of their decision making authority. That reflects the fact that reasonable minds may differ about the merits of individual decisions. The obligation on the guardian or administrator is to act in what they consider to be the best interests of the represented person. Consequently, a review in those circumstances is confined to cases of such serious neglect, misconduct or default as to render the guardian or administrator unfit to continue.
[17] GA Act s 85(1).
[18] GA Act s 85(2).
Fourthly, and no doubt because of the significance of guardianship or administration orders, the GA Act also gives a right of review, at any time, to the persons directly involved in the performance of guardianship or administration orders, namely a represented person, a guardian or an administrator, and the Public Advocate or the Public Trustee.[19]
[19] GA Act s 86(1).
The GA Act permits other persons to apply for a review at any time, but they must obtain the leave of the Tribunal to do so.[20] Under s 87 of the GA Act, the Tribunal may grant leave to the person to apply for a review, either unconditionally or subject to any condition. The Tribunal may grant leave only 'if it is satisfied that because of a change of circumstances or for any other reason' a review should be held.[21]
[20] GA Act s 86(1).
[21] GA Act s 87(5).

In our view, as a matter of legislative intention, three reasons can be discerned for that requirement for leave. First, an application to review a guardianship or administration order, and any alteration to that order which might be made, is likely to be a cause of anxiety and disruption in the life of a represented person. For that reason, guardianship and administration orders should not be displaced without good reason, and persons who are not directly affected by the guardianship order or administration order should not be permitted to seek a review of those orders as of right.
Secondly, as already mentioned, when making a guardianship or administration order, the Tribunal is expressly required to fix a period for the review of any guardianship or administration order. In doing so, the Tribunal will take into account the evidence bearing upon the question whether a review within a period less than the maximum fiveyear period for a review is warranted. In those circumstances, the guardianship or administration order should not be reviewed in advance of the review period specified by the Tribunal unless there is a good reason for doing so.
Thirdly, in determining whether to make guardianship or administration orders, the Tribunal engages in an inquisitorial process. It identifies those persons who may have information relevant to the applications it is required to determine, invites or requires those persons to provide evidence and submissions, and gives parties an opportunity to be heard at a hearing. The Tribunal is entitled to expect that the parties will draw to its attention, prior to or at the hearing, any evidence relevant to whether a guardianship or administration order should be made, or in relation to related questions such as the suitability of persons for appointment as the guardian or administrator. The requirement for a change of circumstances, or other reason sufficient to warrant a review, reinforces the importance of providing all relevant information to the Tribunal at the hearing at which the challenged decision was made.
In our view, in order to determine whether there has been a change of circumstances, the Tribunal must make a comparison between the circumstances in existence at the time the challenged decision was made, and those in existence at the time of the application for leave. The Parliament's clear concern is to ensure that orders of the Tribunal which so profoundly affect the life of a represented person should not be able to be reviewed, on the application of persons other than those directly involved in the implementation of the orders, without good reason. That being the case, an applicant for leave who was a party who participated in the hearing at which the challenged decision was made, and who relies on a change in circumstance, will ordinarily need to identify some new evidence:
(a)not previously drawn to the Tribunal's attention;
(b)which is relevant to the appointment of a guardian or administrator for the represented person; and
(c)which was not known by the applicant for leave, or which was not something that could reasonably have been ascertained by them, prior to the hearing at which the challenged decision was made.
Reliance on matters previously drawn to the Tribunal's attention at the hearing at which the challenged decision was made, or which were known by the applicant for leave, but not drawn to the Tribunal's attention at that hearing, or which could reasonably have been ascertained by the applicant for leave prior to the hearing of the challenged decision, and drawn to the attention of the Tribunal in that hearing, will not ordinarily constitute a change of circumstances.
Persons who were not parties at the hearing at which the challenged decision was made, or who do not rely on a change of circumstances, will need to satisfy the Tribunal that there is some 'other reason' that the review should be held. It is not the case that any reason whatsoever will suffice. The reason must be such as to warrant revisiting the issues dealt with by the Tribunal at the hearing at which the challenged decision was made. By way of example, such a reason may exist if a person who should have been given notice of the hearing of the challenged decision was not, in fact, made aware of it. Another example of an 'other reason' may be if an applicant for leave produces evidence, or identifies an issue, which would suggest that the challenged decision was not, or is no longer, in the represented person's best interests.
In determining whether leave should be granted - either on the basis of a change of circumstances, or on the basis of an 'other reason' - the Tribunal's primary concern is the best interests of the represented person.[22]

The basis for AW's application for leave to apply for a review

[22] GA Act s 4(2).

In the present case, AW (supported by LK) contended that the following matters amounted to a change of circumstances, or constituted an 'other reason' for the grant of leave for a review of the Guardianship Order:
(a)An alleged failure by CM to arrange for RK to be reviewed by specialist doctors. AW submitted that RK's eyesight had not been reviewed by a specialist, nor had his hearing, and that both were impaired.
(b)An alleged failure by CK to ensure that RK's prescription of anti-depressant medication was reviewed by a specialist, and not merely subject to oversight by his general practitioner Dr S.
(c)An alleged failure by CM to ensure that RK was reviewed by a doctor sufficiently regularly to ensure his medical treatment was appropriate for his needs. AW relied on the fact that RK had been on a trial of lignocaine patches for pain relief for seven months, with no consideration of its possible side effects, before Dr S concluded that it was ineffective and should be discontinued.
(d)An alleged failure by CM to provide a wheelchair suitable for RK's needs, and which would permit family members to take him on outings outside the Facility. In addition, AW alleged that CM failed to provide a suitable arm chair for RK's daily use, which provided him appropriate support and comfort, and which also protected him from the risk of falls.
(e)Deteriorating communications between CM, on the one hand, and AW and LK, on the other hand, allegedly as a result of:
(i)CM's unwillingness to provide written information to AW and LK in response to their requests, or to direct the Facility to do so;
(ii)Family Court proceedings commenced by CM to secure access to her grandchildren, namely the children of AW and SW; and
(iii)four complaints made to the Australian Health Practitioners Regulation Agency (AHPRA) which complaints alleged that CM improperly treated family members, and which complaints are suspected by CM to have been made by AW.
(f)CM was alleged to have withheld documentation, namely:
(i)a taxi subsidy voucher book; and
(ii)a proof of COVID-19 vaccination certificate for RK.
(g)An allegation that CM entered the Facility while she had COVID-19. However, as the hearing proceeded, it appeared that this allegation was, in fact, that CM entered the Facility after she had recovered from COVID-19 but contrary to the guidelines then in force in relation to visits to aged care facilities.
Many of these allegations were framed by AW in emotive terms such as 'neglect', 'abuse', and 'coercive control.' The evidence did not support findings of that kind. Most of the allegations are directly or indirectly attributable to the breakdown of the relationship between CM, and AW and LK, and to the absence of adequate communication between them.
Turning to the specific allegations, we make the following findings.

The alleged failure by CM to arrange for RK to be reviewed by specialist doctors (a)

As we have noted, AW submitted that RK's eyesight had not been reviewed by a specialist, nor had his hearing, and that both were impaired.
This allegation does not warrant the grant of leave. As to change of circumstance, AW's allegation in relation to RK's eyesight was raised and dealt with in an earlier hearing.[23] A report before the Tribunal at the Previous Hearing made clear that RK's eyesight had been reviewed.[24]
[23] HB page 128 (report of CR, GM at the Facility, 17 March 2021, which was in evidence at the Previous Hearing).
[24] HB page 128.
In any event, there was no, or no new, evidence to support AW's allegation. Her application for leave, in this respect, depended upon her contention, unsupported by any independent evidence, that RK had had deterioration in his eyesight and that he had not seen a specialist to address that, and that RK was hard of hearing but did not wear a hearing aid.
CM's evidence was that RK's medical treatment is case managed by Dr S, his general practitioner. RK sees specialists as recommended by Dr S. His next specialist consultation will be with a geriatrician in early 2023.
As for his eyesight, CM had made an appointment for RK to see an ophthalmologist prior to the Previous Hearing. In the end, RK was too unwell to attend, and subsequently refused to reschedule the appointment. However, CM informed us that RK had seen an optometrist who had visited the Facility. CM reported that RK had lost some vision as a result of a stroke, but that the optometrist had advised that glasses could not improve RK's vision.
As for RK's hearing, CM told us that RK had some hearing loss, but refused to wear his hearing aid. She noted that RK sometimes has difficulty in interpreting what people say but that this may be attributable to his cognitive difficulties rather than hearing loss.
The Investigator's Report details enquiries the investigator made of Dr S, in which Dr S stated, amongst other things: that he had referred RK to a geriatrician on 11 October 2022; that the referral was decided in consultation with CM; that Dr S receives most information regarding RK from the nursing staff at the Facility and discusses any decisions which are needed with CM; that these discussions are in keeping with what he would expect when discussing a patient's care with any family member, regardless of their professional background and that his interactions with CM follow a normal doctor to patient representative pattern. Furthermore, Dr S did not believe that CM had made any decisions that were contrary to RK's interests, and rejected any claim that he was influenced by a collegiate relationship with CM (who, as we have noted, is a medical practitioner).[25]
[25] HB page 164 (OPA Investigator's Report 5 December 2022).
For the reasons already given, we prefer the evidence of CM to that of AW. In any event, CM's evidence was corroborated to some extent by the information provided to the Investigator by Dr S. We find that RK is being seen regularly by Dr S (his treating doctor), referred to specialists in accordance with his advice, and that CM has taken steps to ensure that appropriate visual and hearing aids are available to RK.
As AW's allegation does not have any factual foundation, we are not satisfied that it constitutes an 'other reason' sufficient to warrant the grant of leave to review the Guardianship order.

The alleged failure by CM to ensure that RK's prescription of antidepressant medication was reviewed by a specialist, and not merely subject to oversight by his general practitioner Dr S (b)

This allegation does not constitute a change in circumstance. AW's allegation proceeds on the basis that RK has been taking antidepressant medication for a lengthy period (at least prior to the Previous Hearing), without adequate review. That is not a new circumstance.
Further, we are also not satisfied that this allegation constitutes an 'other reason' sufficient to warrant the grant of leave. CM's evidence, which we accept, was that RK was first prescribed anti-depressant medication by a specialist doctor when he suffered a bout of severe depression during a hospital stay. As a result of the anti-depressant medication, his mood improved. CM explained that she would be very concerned about discontinuing RK's use of this medication without very good reason, given the seriousness of the depressive episode he previously suffered. She said that Dr S had described the dosage as low, and he had raised no concerns with her about RK's continued use of this medication.
The Investigator's Report confirmed Dr S's view that:
' … he has seen no clinical reason to cease or change this medication. When asked about any potential complications with the use of anti-depressants in patients with Lewy Body Dementia, Dr S advised that there is always a balance when determining the therapeutic benefits of a drug balanced against any risks. He noted that depression is a common and very serious issue in residents in aged care settings. In any case, changes to these kinds of medications would often be overseen and recommended by specialists.'[26]
[26] HB page 164 (OPA Investigator's Report 5 December 2022).
We find that contrary to AW's contention that the use of anti-depressants has not been subject to appropriate review, it was in fact commenced on advice from a specialist, has provided observable clinical benefit, has been continued by Dr S after considering the balance of risks and benefits, and that any proposed change to the medication, rather than its continuation, would raise the possibility of specialist review. As stated above, given that factual position, we are not satisfied that this allegation by AW constitutes an 'other reason' that would justify the grant of leave for a review of the Guardianship order.

The alleged failure by CM to ensure that RK was reviewed by a doctor sufficiently regularly to ensure his medical treatment was appropriate for his needs (c)

As already noted, AW relied on the fact that RK had been on a trial of lignocaine patches for pain relief for seven months, with allegedly no consideration of its possible side effects, before Dr S concluded that it was ineffective and should be discontinued. In addition, LK's written submissions of 6 December 2022 indicate his concern that lignocaine patches may cause sedation, however he acknowledged in the hearing[27] that the side effects he discovered (on the internet) which were attributed to lignocaine patches do not actually include sedation. [28]
[27] ts 17, 12 December 2022.
[28] HB page 241 (LK submissions 6 December 2022).
This allegation did not constitute a change of circumstance. On the evidence, RK commenced use of the lignocaine patches in mid2021, before the Previous Hearing.
Further, and in any event, this allegation does not have any support in the evidence, and for that reason we do not consider that it constitutes an 'other reason' sufficient to warrant the grant of leave for a review, for the following reasons.
The management of RK's use of the lignocaine patches provides no support for AW's allegation. The evidence of TK (which we accept) was that RK was commenced on the lignocaine patches after returning from an admission to hospital in mid-2021, having recovered from a life-threatening illness. While in hospital he had developed pressure sores and severe bilateral hip pain. The lignocaine was to alleviate this pain as RK slowly recovered. After his pain settled, use of the patches ceased.
Further, according to an earlier investigation report prepared by the Public Advocate's investigator at the time, RK's previous general practitioner advised that RK's condition means he has a poor prognosis with rapid decline and there is no benefit in having repeated meetings or discussion of alternative management or treatment, as he requires a comfort model of care. She also commented that CM had done everything she possibly can for RK.[29]
[29] HB page 178-179 (OPA Investigator's Report 11 August 2021).
Finally, we note that Dr S became RK's general practitioner in February 2022, more than six months after the 2021 hospitalisation, and the commencement of the lignocaine patches. He has seen RK 14 times since then. We find there is no basis for AW's allegation that CM is not ensuring RK is seen sufficiently regularly to ensure his medical treatment is appropriate to his needs.

The alleged failure by CM to provide a wheelchair suitable for RK's needs, and which would permit family members to take him on outings outside the Facility, and the alleged failure by CM to provide a suitable arm chair for RK's daily use, which provided him appropriate support and comfort, and which also protected him from the risk of falls (d)

AW and LK gave evidence that RK's wheelchair had been pulling to one side, inhibiting their ability to safely take RK out for walks near the Facility, and on one occasion requiring AW to call LK for help to get RK back to the Facility after she became unable to move the wheelchair further.
CM's evidence, which we accept, was that the wheelchair was sourced on the recommendation of the occupational therapist (OT) at a transitional care facility to which RK was discharged from Osborne Park Hospital in early 2020.[30] At that time, the Public Advocate was RK's guardian for treatment, accommodation, services and contact decisions. As RK's attorney under the EPA, CM authorised the expenditure of $4,500 to purchase the recommended wheelchair, which included a Tilt and Recline (or Tilt in Space) feature. CM acknowledged the additional functions do make this a heavy wheelchair, but says that she acted on professional advice regarding what would be best for RK. [31]
[30] ts 46, 12 December 2022; see also report of Delegated Guardian of Public Advocate, 28 April 2020, HB page 199.
[31] ts 46, 12 December 2022.
CM also stated, and we accept, that she took action to have the manufacturer service the wheelchair once she became aware of the concerns about it pulling to one side, and this was completed three days prior to the hearing. [32]
[32] ts 46, 12 December 2022.
These allegations do not amount to a change in circumstance. AW and LK have raised concerns about the wheelchair at previous hearings. When RK was more active, their concerns additionally related to having a folding wheelchair to allow car trips, but RK's mobility is now so impaired that all trips need to be by wheelchair taxi. Issues around the wheelchair pulling to one side were raised previously.
The issues raised by AW and LK in relation to the wheelchair also do not constitute an 'other issue' sufficient to warrant the grant of leave for a review. The Investigator's Report indicates that a private physiotherapist - engaged by CM on an ongoing basis for RK - advised that the wheelchair was 'fine' and adequate for RK's needs.[33] The allegations in relation to the wheelchair could not, in our view, provide any basis for reconsidering whether the Guardianship order remains in RK's best interests.
[33] HB page 171 (OPA Investigator's Report 5 December 2022).
AW also contends that the armchair in RK's room is sub-optimal, and has sustained stains as a result of RK's incontinence. These concerns are not new. They were raised in an email to OPA dated 9 August 2021,[34] and were before the Tribunal in the Previous Hearing. They do not amount to a change in circumstances.
[34] HB page 271.
AW and LK also stated their concerns that cushions used with the armchair, which were meant to provide support to RK, were moved by staff in inconsistent ways, and that as a result, they have found RK in positions where he appears at high risk of falling from the chair.
CM's evidence, which we accept, was that the cushions were recommended by the OT and physiotherapist, that RK has not sustained a pressure injury in two years at the Facility, that the staff's frequent moves of RK in his chair are part of a pressure area management plan, and that the better than usual staff to patient ratios at the Facility, and frequent checks by staff, alleviated the acknowledged risk of RK moving himself into a hazardous position. CM's belief was that RK had not actually fallen from the chair, as she would have been alerted by the staff if he had.

TK stated that she agreed with her siblings that RK at times gets into precarious positions in the chair, but did not believe it was because of the armchair itself. She had observed RK be repositioned by staff and then very rapidly reposition himself, and she felt that without tying him down it could not be prevented. We accept her evidence.
The Investigator's Report indicated that RK's private physiotherapist said that
' … there is almost always more than you can [do] and there had been some previous discussion with CM about changing RK's chair. She said that doesn't mean that the chair is unsafe, just that there may be better options on the market for him. She was unable to recall why the chair didn't end up getting changed (i.e., was it a financial issue, or a difference of opinion?) but commented that the seating has been further improved by the addition of the supplementary cushioning.' [35]
[35] HB page 171 (OPA Investigator Report 5 December 2022).
We find that there is no compelling evidence that RK's armchair is unsuitable for RK, having regard to his needs. More particularly, nothing in this allegation raised any question as to whether the Guardianship order continued to be in RK's best interests. We are not satisfied that this allegation provides an 'other reason' for the grant of leave for a review of that decision.

)Deteriorating communications between CM and AW and LK, allegedly as a result of CM's unwillingness to provide written information to AW and LK in response to their requests; and failure to direct the Facility to do so; and as a result of Family Court proceedings commenced by CM to secure access to her grandchildren, namely the children of AW and SW; and as a result of four complaints made to the Australian Health Practitioners Regulation Agency (AHPRA) alleging that CM improperly treated family members, which complaints CM suspects were made by AW (e

Concerns regarding conflict and communication between CM, AW and LK have been present throughout all of the Tribunal's hearings in regard to RK. In essence, AW and LK say that telephone communication is ineffective because it rapidly becomes argumentative, and they require CM to provide information to them regarding RK's condition and medication in writing. However, they claim that the provision of written information has not been sufficient to allow them to understand what limitations or precautions should be observed to ensure his safety when they take RK for outings. [36]
[36] See, for example, HB page 238 (LK submissions of 6 December 2022).
CM says she has attempted to maintain communication and the flow of information. Her evidence, which we accept, was that AW and LK insist she not contact them by telephone (which would be her preference). She says they make no response to texts or emails that she sends. CM submitted that some responsibility for poor communication must be taken by those putting bizarre requirements or conditions on that communication.
AW and LK also allege that CM has instructed the Facility's staff, and external health professionals, including RK's general practitioner and the private physiotherapist, not to provide information to them.[37] In contrast, AW and LK said that, historically, RK had asked them to take him to appointments, which they had done, and this had allowed them to talk through and understand the information with him. [38]
[37] See, for example, HB page 240 (LK submissions of 6 December 2022); ts 19, 12 December 2022.
[38] HB page 226 (AW submissions of 24 November 2022).
When asked if she had told the Facility not to communicate with AW and LK, CM replied 'I've never done [instructed the Facility not to tell RK's children anything about his situation] and they have opted to have a clear line of responsibility, I guess, and I can totally understand why they would do that. I've never instructed them in that regard'.[39] This is consistent with the email correspondence between LK, AW and the Facility from March 2021, where the Facility's staff referred to the Tribunal orders as indicating who was the point of contact regarding medical information (that is, CM). At no point did the staff indicate, in that email, that CM had directed them not to speak with AW and LK. Furthermore, in the Investigator's Report, the Investigator noted that in response to his enquiries about this issue, Dr S, a registered nurse at the Facility, and RK's private physiotherapist, had all denied that CM had instructed them not to communicate with AW and LK.[40] We find that there is no evidence that CM has directed staff of the Facility or health professionals not to communicate with AW and LK.
[39] HB page 226 (AW submissions of 24 November 2022).
[40] HB page 164-165 (OPA Investigator's report 5 December 2022).
However, CM acknowledged in her evidence that she had been reticent to share the details of RK's current medications with AW and LK. She explained that this was due to her concern about the risk of fragmentation of care. In the Previous Hearing, CM submitted that AW and LK had led RK to believe that his medications were doing him harm, and he had refused to take them, and become anxious about taking medication.[41] It is apparent, and we find, that CM's approach to the provision of information about RK's medication has been motivated by her belief as to what is in his best interests.
[41] CM submissions in GAA 2694/2021, page 4.
CM observed that the situation with RK's health is volatile and changeable, and that AW and LK are aware of this. However, CM also stated that there are not a lot of medical decisions for her to make at present and RK's care is simply continuing. CM's evidence, which we accept, was that she has notified AW and LK by telephone call, text or email when RK has been seriously unwell or hospitalised, and has responded to other email enquiries from them (in relation to requests for extra funds to be left in RK's wallet, information on the whereabouts of the taxi voucher book and to deal with the wheelchair needing a service).
As an example of her endeavours to ensure she notified AW and LK of decisions in relation to RK's treatment, CM gave evidence, which we accept, that she had alerted LK and AW when she made a decision to agree to anti-viral treatment for RK when he contracted COVID-19, and when he was unwell in July 2022.
We do not accept the claim by AW and LK that CM's provision of written information has not been sufficient to allow them to understand what limitations or precautions should be observed when they take RK for outings, in order to ensure his safety. There was evidence of communications by AW with the Facility, which has included an explanation as to why RK's temperature regulation is a factor in the duration of outings, and which explained that difficulties with transfers into and out of a car were the reason that all outings needed to be by wheelchair taxi from November 2020.[42] We are satisfied that avenues of communication exist to allow AW and LK to have sufficient information to take RK on outings safely.
[42] HB page 362-362 (Email of CR to AW of 13 November 2020, included in Annexure 9 of AW's submissions for GAA 2694/2021 (the Previous Hearing)).
We are not satisfied that the various allegations of communication difficulties, which are relied upon by AW and LK, constitute a change in circumstances. On the contrary, those difficulties are long-standing. They now pose no greater threat to RK's well-being, or best interests generally, than they have in the past.
We are also not satisfied that the various allegations of communication difficulties raise any question as to whether the Guardianship order remains in RK's best interests, and consequently we are not satisfied that these allegations provide an 'other reason' for the grant of leave for a review of that Decision. Nothing in the evidence has caused us to be concerned that CM's communications via telephone call, text and email were not reasonable and appropriate. A guardian with responsibility for treatment decisions is not under any obligation to comply with the communication preferences of a represented person's family members. Rather, the communication must be adequate to keep them informed of critical matters (such as acute deterioration or hospitalisation).
As for the Family Court proceedings, SW noted that the Family Court applications are ongoing, and involved CM seeking access to SW and AW's children. He stated that those proceedings had increased the conflict between CM and AW, and meant there is even less flow of information regarding RK's care. AW stated that she had become even less prepared to communicate in writing with either CM or TK, due to her fear that such correspondence will be tendered as evidence in the Family Court matters.
TK gave evidence that communication between CM and AW was no worse following the Family Court proceedings, as it was previously almost non-existent between AW and CM. She said it was LK and AW's choice not to attempt any communication.
The Family Court proceedings pre-date the Guardianship order, and were considered in both the Previous Hearing and in the hearing of GAA 513/2021 which preceded it. They do not constitute a change in circumstances. Nothing in this allegation raised any question as to whether the Guardianship order remained in RK's best interests. Any conflict between CM and AW as a result of the Family Court proceedings does not, in our view, provide a basis to doubt CM's suitability to make medical treatment decisions in relation to RK. We are not satisfied that the Family Court proceedings, and any impact they have had on communications between CM and AW, constitute an 'other reason' sufficient to warrant the grant of leave for a review of the Guardianship order.
As for the complaints to AHPRA, which CM told us were anonymously made, they do not constitute a change of circumstance. CM told us that those complaints had been under consideration by AHPRA for three years. On the evidence, we are also not satisfied that those complaints constitute an 'other reason' to review the Guardianship order.

The allegation that CM withheld documentation, namely a taxi subsidy voucher book and a proof of COVID-19 vaccination certificate for RK (f)

LK gave evidence that he had ordered a new taxi subsidy voucher book when the book kept at the Facility, for use by RK and family members when going on outings, was running low. LK said he became perplexed when it did not appear, and made enquiries with both the Department of Transport (who assured him it had been sent) and the Facility staff (who had not seen it, but suggested he contact CM, who manages all RK's correspondence). It was only at that point that LK emailed CM. He said that the book then appeared at the Facility when he subsequently visited.
CM's evidence was that she collected the mail as usual, discovered the voucher book and assumed (she admits erroneously) that the Department of Transport had sent it as a routine replacement for the voucher book she kept at her home. As soon as she was alerted by LK's email that the book was in fact ordered by LK to replace the book at the Facility, she brought it in to the Facility. TK's evidence corroborated that evidence. We prefer the evidence of CM and TK to that given by LK. We find that there is no evidence which supports the allegation that CM withheld the taxi subsidy voucher book.
This allegation did not constitute a change of circumstance, nor does it constitute an 'other reason' sufficient to warrant the grant of leave. In our view, this allegation was symptomatic of the additional stresses and delays experienced by RK's family as a consequence of their unwillingness to communicate with one another about basic dayto-day arrangements. This denies them the mutual assistance and support which might otherwise benefit them and especially RK.
As for the allegation that CM refused to provide a copy of RK's COVID-19 vaccination certificate, LK gave evidence that CM refused to provide the certificate, and her refusal to do so had the result that for a period of several months in 2022, LK and AW were prevented from taking RK out to venues which required proof of vaccination for entry. LK provided to the Tribunal, in support of his evidence, an email dated 11 February 2022. In that email, CM stated that as the guardian with responsibility for treatment decisions for RK, she had made a decision that attending such venues represented an unacceptably high risk to RK's health. Her view was that family members could take RK to outdoor areas or private settings or get takeaway from indoor venues.
CM did not dispute that she declined to provide a copy of the COVID-19 vaccination certificate. Her evidence was that she felt this represented a reasonable balance of risk and benefit, and denied that she was using her treatment guardian status to over-reach into contact decisions.
We accept CM's explanation. We are satisfied, and we find, that the refusal to provide the COVID-19 vaccination certificate represented a decision she made, within what she regarded as her authority as RK's guardian with responsibility for treatment decisions (as his COVID-19 vaccination was). We are also satisfied, and we find, that she made that decision on the basis of her belief that it was in RK's best interests, given the significant risk of RK's exposure to COVID-19 in the community and the fact that COVID-19 represented a serious risk to RK's health.
That being the case, in our view, this allegation is not properly characterized as a change in circumstance. Nor does it constitute an 'other reason' sufficient to warrant the grant of leave. The allegation did not cast doubt on whether the Guardianship order continued to be in RK's best interests, in so far as it involved the appointment of CM as RK's guardian with respect to treatment decisions. On the contrary, the evidence suggested that CM was acting in what she believed to be RK's best interests.

The allegation that CM entered the Facility after she had recovered from COVID-19 but contrary to the guidelines then in force in relation to visits to aged care facilities(g)

AW produced evidence at the hearing in the form of a letter dated 19 July 2022 from CM's solicitor in the Family Court proceedings, stating that CM had tested positive for COVID-19 that day, and requested to participate in a scheduled Family Court proceeding by telephone. AW also produced a photo of the Visitor's Register at the Facility, indicating that CM had signed in on 31 July 2022. At the top of the Visitor's Register, above the table where visitors complete their details, are the words: 'As a condition of entry, I acknowledge that: I am feeling well, nor have I had any flu like symptoms for the last 14 days'. AW submitted that the evidence showed that CM entered the Facility on 31 July 2022, which was 12 days after she tested positive for COVID-19.
CM did not deny that she entered the Facility on 31 July 2022, and that she had signed the Visitor's Register. She explained that she had become unwell on 15 July 2022, and tested negative four times prior to testing positive on 19 July 2022, but she recalled still being symptomatic on that day. That being the case, it is clear that CM had in fact had flu-like symptoms within the 14-day period prior to entering the Facility on 31 July 2022.
CM stated that she had effectively been in isolation since 15 July 2022, and that after testing positive on 19 July 2022, she completed the mandatory seven-day isolation period between 19 and 26 July. Her evidence was that by 31 July she was asymptomatic and that she was testing negative for COVID-19, so she thought it was permissible for her to visit the Facility. It was not entirely clear from CM's evidence whether or not she actually read the declaration on the Visitor's Register or was mistaken about its meaning, or made an untrue declaration. It was also unclear whether she appreciated that aged care facilities had additional protective requirements in place. However, given that CM is a medical practitioner, we would have expected her to be fully aware of the special requirements in place for aged care facilities. On the other hand, we are satisfied, having regard to her medical qualifications and her evident care for RK, that she would not knowingly have done anything to jeopardise his health and wellbeing. Consequently, we found her evidence in this respect to be unsatisfactory. Her reluctance to admit that she may have entered the Facility contrary to its entry requirements did not do her credit. However, in the end, we are not satisfied that the evidence constituted an 'other reason' sufficient to warrant the grant of leave to review the Guardianship order. The allegation did not cast doubt on whether the Guardianship order continued to be in RK's best interests, in so far as it involved the appointment of CM as RK's guardian with respect to treatment decisions. The evidence also did not establish a change of circumstances.
As already noted, in the course of the Applications and at the hearing, AW made generalised allegations about neglect, abuse, sedation, and over-medication of RK. These have all been argued before the Tribunal in previous applications. Although given an opportunity to do so AW did not call any witnesses to support those allegations in this proceeding. Despite saying, in a directions hearing, that she could provide a list of witnesses in support of her allegations, AW failed to do so, or to request that the Tribunal issue a summons to any reluctant witness.
None of AW's assertions of neglect, abuse, sedation, and overmedication of RK were supported by the evidence, and in particular none were supported by the evidence of the health professionals questioned by the Investigator. There is nothing to support a finding that the observed deterioration in RK's condition is attributable to any neglect of RK's health care, as a result of decisions made by CM. On the contrary, the evidence amply demonstrates that RK has medical treatment in the Facility, and a privately engaged physiotherapist visits him. RK is reported to require assistance to eat each evening and family members (including CM, LK and AW) visit to support this. RK's ongoing deterioration is a feature of his diagnoses, and symptoms of low blood pressure, constipation, urinary retention and functional decline are all noted in the medical evidence, including the discharge summary from Osborne Park Hospital of 18 March 2020, in the medical report and summary of Dr CI of February 2020, and in the discharge summary from Hollywood Private Hospital of 26 March 2019.
It is apparent that AW and LK, neither of whom are medically qualified, do not agree with CM's decisions in relation to RK's medical treatment. However, s 51 of the GA Act requires that a guardian must act according to the guardian's opinion of the best interests of the represented person. That others may have a different view as to what are the best interests of the represented person is not to the point. Nothing in the evidence suggests that, in her decisions concerning RK's medical treatment, CM has failed to act reasonably and in accordance with her view of RK's best interests.

Should leave for a review be granted on the basis of the matters relied upon by AW?

We are not satisfied that there has been a change of circumstances since the Previous Hearing, which warrants the grant of leave for a review. We are also not satisfied that the matters relied upon by AW and LK constitute an 'other reason' sufficient to grant leave for them to apply for a review.
However, in the course of the hearing, it became clear that the absence of any decision-making authority in relation to the services to which RK should have access, and in relation to where he should live, may give rise to further disputation, which would not be in RK's best interests. We turn to consider whether that possibility - albeit that it was not relied upon by AW and LK- constitutes an 'other reason' for the grant of leave to them to apply for a review.

An alternative reason for the grant of leave for a review of the Guardianship order

Previously, RK's guardian was given authority to make decisions concerning medical treatment for RK, the services to which he should have access, and in relation to his accommodation. In the Guardianship order, authority to decide on services and accommodation for RK was removed, on the recommendation of the investigator from the Office of the Public Advocate at the time.
However, the Investigator's Report which was prepared for the hearing of the Applications identified that there appears to be a continuing conflict between RK's family members, in relation to the services to which he should have access. A proposal for a possible change in RK's accommodation, either within or from the Facility, was also flagged.
In the course of their evidence, AW and LK raised a number of concerns about the adequacy of the services to which RK has access, and their view that he should be in a larger room at the Facility, which would better suit his needs, including his need for sufficient space for a hoist to assist with him getting into and out of bed.
Given the long history of conflict in this family, we do not consider that it would be in RK's best interests for there to be any ambiguity or uncertainty as to who has authority to determine the services to which RK has access and as to where he should live. We find that the concerns expressed by AW and LK, together with the absence of any express conferral of authority on the guardian with respect to these decisions, gives rise to the real possibility of an emerging conflict within the family as to who has authority to make decisions of this kind on RK's behalf.
We are satisfied that that possibility, and the need for clarity as to decision-making authority in relation to services and accommodation, constitutes an 'other reason' sufficient to warrant the grant of leave to permit AW to apply for a review of the Guardianship order.

Review of the Guardianship order

In the course of a directions hearing in relation to the Applications on 12 October 2022, and again in the course of the hearing of the Applications, it was made clear to the parties that if the Tribunal determined that leave should be granted to review the Guardianship order, the Tribunal would proceed immediately to deal with that review.
The Tribunal's role in such a review, is to approach, afresh, the question of whether the requirements of the GA Act for the appointment of a guardian are met, and if so, to determine who should be appointed guardian, and the functions which should be conferred on them.
RK has attained the age of 18 years. For the reasons set out above at [24] to [30] we find that the presumption of capacity has been rebutted, and that RK is incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person and is in need of oversight, care or control in the interests of his own health and safety.

The need for the appointment of a guardian, and the functions which should be conferred on the guardian

We are satisfied that RK needs a guardian to be appointed, and that no less restrictive form of decision making will suffice to meet his needs.
There is no doubt that RK has an ongoing need for a guardian for medical treatment decisions, given his complex diagnosis and ongoing deterioration. Despite CM's position at the top of the hierarchy of persons who might be identified as the 'person responsible' from whom consent to medical treatment could be obtained, we are not satisfied that s 110ZD of the GA Act provides a less restrictive alternative to decision making in relation to medical treatment for RK. Given the conflict in the family in relation to decisions of this kind, and the ongoing and frequent communication between AW and LK, and RK's care providers and health professionals, it is in RK's best interests that there be complete clarity as to who has authority to make treatment decisions. A guardian should be given authority to make treatment decisions for RK.
Furthermore, the prospect of conflict in relation to decisions as to the services to which RK should have access, and where he should live, necessitate clarity in relation to authority for those decisions also. Given the complexity of the aged care system, we do not consider that any less restrictive alternative would suffice, apart from the conferral of authority for these decisions on a guardian. A guardian should be given authority to make decisions as to the services to which RK has access, and as to his accommodation.
CM argued that the contact function currently conferred on the Public Advocate is no longer needed. Both CM and TK say that the arrangement which was previously in place - for family members to make bookings at reception at the Facility to reserve time with RK - was adequate and met RK's needs. They asserted that the contact schedule drawn up by the Public Advocate's delegate is inflexible, and that while AW and LK were not always able to use their allocated times, those times were not able to be made available to others, with the result that RK has no visitors during those times. TK stated that the operation of these contact arrangements had been adverse to her ability to spend time with her father, due to her own health considerations. In addition, CM asserted that the current contact arrangements impact on her ability to respond quickly to any deteriorations in RK's condition, which can occur without warning.
LK and AW indicated that the Public Advocate's contact schedule had ensured they see their father, and they see that contact as important to his best interests. It is in the interests of RK that he maintains contact with all his family members.
There was no evidence from any staff member at the Facility as to the workability of the booking arrangement, as a less restrictive alternative to the conferral of authority on a guardian to make decisions about contact with RK. However, the ongoing conflict within the family does not tend to support the contention that contact could be managed informally by them. There was evidence that open conflict between RK's family members had caused distress to him in the past. In Dr CI's letter of 14 February 2020 he noted:
Family conflict has been openly displayed on the ward and at one stage staff were advised to call a code black if the situation escalated. RK becomes distressed, verbally abusive towards staff and difficult to manage each time family members visit.[43]
[43] HB page 86.
The inability of RK's family members to regulate their animosity in front of RK, so as to spare him distress, was also evident at the first Tribunal hearing in relation to RK in March 2020. In the course of that hearing, security had to be called to an altercation when the matter had been briefly stood down.
If contact is not properly regulated, the risk of conflict erupting at the Facility, with the potential adverse impact that this may have on RK, as well as on other residents, and on the staff of the Facility, is too great. The authority to make decisions about contact must be conferred on a guardian.

Who should be appointed RK's guardian?

In the Investigator's Report, the Investigator reported that it had not been possible for him or the delegated guardian to ascertain any current views from RK regarding the Guardianship orders. The Investigator reported that in his communication, RK used words that did not seem contextually relevant to the questions asked, and were often not in a recognisable sentence structure.
The Investigator submitted that having reviewed all of the available evidence, it was clear that RK's views and wishes had vacillated over time.
We note, however, that at least in relation to his financial affairs, RK was prepared to execute a power of attorney in 2009 (POA) and the EPA in 2018. That he did so reflected RK's trust in CM in the past.
In light of the unresolvable conflict between CM, AW and LK, the Investigator recommended the appointment of the Public Advocate as guardian for RK.
However, the GA Act provides that the Tribunal is not to appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.[44]
[44] GA Act s 44(5).
The criteria for a guardian are set out in s 44 of the GA Act.
We are satisfied that CM is RK's wife, and is in a continuing close relationship with him, for the same reasons as were outlined in RK.[45] In the intervening time since that decision, CM has continued to see RK frequently, to assist in feeding him meals, to liaise with the Facility and external health professionals, and to advocate for RK within the health system, including during his severe illness and hospitalisation at Sir Charles Gairdner Hospital in June 2021.
[45] See RK [2020] WASAT 53, [41].
As we have explained, the allegations of abuse, neglect, and coercive control made against CM by AW and LK are not supported by any evidence before the Tribunal. On the contrary, the Investigator's Report reveals that RK's general practitioner, his private physiotherapist and the staff of the Facility believe that CM is making appropriate and reasonable decisions for RK as his guardian. As we have explained, there is no evidence to suggest that CM is not acting in accordance with her opinion as to RK's best interests, as she is required to do by s 51 of the GA Act.
We are satisfied that CM has the requisite knowledge to be a guardian, and is able to perform the functions of guardian. As CM is RK's attorney under his EPA, no question of compatibility arises in respect of the management of RK's financial affairs.
We are satisfied that CM will act in the best interests of RK, that she is not in a position where her interests will conflict with his interests, and we are satisfied that she is otherwise suitable to act as his guardian.
We do not consider that the family conflict means that CM is unsuitable to be appointed RK's guardian, in so far as the functions of making decisions as to RK's treatment and the services to which he should have access, and as to his accommodation. However, we consider that given the family animosity, CM is not suitable to make decisions in relation to RK's contact with others.
AW and LK both proposed that they be appointed - either individually or jointly - as RK's guardian(s), and alternatively, that the Public Advocate be appointed. Given their difficulties in communicating with CM, we find that they are unsuitable to act as guardians in relation to decisions concerning contact. Leaving contact to one side, we find that there would be a considerable risk of conflict between AW and LK, as guardians, and CM as RK's attorney, under the EPA. That would produce an unworkable outcome. Those responsible for making personal and financial decisions in relation to a represented person must be able to communicate, and work collaboratively, when the circumstances require.
CM is willing and we find her suitable to be appointed limited guardian for medical treatment, accommodation and services decisions.
No family member is suitable to manage the contact RK has with others. It will be necessary to appoint the Public Advocate as a limited guardian with the function of making decisions about RK's contact with others.
Given that RK suffers from a progressive condition, he will continue to require a guardian for the rest of his life. That being the case, we consider that the Guardianship order should be reviewed within five years from today.

GAA 3585/2022 Application for the appointment of an administrator of RK's estate;

GAA 3581/2022 Application under s 109(1)(c) of the GA Act for the revocation of the EPA

GAA 3585/2022 is an application under s 40 of the GA Act for the appointment of an administrator of RK's estate. The application for the appointment of an administrator has effectively been made in conjunction with the application by AW for the revocation of the EPA under s 109(1)(c) of the GA Act. It is convenient to deal with these applications together.
AW seeks that the EPA be revoked and that the Public Trustee be appointed the administrator of RK's estate, and in lieu thereof, that she and LK be jointly appointed as RK's administrators.
The criteria which must be met before the Tribunal may appoint an administrator are set out in s 64 of the GA Act. We deal with each of those in turn.
The Tribunal must be satisfied that RK is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate.[46]
[46] GA Act s 64(1)(a).
For the reasons set out at [24] to [31] we find that RK has a mental disability, namely, dementia syndrome, and that by reason of that mental disability, RK is unable to make reasonable judgments in respect of any or all of his estate.
We turn, next, to the question whether RK is in need of an administrator of his estate. Clearly, RK is unable to make financial decisions himself, and needs someone with authority to be able to make those decisions for him. However, as we have noted, RK made the EPA in 2018 and his attorney, CM, has the authority under the EPA to make decisions in respect of RK's estate.
It is well recognised that if a proposed represented person has made the choice to make an enduring power of attorney, thereby conferring authority on an attorney to make decisions on their behalf when they lack capacity to do so for themselves, that choice constitutes a means of addressing the person's decision-making needs which is less restrictive of their freedom of decision and action than a decision by the Tribunal to appoint an administrator. In addition to the EPA being less restrictive than an order of the Tribunal, we are satisfied that the EPA reflects a choice made by RK which can be gathered from his previous actions which we are required to ascertain pursuant to the principles in s 4(7) of the GA Act.

Whether the EPA should be revoked

We understand AW contends that the EPA should be revoked for the following reasons:
(a)the EPA was not validly made, in that RK did not have the capacity to make the EPA at the time it was executed, or because he was coerced by CM into making the EPA and appointing her the donee of power under the EPA;
(b)as the donee of power under the EPA, CM is not making decisions in RK's best interests.
We reject AW's contention that the EPA should be revoked because it was not validly made. The Tribunal does not have power to make a declaration as to the validity of an EPA. In any event, there is no evidence before the Tribunal which is capable of supporting the conclusion that RK did not have the capacity to understand the nature of the EPA, or the consequences of executing it, when he did so. The bases for AW's contention that the EPA was not validly made were no more than vague assertions that at the time of the EPA's execution, RK was delirious or confused. The EPA was executed prior to any finding by the Tribunal that RK lacked capacity. There was no medical evidence on which the Tribunal could conclude that RK lacked the capacity to understand the nature of the EPA or its consequences when he executed it.
Furthermore, the surrounding evidence tends to support the conclusion that RK understood the nature of the EPA and its consequences when he executed it. In 2009, RK had appointed CM his attorney under the POA. RK's execution of the EPA, and his appointment of CM as his attorney under the EPA, represented a continuation of RK's previously manifested wishes that CM should have authority to make financial decisions on his behalf when he lacked the capacity to do so himself. Furthermore, as the Tribunal has previously found,[47] the execution of the POA and the EPA formalised RK's long standing practice of reliance on CM in financial and business matters.
[47] RK [2021] WASAT 13.
Apart from AW's vague assertions, there was no evidence capable of supporting a finding that RK was coerced into executing the EPA. We note that at no time after its execution did RK seek to revoke the EPA. That fact, together with the evidence of the surrounding circumstances to which we have referred, militates against any finding that RK was coerced into executing the EPA.
We turn, next, to the allegations by AW and LK that, in the exercise of her authority as the donee of power under the EPA, CM is not making decisions in RK's best interests. Various iterations of these arguments have been raised by AW and LK, unsuccessfully, in previous hearings.
In her application for the appointment of an administrator, AW contended that RK has the 'bare basics' - in terms of material goods and possessions - but little else. She contends that he does not have the appropriate aids to make his life comfortable in light of his medical conditions (for example, a supportive armchair designed for his personal needs, and a wheelchair to replace the current one, which is very heavy) nor does he have many clothes, and he has no luxuries. In short, AW alleges that CM is economising on RK's care to preserve joint assets.[48] AW says that RK has lost most of his belongings and cannot access them because access to his home is denied by CM. It was also alleged that RK needed items such as a hat and a rain poncho but CM had not purchased them. AW also complains that RK no longer gives gifts to AW and LK, as he did in previous years, because CM does not make funds available. AW and RK also alleged that RK has run out of spending money because CM has not replenished the supply of funds she leaves in his wallet for use by family members who take RK on outings.
[48] HB pages 227-228 (AW submissions of 24 November 2022).
Finally, AW and LK referred to proceedings in the Magistrates Court where RK is being pursued for the recovery of legal fees incurred by him in relation to a hearing in March 2020 (at which RK was found to lack capacity to make decisions). LK asserted that judgment has been awarded against CM as a result of her failure to attend to that matter.
The donee under an EPA is obliged to exercise the powers of an attorney with reasonable diligence to protect the interests of the donor.[49] The evidence does not support a finding that CM has failed to do so.
[49] GA Act s 107(1)(a).
There was no evidence to support the conclusion that CM has economized on the cost of RK's care so as to preserve joint assets (to her own advantage). On the contrary, the evidence is that CM has made choices in relation to the expenditure on RK's accommodation at the Facility which have prioritised beneficial staff-patient ratios over the cost of that care. CM has also allocated funds towards meeting the cost of a regular in-house occupational therapist and physiotherapy, as well as engaging an additional external private physiotherapist. As we have noted, CM purchased RK's wheelchair on the advice of professionals.
CM's evidence, which we accept, was that the volume of RK's possessions which he can have with him at his room at the Facility is limited by the size of the room (which itself is relatively spacious).
CM's evidence, which we accept, was that she puts funds (usually in amounts of $70 - $100) into RK's wallet for use by AW and LK when they take him on outings. CM accepted that in the past, when she had been away for a few days, those supplies may have dwindled, but that she ordinarily replenishes them regularly. The Investigator's Report included an interview with a staff member at the Facility, with whom the same allegations were raised. That staff member did not support the allegation that RK was left short of money in his wallet. We consider that the funds CM provides for discretionary spending for RK are likely to be sufficient to enable RK to access the community for coffee, to pay for a meal and to pay for a subsidised wheelchair taxi when he goes on outings with family members.

As for the allegation that CM had not purchased clothing such as a hat and rain poncho, in the Investigator's report, LK is reported to have acknowledged that he did not ask CM to provide the poncho.[50] Furthermore, CM's evidence, which we accept, was that she only became aware of RK's need for a new hat after reviewing the written submissions filed by AW and LK. Immediately on becoming aware that RK needed another hat, she labelled one of his other hats which she had at home, and took it into the Facility to replace the hat which could not be located.
[50] HB page 170 (OPA Investigator Report 5 December 2022).
In respect of the alleged failure by CM to purchase an appropriate armchair and wheelchair, the Investigator's Report notes that the physiotherapist's assessment did not support the conclusion that CM had neglected these matters.
In so far as gifts are concerned, as the donee of power under the EPA, CM has no authority to give gifts.
These allegations by AW and LK primarily concern the merits of day to day expenditure. As the Investigator acknowledged,[51] expenditure of this kind involves, essentially, matters of subjective judgment by an attorney. Minds may differ about those matters, but that is not indicative of any failure by the attorney to act with reasonable diligence to protect the interest of the donor.
[51] HB page 172 (OPA Investigator Report dated 5 December 2022).
Finally, in relation to the Magistrates Court proceedings, CM's evidence, which we accept, was that she is defending those proceedings, on the basis that at the time RK instructed his lawyer, there was medical evidence which stated that he did not have the capacity to commence, conduct or settle legal proceedings of either a personal or financial nature. CM explained that she does not think it is in RK's best interests that he should have to pay for the legal fees in those circumstances. She also explained that default judgment had been entered against RK, in circumstances where she had not received notice of a hearing in the Magistrates Court, and she had applied to have the default judgment set aside on that basis. In light of CM's explanation, which we accept, this allegation does not constitute evidence of any failure by CM to act with reasonable diligence to protect RK's estate.
We are therefore not persuaded that there is any proper basis on which the EPA should be revoked.
The execution of the EPA reflected RK's choice in relation to the management of his affairs in the event of incapacity. The EPA clearly constitutes a less restrictive means to meet his need for the management of his estate, as compared with the appointment of an administrator. In view of the existence of the EPA, we find that there is no need for the appointment of an administrator of RK's estate.
Furthermore, the appointment of a third party, such as the Public Trustee, as RK's administrator, would not be in RK's best interests. As the Tribunal has previously found,[52] RK has an extensive estate, which includes interests in a business, in real estate, a self-managed superannuation fund and another superannuation fund. He owns the business and property jointly with CM. He has income from the business, from a superannuation fund and has cash both in Australian and overseas bank accounts. The appointment of the Public Trustee to manage RK's estate would give rise to real practical difficulties, given his joint ownership, with CM, of property and a business, and his selfmanaged superannuation fund. As was noted in the Investigator's Report, the management of RK's complex estate by the Public Trustee would also undoubtedly involve significant fees and charges. At present, the management of RK's estate, by CM as his attorney, is undertaken without any cost to him. In circumstances where we are not satisfied that RK needs an administrator to be appointed, a decision to do so, with the cost and practical difficulty that that would entail, cannot be regarded as in RK's best interests.
[52] RK [2021] WASAT 13, [49].
We will therefore dismiss the application under s 109(1)(c) to revoke the EPA and will dismiss the application for the appointment of an administrator for RK's estate.

The applications under s 109 (1)(a) and (b) - filing of records by the attorney and audit of those records

The remaining applications were for an order requiring CM, as the donee of the EPA, to file with the Tribunal and serve on AW a copy of all records and accounts kept by CM of the dealing and transactions she has made in connection with that power, and for an order for the audit of those records by an auditor appointed by the Tribunal.
In EW[53] the Tribunal held:
An enduring power of attorney is an essentially private agreement between the donor and donee, and the transactions undertaken pursuant to that agreement should not be scrutinised unless there is reason to do so.
That said, the threshold for making an order under s 109 of the GA Act should not be set so high as to compromise the general supervisory role given to the Tribunal in the conduct of attorneys. This is particularly so as attorneys are required to keep and preserve accurate records and accounts of the dealings and transactions made by them (s 107(1)(b) of the GA Act).
[53] EW [2010] WASAT 91.
In EW, the Tribunal determined that it should make an order under s 109 (1)(a) on the basis that it had been shown that there was 'something which requires an inquiry'.[54] In other words, it had been demonstrated that there was a sufficient basis for making an order for the production of records and accounts, and an audit of those records and accounts.
[54] EW [2010] WASAT 91 [111].
An order under s 109 may only be sought by a person who has a 'proper interest' in the matter. For present purposes, we are prepared to assume, without deciding, that AW may be a person who has a 'proper interest' in the matter. However, having considered the various allegations and such evidence as has been provided by AW and LK, we are not satisfied there is sufficient substance to those allegations as to constitute a reason for inquiry into the performance by CM of her role as attorney, which would be facilitated by an order for the filing of accounts and an audit of those accounts.
The applications under s 109(1)(a) and (b) will therefore be dismissed.

Orders

The Tribunal will make the following orders:
1.The Tribunal declares that the represented person, RK is:
(a)incapable of looking after his own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to his person;
(c)in need of oversight, care or control in the interests of his own health and safety; and
(d)is in need of a guardian.
2.Pursuant to s 87 of the Guardianship and Administration Act 1990 (WA) (GA Act) AW has leave to apply for the review of the Guardianship order made on 24 August 2021, pursuant to s 86 of the GA Act.
3.The Guardianship order made on 24 August 2021 is revoked and substituted with an order in the terms below.
4.CM is appointed the limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, either temporarily or permanently;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the GA Act; and
(d)to determine the services to which the represented person should have access.
5.The Public Advocate is appointed the limited guardian of the represented person with the following function:
(a)to determine what contact, if any, the represented person should have with others, and the extent of that contact.
6.The Tribunal approves delegation by the Public Advocate of her function as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
7.The guardianship order is to be reviewed by 21 December 2027.
8.The applications in GAA 3585/2022, in GAA 4534/2022, in GAA 4535/2022 and in GAA 3581/2022 are dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EN
Associate to the Honourable Justice Pritchard
21 DECEMBER 2022