| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : SG & ANOR and GLG [2011] WASAT 178 MEMBER : MR J MANSVELD (MEMBER) HEARD : 23 SEPTEMBER 2011 DELIVERED : 25 OCTOBER 2011 FILE NO/S : GAA 2450 of 2011 BETWEEN : SG RG
Applicants
AND
GLG
Represented person
Catchwords: Guardianship and administration Administration Capacity Legal capacity Testamentary capacity Reasonable judgments in respect to matters relating to estate Enduring power of attorney Need of an administrator Conflict of interest Best interests Legislation: Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(a), s 4(2)(b), s 4(2)(c), s 64(1)(a), s 68, s 84, s 106, s 106(1), s 106(1)(b), s 108(1a)(a)
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4)
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Result: The Public Trustee is appointed administrator Category: B
Representation: Counsel:
Applicants : M Fifield
Represented person : T Pepper
Solicitors:
Applicants : Avon Legal
Represented person : Civic Legal
Case(s) referred to in decision(s):
Flemming v Gibson (2001) 34 MVR 40
FS [2007] WASAT 202
XYZ v State Trustees Ltd [2006] VSC 444
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Applications under the Guardianship and Administration Act 1990 (WA) were made for a 78yearold woman who had been diagnosed with dementia. The applications had been made by the woman's two sons who were in conflict. The first was an application for a declaration to be made that the woman did not have legal capacity and that a 2005 enduring power of attorney should be brought into force. The second application was for an administrator to be appointed for the woman's estate. 2 The 2005 enduring power of attorney had been made in favour of a son and daughter to act jointly. The woman had made another enduring power of attorney in June 2011 in favour of the other son solely. 3 There was some dispute about the woman's capacity, and much evidence was led and submissions made dealing with that matter in the context of the woman's progressive dementia and her shortterm memory problems. 4 The Tribunal decided that the woman was no longer able to make reasonable judgments about her estate. 5 The conflict between a son and a daughter on the one side and a son on the other side was significant and meant that communication between the siblings did not occur. 6 It was accepted that the daughter had assisted the woman over some years in her daytoday budgeting. However, the Tribunal found that the daughter had a conflict of interest as a consequence of the woman allowing her property to be mortgaged as security for a loan to the daughter's family in 2006. 7 The Tribunal decided that, because of the intense conflict between the woman's children, it could not be satisfied that the financial decisions that needed to be made for her, if made by her children, would not be infected by the conflict between them. 8 The Tribunal decided to appoint the Public Trustee as administrator of the woman's estate and to revoke the Enduring Powers of Attorney she had made in 2005 and 2011. (Page 4)
9 The hearing of the applications was held on 23 September 2011. The decision was reserved and delivered orally on 25 October 2011. The reasons are reproduced below with minor edits and with the names of the parties anonymised for the purposes of the confidentiality provisions of the Guardianship and Administration Act 1990 (WA).
Background 10 These proceedings relate to the needs of GLG, a 78yearold woman. The proceedings initially arose when one of her sons, SG, made an application to the Tribunal under s 106(1) of the Guardianship and Administration Act 1990 (GA Act). This application seeks a declaration from the Tribunal that GLG does not have legal capacity, thereby bringing into force an enduring power of attorney (EPA) executed by GLG on 3 February 2005 in favour of SG and GLG's daughter, DF, as joint attorneys. 11 Subsequent to the application under s 106 of the GA Act, another son of GLG, RG, made an application for an administrator to be appointed for her estate. 12 On the same day as the application under s 106 of the GA Act was filed with the Tribunal on 1 June 2011, GLG purportedly executed another EPA, this one in favour of her son, RG, as sole attorney. 13 I heard both applications on 23 September 2011 and reserved my decision until today.
Relevant legislation 14 The GA Act is the relevant legislation in dealing with the applications before me. This Act is commonly described as protective legislation in that its aim is to protect the affairs of vulnerable people; those people whose faculties are impaired. The makers of the GA Act were also mindful of a person's right to make their own decisions and that that right should only be removed when there is a demonstrated need to do so. 15 This tension between the autonomy of a person and the possible need to protect the person at a certain point in their life works its way through the GA Act by requiring the Tribunal to observe a set of principles in the making of its determinations. These are set out in s 4 of the GA Act. 16 The GA Act requires the Tribunal to proceed through a number of steps, incorporating the principles, in coming to a decision about whether (Page 5)
to appoint an administrator and whether to make a declaration under s 106 of the GA Act. Simply put, the steps are these: • A finding must be made on the capacity of GLG. The starting point is that she is presumed to be capable of managing her own affairs and making reasonable judgments in respect of matters relating to her estate (s 4(2)(b) of the GA Act). • I must be satisfied there is a need for an administrator to be appointed. The GA Act states that orders should not be made if GLG's needs can be met by other means less restrictive of her freedom of decision and action (s 4(2)(c) of the GA Act). • If an administration order is to be made, I must decide what should be the scope of the order, which is whether a plenary or limited order best meets GLG's needs. • If an administration order is made then I must decide who the administrator is to be. Section 68 of the GA Act provides guidance in the answer to that question. I must be satisfied that the proposed administrator will act in GLG's best interests and is otherwise suitable to act as administrator. Suitability takes into account the compatibility of the proposed administrator with GLG; her wishes and whether the proposed administrator will be able to perform the role that he or she is given. 17 The Public Trustee consents to his appointment as administrator and is able to be appointed should I find that there is no person suitable or willing to fulfil that role. 18 When going through all the steps just mentioned, I must as far as possible seek to ascertain the views and wishes of GLG (s 4(2)(c) of the GA Act). 19 My primary concern is the best interests of GLG (s 4(2)(a) of the GA Act.
The question of GLG's capacity 20 The first step in the determination of whether an administrator should be appointed is to decide the question of whether GLG is unable by reason (Page 6)
of a mental disability to make reasonable judgments in respect of matters relating to all or any part of her estate (s 64(1)(a) of the GA Act). 21 As already stated, GLG is presumed to be capable of making reasonable judgments until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b) of the GA Act). 22 There needs to be a causal link between the mental disability and an inability to make reasonable judgments. 23 The making of reasonable judgments is the outcome of a cognitive process that involves knowledge, understanding and evaluation. 24 The ability to make reasonable judgments is to be assessed in relation to the actual estate of the person. 25 The authority for these propositions is FS[2007] WASAT 202 at [99] [110] citing XYZ v State Trustees Ltd [2006] VSC 444 at [36] [46]; XYZ (Guardianship) [2007] VCAT 1196 at [52] [59] and the Queensland Court of Appeal decision in Flemming v Gibson(2001) 34 MVR 40 at [15]. 26 I will now turn to the medical reports. 27 Some of the reports before the Tribunal speak to GLG's testamentary capacity at a point in time. The test for testamentary capacity is not the same as the test for the appointment of an administrator of her estate. An opinion on whether a person has or does not have testamentary capacity clearly has some impact on the question of capacity before me, but is not determinative of it, because the test is not the same. 28 There are a number of reports before the Tribunal. The reports are from specialist medical practitioners and there are statements made by GLG's longstanding general practitioner. 29 The reports in chronological order are as follows:
Dr CB, geriatrician, dated 16 December 2010 30 This report is a letter to Dr S, the general practitioner. It appears as if GLG was attending the memory clinic at a public hospital upon the referral of her general practitioner. Dr CB states that GLG has 'probable mixed dementia'. He talks about a care package being in place; a care package is a package in which forms of care are provided for the person in the home, and for GLG this included care in respect to medication (Page 7)
prompts, some personal care and meal preparation. In his report, Dr CB makes a statement that GLG is financially vulnerable and this no doubt was reported to him withdraws large amounts of cash from the bank.
Dr CB, geriatrician, dated 11 March 2011 31 This report is to Dr S, the general practitioner, it would appear, based upon an attendance by GLG at the memory clinic. In this report, Dr CB says that GLG has declined the continuation of the care package, but that the concern about her financial vulnerability has lessened substantially because her daughter, DF, is supervising her finances.
Dr RA, physician in aged care, dated 17 May 2011 32 This report is to Dr S. Dr RA says that the main reason GLG came to see him was for an assessment of her testamentary capacity. He mentions that she is still under a community aged care package, but there is some resistance to medication prompts. Upon assessment, Dr RA concludes that GLG suffers from what he calls 'a moderate dementia'; it is his view that GLG no longer has testamentary capacity; and he states that, in his view, she 'could not possibly understand a legal document and accurately describe its contents'. Dr RA mentions that GLG was 'completely unaware' that she had recently attempted to change her will with her son, RG (I note that GLG first attended the Public Trustee to prepare a will on 18 April 2011), and that she was unable to give an accurate estimation of the value of her assets or clearly elucidate what was in her previous will.
Dr CB, geriatrician, dated 8 June 2011 33 This report is in the form of a doctor's guide which is a document that the Tribunal sends out to medical practitioners. Dr CB confirms his earlier diagnosis of 'probable mixed dementia' (Alzheimers/Vascular). When asked the question 'Is GLG capable of making decisions in respect to her personal health care, her living situation and her financial affairs?' Dr CB's opinion is that she cannot. He also states that GLG is, in his view, incapable of executing an EPA. He makes note of the assessment of Dr RA dated 17 May 2011, and he makes the comment that GLG is 'reliant on assistance to optimise her safety at home'. (Page 8)
Dr S, GLG's general practitioner of 30 years, dated 21 April 2011 and 9 June 2011 34 These are, in effect, two 'To whom it may concern' statements. In these statements, Dr S takes the view that GLG has testamentary capacity, that she is capable of giving advice regarding her will, and would have a clear general understanding of her assets and of the expected outcomes of her wishes towards her immediate family.
Dr RA, physician in aged care, dated 15 July 2011 35 The final report is a doctor's guide from Dr RA who assessed GLG in May 2011. He prepared the doctor's guide, not having seen GLG since May 2011 but nonetheless on the basis of her attendance with him (and with Dr CB), and he makes the statement that in his view GLG suffers from 'mixed vascular Alzheimer's dementia'. He states the dementia is a progressive condition, and that the condition 'has been demonstrated at [the] clinic'. I infer that he is referring to GLG's attendances over a period of time at the clinic. He states that GLG takes her medication erratically, lacks insight and does not understand the deficits in her cognition or safety issues. He then makes a further statement that in his view GLG is easily led into decisions by family members and is vulnerable to financial abuse.
Evidence and submissions of the parties
DF 36 DF, daughter of GLG, says that in her view her mother can still manage living alone but only with assistance. She says that she does not like her mother cooking for herself in case she forgets that the stove is on; for example, if the telephone rings, the concern is that she will forget that she has something cooking on the stove. This is dealt with by DF taking food to her mother as often as is practicable and by GLG eating lots of tinned food. 37 DF says that GLG forgets if she has taken her medication; if she is provided with cash, she forgets where she has placed it in the home and if an account has been paid, she forgets and wants to pay the account again (RG accepts that this occurs). 38 DF states that she and her brother, SG, arranged for the care package to be put in place. She also arranged for the service provider's account to be sent to her because GLG would refuse to pay the account on the basis of 'why do I have to pay this bill when I can do things for myself?' (Page 9)
39 DF is of the view that her mother's memory problems have worsened since the time of Dr CB's report of 16 December 2010.
SG 40 SG, son and applicant for the application under s 106 of the GA Act, agrees with DF that '… in the last 12 months mum has gotten worse …'. He states that GLG now rarely goes out, and if she does, it is usually only to go to the corner store to pick up her milk and bread. DF will visit their mother during the week; he visits on a Saturday and RG visits when he can. GLG's appointments are therefore covered by the three children. SG states that if GLG receives ongoing assistance with her meals and medications and the children continue to visit, then he believes she can still live in her home. He says, however, that the time will come when this will no longer be possible.
RG 41 The other son, RG, is represented by counsel in these proceedings (counsel). The particular representation for RG is stated to be in respect of his capacity as attorney for GLG (the EPA executed by GLG on 1 June 2011). Counsel has previously taken instructions from GLG for the execution of that EPA and for a new will. GLG is herself legally represented in these proceedings. I will return to that unusual situation, later. 42 Counsel gave evidence from the bar table which I permitted pursuant to s 32(2) and s 32(4) of the State Administrative Tribunal Act 2004 (WA). She recounts her dealings with GLG in respect to her drawing up of the EPA of 1 June 2011 and also in respect to GLG's wish to make a new will. The period covered is from 1 June 2011 to the more recent time of an undated letter purportedly written by GLG (when living with SG) stating that she did not recall meeting counsel or asking her to be her lawyer. 43 It would appear that GLG was introduced to counsel by RG. 44 The relevant information is as follows: • Counsel submits that GLG was managing in her own home with assistance from the care provider and her children until very recently when '… she was removed from her home to live with her son, SG'. Counsel states that GLG was coping safely '… despite the fact that there was some decline in her memory'. (Page 10)
• Counsel refers to GLG's attendance at the Office of the Public Trustee on 18 April 2011 (and at her home on 26 May 2011) for the preparation of a will and the question that arose of how to treat the mortgage on GLG's property (a letter dated 27 May 2011 from the Public Trustee to GLG is before the Tribunal and will be further referred to later in these reasons). Counsel states that GLG was not aware at that time that she did not have a clear title to her property. • Counsel states that GLG's instructions were that she had not had a lot of dealings with estate matters whilst her husband was alive. Since her husband's death, her children had assisted her and, in the case of the new will, her son RG had contacted the Public Trustee and counsel because she was unable to make those enquiries herself. The EPA of 1 June 2011 had been executed because RG did not have the relevant authority to make enquiries on his mother's behalf. Counsel states that she was contacted by RG to assist GLG complete her new will. It was in the context of the new will that the opinion letter of 9 June 2011 from the general practitioner, Dr S, was obtained. • Counsel states that she found GLG to have 'some slight shortterm memory issues' but she was not concerned about her testamentary capacity. At her last meeting with GLG (on 21 June 2011), counsel states that she had '… no concerns whatsoever as to [GLG]'s capacity in informing me about her personal life'. 45 Counsel was taken to the undated letter earlier referred to, purportedly composed by GLG, stating that she does not remember meeting her or giving her instructions. Counsel states that the letter came from the time GLG had been living with SG; she assumes GLG did not type the letter and states '… [GLG]'s quite vulnerable to pressure from the family, and she is a person who wants to do the right thing by the family'. 46 Counsel was then taken to her letter to the Tribunal dated 5 September 2011. Relevantly, the letter states that she was initially instructed to appear for GLG in these proceedings; that after those initial instructions, GLG was removed from her home by SG; that it had come to light that GLG had paid several cheques to SG '… of some significant (Page 11)
amounts'; that GLG may be at risk of 'financial exposure' and that the undated letter '… now raises some questions as to [GLG]'s condition if it is as she states that she does not recall meeting me or instructing me'. Counsel responded that, that this may have something to do with GLG's shortterm memory or the fact that she only met GLG on two occasions and that, on the morning of the hearing, GLG '… had a certain amount of recognition of me this morning'. 47 The submission of counsel as the legal representative of RG is that there is an acceptance that GLG has some short-term memory problems (RG agrees the short-term memory problems are progressing) but that her financial vulnerability (also accepted) is mostly due to her lack of sophistication and the fact that she has left the management of her financial affairs to family members (her husband whilst he was alive and after that, her children). The submission then is that the evidence does not support the making of an administration order that the presumption of capacity has not been displaced. 48 During the hearing, counsel raised a matter on behalf of RG that has some relevance to the question of capacity (and need). She says that RG sought to greet his mother in the brief period the hearing was stood down because GLG had become distressed, but was apparently prevented from doing so by other family members. In response to that situation, counsel says (at T:25, 23.9.11): … I would say that's definitely an indication of some sort of undue influence over [GLG] at the moment that she can't be making decisions for herself. Whether there's a question of capacity but regardless of that, obviously there's an emotional attachment to her children equally and she did express initially wanting to talk to [RG] and then was prevented from doing so.
MD 49 MD, a friend of the family for 41 years, states that she has noticed that GLG cannot remember things such as a person's birthday that she would have previously known. She is of the view that whilst GLG can look after herself in her home, she cannot look after her financial affairs and needs someone to oversee that part of her life.
GLG 50 GLG gave evidence with only her legal representative and counsel present. (Page 12)
51 In her evidence, GLG expresses a significant concern and distress about the conflict that exists in the family. She says herself that she wants to please all of her children. 52 GLG does not remember executing the EPAs in 2005 and more recently in 2011. She does not remember the authority she has given to DF and SG under the 2005 EPA or the authority she has given to RG in June 2011. 53 When asked what she understands about an EPA, GLG states: 'To be truthful with you, I really don't know what it's all about. … I don't. What's an enduring power of attorney?' (T:33, 23.9.11). 54 When asked who she would like to manage her finances, she says that she would prefer DF, her daughter. She explains her choice by saying that DF is the person who has assisted her with her daytoday finances in the past and continues to do so presently. GLG says that she has given DF 'permission' to withdraw money from her bank account. 55 GLG states that she is concerned that if she said that SG should manage her finances, that would upset RG and if RG assumes the role then SG would be upset. It is clear that GLG feels conflicted, wanting to please her children. 56 GLG says that RG used to visit her daily on his way home from his work. She mentions RG becoming upset at one time when he noticed that a cheque for $900 had been made out to SG for his son to go on a school trip. She says that SG had asked for the money on the basis that 'we will give it back' and she was happy to oblige. 57 GLG says that RG took her chequebook. She asked for it back. He refused, but a day or so later it was returned. She says that RG stopped her from being able to withdraw money from her ANZ bank account and so she transferred her account to Bankwest. GLG says that she did not talk to RG (or SG) about her finances. She paid her bills with the help of DF. 58 When the undated letter purportedly composed by her to counsel's law firm was put to her, she was vague about its contents. She initially says she remembers writing it (but later in her evidence states 'Did I send … that letter … see I can't even remember'. She says that she cannot recall meeting counsel '… because if I did, then I would have mentioned something about it in the letter'. In reference to that part of the letter where she states she does not want anything to do with RG, she says (Page 13)
she does not recall who told her that he wanted to talk to her but remembers that she was angry at him in respect to him taking the chequebook. She does not give any other reason why she would not want to see RG. When it was put to her that if RG wanted to see her, would she accept that, she said yes, she would, but she is aware that, because of the conflict in the family, it will be difficult, because her other children might have views about RG seeing her. 59 GLG clearly has a view that once the conflict over the management of her financial affairs is settled, she wants and expects to return home. It appears that is how she believes she will begin to see RG again. 60 GLG has only little awareness of the mortgage on her property; she is able to say that a loan was sought by DF some years ago. She does not remember the original mortgage amount or what amount is still owing, and she is not able to say what might happen in the event that the loan supported by the mortgage goes into default. She is not able to say what effect that would have on her property. She says that DF is repaying the loan. 61 When questioned by counsel about her will, GLG says she thinks she remembers coming to her office: 'RG took me'. She says she remembers seeing a 'lady in the city' (Public Trustee), and again that RG took her. GLG then states 'But what it was all about, I wouldn't have a clue'.
Legislation 62 I will now turn to the provisions of s 64(1)(a) of the GA Act. 63 I am satisfied that GLG has a 'mental disability' as defined in s 3 of the GA Act. She has been diagnosed with dementia by specialist practitioners at the public hospital. She has been assessed by those practitioners from at least December 2010 to May 2011. The diagnosis has remained consistent over that period. The dementia is said to be a progressive condition which means that the symptoms will worsen over time. 64 There is no evidence of a contrary diagnosis. The statements by Dr S, general practitioner, about GLG's testamentary capacity at particular points in time do not contradict the diagnosis of dementia. 65 The question which is in some dispute is whether by reason of her dementia, GLG is unable to make reasonable judgments in respect of matters relating to all or any part of her estate. (Page 14)
66 The evidence shows that the principal asset in GLG's estate is her property which has a mortgage of about $100,000 secured over it relating to a loan obtained by family members. GLG has a small amount of cash in her bank account. She is in receipt of a Centrelink pension and has the usual personal and property expenses. Further information filed by SG shows that GLG has recently been sent an account from counsel's law firm for $1,571.90. 67 One of the more pronounced effects of GLG's dementia is problems with her memory, particularly her shortterm memory. 68 An argument put by counsel on behalf of RG is that memory problems, of themselves, do not mean incapacity. That may be correct but does not take us very far. What is of concern to me is what effect those memory problems have on the particular circumstances in which GLG finds herself. 69 Those circumstances as they currently exist are quite clear. There is a rift in the family; in its most simple manifestation, there is a conflict between RG on the one hand and SG and DF on the other. There are no doubt other family members involved. 70 I accept the assessment of Dr RA when he says that GLG is easily led into decisions by family members. Counsel (on behalf of RG) agrees that GLG is 'quite vulnerable to family pressure'. 71 GLG is not capable of managing that conflict or pressure, as the evidence demonstrates. As a consequence of the dementia, her memory is fragmented. This has had the effect of her shifting her allegiances within her family with an inadequate memory of what has previously occurred and what she has previously decided. This has led to a situation where there are currently three authorities she has given; the 2005 EPA in favour of SG and DF jointly (subject to a s 106 declaration); the June 2011 EPA in favour of RG, and a third party signing authority on her Bankwest account in favour of DF. These differing authorities affect GLG's estate because, on the evidence, they have different views as to what is in her best interests. 72 We also have the unusual situation in these proceedings where GLG is legally represented in her own right and also purportedly legally represented through her agent, RG, by the EPA she executed on 1 June 2011. She is clearly incapable of mediating or taking charge of the conflicting instructions. (Page 15)
73 On a more prosaic or mundane level, I accept the evidence (which it seems is not in dispute) that GLG: 74 Another example is the view held by GLG about the payments made to SG for his son's school trip. Evidence was tendered that two payments were made to SG, one in April 2011 for $3000 and the other in June 2011 for $1,600. SG has assumed these payments are gifts. In her evidence, GLG refers only to a payment of $900 and says that SG said 'we will give it back'. 75 On her own evidence, GLG has limited knowledge and understanding of the mortgage security that is attached to her property. This is confirmed in the letter of the Public Trustee dated 27 May 2011 (before the Tribunal) which states that she was unable to give details of how she provided this assistance to DF or the amount of the assistance. GLG does not know what will happen to her property should the mortgagee default. 76 The evidence on GLG's capacity when taken as a whole, in my view, reflects not only a reported lack of sophistication and an historical reliance on others, but clearly demonstrates that she is unable to maintain a coherent system of thought because her memory is not intact. The dementia from which she suffers means that her memory will progressively fail and her confusion about things will increase commensurably. 77 I am therefore satisfied that GLG satisfies the provisions of s 64(1)(a) of the GA Act and is no longer able to make reasonable judgments about her estate. In making this finding, I am not required and nor do I make any findings about her testamentary capacity or her capacity to execute the EPA made on 1 June 2011. I will, however, return to that EPA later. (Page 16)
78 I make the same finding in respect to s 106(1)(b) of the GA Act as it relates to the application for a declaration of legal incapacity on the EPA executed on 3 February 2005.
How should the estate of GLG be protected and managed? 79 A number of alternatives have been proposed. In no particular order, they are: a) that the EPA executed by GLG on 3 February 2005 in favour of DF and SG jointly be the authority that operates; b) that both the application under s 106 of the GA Act and the application for an administration order be dismissed, meaning that the EPA in favour of RG from 1 June 2011, continues to operate; c) that an order for administration be made and that RG be appointed or DF be appointed; or d) as proposed by a grandson of GLG, if DF is not appointed then some other nominated family member other than RG. 80 In the alternative, RG proposes, at T:50, 23.9.11, that the Public Trustee be appointed because of the conflict. Both SG and DF say that GLG would not be happy with 'strangers telling her what to do'. 81 These proposed alternatives exemplify the rift in the family to which I have earlier referred. 82 The case against RG is put by SG and DF. They say that until recently RG has had no contact with GLG for six years. DF states: … And [RG] lived in Kununurra and never had contact with her. My father has been gone 18 years this year and [RG] has only just started showing an interest in our mother. (T:24, 23.9.11) 83 The evidence shows that it is DF who, over a long period of time, has assisted GLG with the daytoday management of her financial affairs. DF says that she was a bank signatory on her mother's ANZ bank account since 2005 or 2006 until RG stopped that authority. As already mentioned, a new bank account was opened with Bankwest and the signing authority reestablished. SG says that DF has always managed (Page 17)
GLG's daytoday finances. Over time, he has assisted his mother with funds, including $6,500 in 2005 to help her to pay her debts. 84 The case against SG and DF is put by RG. He says that he did not get involved with his mother's finances until recently because he believed it was being appropriately handled by DF and SG. It was while he was visiting GLG that she mentioned that DF and SG had been borrowing money from her over the years. He says that in looking at his mother's bank statements, he noticed large withdrawals. It was then that he discovered that money had been paid to SG for his son's school trip and that there was a mortgage on GLG's property about which she did not know much but which worried her (she is said to have referred to DF and the need for the mortgage but RG found out that the property for which the mortgage was secured is in the name of two daughters of DF and a son-in-law). 85 The simple argument put by counsel to RG is that an EPA is adequate to assist GLG at the present time and is the less restrictive alternative to the appointment of an administrator (thereby preserving as much of GLG's independence as possible). Counsel submits that if, at the time of executing the EPA on 1 June 2011 GLG understood the authority she was giving, that authority should stand (in this respect, GLG's legal representative says that his instructions were that she wanted to revoke the June 2011 EPA but that on the advice of Dr RA, she was considered incapable of doing so). 86 Counsel acknowledges that DF has been doing a 'fantastic job' but submits she is in a position of conflict because of the mortgage on GLG's property. Counsel says that RG has secure employment and is financially stable; if he were given the role of managing GLG's finances, he would make good judgments and 'there [would be] no risk of financial abuse …' (T:56, 23.9.11). 87 When I consider all the evidence, I cannot be confident that appointing a family member as the manager of GLG's estate is in her current best interests. 88 I accept that DF has been assisting her mother with her daytoday finances for many years and it appears that is what GLG remembers when she says this arrangement should continue. Unfortunately, GLG expresses this wish without apparently remembering or understanding that she recently made RG her attorney. In any case, I agree that DF is in a position of conflict by virtue of the mortgage which has been secured (Page 18)
over GLG's property to obtain funds for DF's children to purchase a property. Even if I accept that the mortgage will continue to be repaid (that apparently is the history so far), the fact is that as GLG's illness progresses, a decision will eventually need to be made about whether she can remain living in her home. When that happens, a further decision will need to be made about what to do with GLG's property. It is at that time (if not sooner) that the conflict of interest will crystallise, particularly if the property needs to be sold. 89 Despite what I have said about the particular conflict facing DF, the position of all of GLG's children (including RG and SG) is tainted by the conflict between them. Because of that conflict, which I am satisfied is of long standing and not just as a product of GLG's decline, GLG has had to endure her children jostling for positions of authority which has been extremely distressing for her. I note here: • the dispute over the payment for SG's son's school trip; • RG stopping DF's signing authority on GLG's bank account; • the EPA RG organised on 1 June 2011; • the opening of a new bank account and the reestablishment of DF's signing authority; • the issue of the new will; and • GLG moving in with SG with a consequence being that RG's contact with her has stopped because of the conflict between SG and RG. 90 All of this has involved GLG attending lawyers and banks and the Public Trustee (arranged by the children) at a time when she has become very vulnerable because of the emerging and progressive dementia. 91 Because of all this, I cannot be satisfied that the financial decisions that need to be made for GLG, if made by her children, would not be infected by the conflict between them.
Conclusion 92 It is for all the above reasons that I have decided that it is in GLG's current best interests that the Public Trustee, as an independent party, be appointed the plenary administrator of her estate and that the EPAs (Page 19)
that GLG has executed be revoked given that the operation of those instruments would be inconsistent with the functions I have given to the Public Trustee (s 108(1a)(a) of the GA Act). 93 I have decided that the order should be reviewed in five years (s 84 of the GA Act).
Orders 1. The Public Trustee of 565 Hay Street, Perth, Western Australia, is appointed the plenary administrator of the estate of [GLG] with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA). 2. The enduring power of attorney dated 3 February 2005 by which [GLG] appointed [SG] and [DF] to be her attorney is revoked. 3. The enduring power of attorney dated 1 June 2011 by which [GLG] appointed [RG] to be her attorney is revoked. 4. This order is to be reviewed by 25 October 2016. 5. The application made under s 106(1) of the Guardianship and Administration Act 1990 (WA) is dismissed. |