TE
[2024] WASAT 126
•22 NOVEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: TE [2024] WASAT 126
MEMBER: MS R BUNNEY, MEMBER
HEARD: 5 NOVEMBER 2024
DELIVERED : 22 NOVEMBER 2024
PUBLISHED : 22 NOVEMBER 2024
FILE NO/S: GAA 4527 of 2024
GAA 4735 of 2024
TE
Represented Person
CC
Applicant
DX
Third Party
Catchwords:
Guardianship - Administration - Family conflict - Spouse lives overseas - Minor child in Australia - Enduring power of attorney suspended - Appointment of Public Trustee as administrator - Appointment of Public Advocate as guardian - Short orders
Legislation:
Family Court Act 1997 (WA), s 205X, s 205Z
Guardianship and Administration Act 1990 (WA), s 40, s 43(1), s 64(1), s 51(2)(e), s 51(2)(g), s 64(1), s 109(1), s 109(1)(c), s 110ZD
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4)
Result:
Enduring power of attorney suspended
Public Trustee appointed as plenary administrator
Public Advocate appointed as limited guardian
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
| Applicant | : | Mr B |
| Third Party | : | Mr H |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | B Legal |
| Third Party | : | H Legal |
Case(s) referred to in decision(s):
BFO & ORS and KPW [2014] WASAT 68
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons for decision were delivered orally on 22 November 2024 and have been edited only to anonymise parties, add headings, correct grammatical errors and some infelicity of expression, without variation to the substance thereof.)
Introduction
TE is a 71-year-old man with a diagnosis of advanced dementia. He has a large family which was, until one year ago, harmonious. His partner of at least 16 years, CC, lives overseas in Country A with their 15-year-old son, SE. His former wife GN and the adult children they share, daughter DX and son MX, live close to TE in the south-west of Western Australia. TE signed an enduring power of attorney in September 2022 to appoint DX as his attorney (EPA).
When CC and SE visited Western Australia in August 2023, TE's Neighbour started involving himself in private family and financial matters. He enrolled SE at school and took TE to the bank to withdraw money without any discussion with DX. In 2024, the Neighbour paid for CC and SE to fly to Western Australia without notifying DX or MX. He took SE to Centrelink which caused the Department of Communities - Child Protection (DCP) to become involved. When CC returned to Country A on 10 November, she left SE in the Neighbour's care.
The matter was referred to the Office of the Public Advocate (Public Advocate) for investigation and was heard on 5 November 2024 (Hearing). I have decided to suspend the operation of the EPA and appoint the Public Trustee as TE's administrator. I have also decided to appoint the Public Advocate as TE's guardian, with both orders to be reviewed after one year. These are my reasons.
Factual background
TE was a qualified tradesman and ran a successful business in Town E in the far north of Western Australia. His estate is substantial and seems to be at odds with the simple way he likes to live. He has always lived in a caravan and 'feels sorry for people' that live in conventional houses. The only reason he built a house in Town E was to rent it out.[1]
[1] Witness statement of DX filed 3 November 2024, page 8, paragraph 14.
TE lives on 19 acres of bushland in the south-west of Western Australia (Property) in a caravan which serves as his bedroom. A nearby shed houses a kitchen, lounge room, fireplace and laundry with a washing machine. There is an ablution block with toilet and shower facilities attached to the shed. This is how TE has always preferred to live and the family want to keep him in his familiar environment for as long as possible.
He sold his business in 2006 and became a self-funded retiree at the age of 53. He met CC in Country A in 2007 and they started a relationship. SE was born in June 2009. From the start of their relationship until March 2020 when the Western Australian international border was closed due to the COVID-19 pandemic (Pandemic), TE lived between Country A and Western Australia, spending three months in each location. TE financially supported CC's household in Country A, which included her daughters from her marriage and her grandchildren.
CC first visited TE's home in Australia shortly after meeting him in around 2007. CC's second visit was in 2010 when SE was eight months old. The third visit was in 2011 when SE was aged two, which was when GN first met CC and SE. GN recalls that she immediately liked CC and they stayed up late into the night talking. During the Pandemic, GN and CC would message each other on social media to stay in touch. GN also sent CC money from time to time to help.
The Pandemic disrupted TE's relationship with CC and SE as he was unable to visit them for two years. When the border reopened on 3 March 2022, TE signed an enduring power of attorney that day to appoint DX as his attorney. He asked her to:[2]
…
aMake appointments with [the Accountant] for his tax matters;
b.Collect his mail and pay his bills while he was out of the country;
c.Ensure his tenants were paying rent for his two [Town E] properties;
d.Check his land rates payments and contact the shires;
e.Handle Western Union money transfers at the Post Office to [CC] when needed;
f.Manage his banking matters.
[2] Witness statement of DX dated 3 November 2024, paragraph 10.
The next day, 4 March 2022, TE left Australia to travel to Country A for six months to see finally CC and SE. When TE returned in September 2022, he was clearly unwell and caused a disturbance at the Airport, which involved the Australian Federal Police. DX has managed his financial and legal affairs ever since.
TE and CC's relationship
It is consistent with the way that TE lived his life that he made no formal arrangements for CC and SE to move to Australia, although TE and CC spoke about them moving when SE was in high school.[3] No plans were made in advance in relation to CC's residency, with SE already being an Australian citizen by descent. CC was caring for her grandchildren in Country A and they discussed how the grandchildren would be cared for by their parents when she came to Australia.[4] TE held no assets in Country A that CC could access although he provided regular financial support to her. This was how they agreed to conduct their relationship for over 16 years.
[3] ts 40, 5 November 2024.
[4] ts 39 - 40, 5 November 2024.
I expect that TE thought that he would always be able to live his life between a beautiful place like Country A and his Property. He did not plan for a future where Western Australia could be locked down for two years or for a major neurocognitive disorder to suddenly disable him. He did not really plan for much and neither did CC, who is still legally married to her daughters' father. She has not pressed for marriage to TE and likely does not understand the ramifications of not being legally married to TE in terms of her legal rights in Western Australia.[5]
[5] The possibility of an application to the Family Court was mentioned in the Hearing by numerous parties however regard should be had to sections 205X and 205Z of the Family Court Act 1997 (WA).
With the greatest of respect to CC, she is trusting and unsophisticated. When the Neighbour took TE and CC to the Bank in October 2023 (discussed in more detail below) CC said she did not understand why it was not appropriate to take TE to the Bank to withdraw money when his dementia was so advanced.[6] I accept her evidence that she understands now but she did not understand at the time.
[6] ts 38, 5 November 2024.
Further, when SE needed a new Australian passport in June 2023, TE signed the passport application and DX posted it to CC. However, CC did not feel that the signature was sufficient and wanted to avoid any issues with the Embassy. She obtained a copy of TE's passport that was held by their internet provider in Country A and replicated TE's signature from that copy to prepare a new passport application. CC did the same for the signature of the witness, DX's then-husband XY. CC describes the actions she took in text messages to DX.[7]
[7] Text messages attached to submissions filed by DX on 8 October 2024, pages 4, 10 and 11.
It does not appear that CC understood that it is very serious to 'alter' a document that certifies SE's Australian citizenship, and no one told her not to lodge the 'altered' passport application with the Australian Government. Although she is represented by a solicitor in these proceedings, I have concerns about whether CC fully understands the consequences in terms of her relationships with DX and MX, which is partly due to her background and partly due to the influence of the Neighbour in the lives of the parties.
The Neighbour met CC and SE for the first time shortly after their arrival and became involved in their lives soon thereafter. Complex dynamics exist between the Neighbour and DX and their families, the basis of which is unclear to the Tribunal, although DX's husband did work for the Neighbour for at least a year or so starting in 2021.
As I will set out below, I am satisfied that the involvement of the Neighbour sowed the seeds of mistrust and suspicion between DX, MX, and CC, to the point of a complete breakdown in their relationship by April 2024. The consequences to this formerly collaborative, loving family have been catastrophic.
The Neighbour was given notice of the Hearing but did not attend. Upon the request of Mr B, I permitted the Neighbour to file written submissions to set out his position and involvement in the matter. The animosity that the Neighbour expressed towards DX and MX was echoed by the Neighbour's father who attended the Hearing and interjected sporadically from the back of the hearing room. GN, DX and MX appeared with DX's solicitor Mr H. Also in attendance was the investigator from the Public Advocate (Investigator), CC and Mr B.
September 2023 - school enrolment
TE was not able to travel after he became unwell, so arrangements were made for CC and SE to come to Australia in 2023 for six months. DX organised the visa and flights for CC and SE. Consistent with the close relationship they share, GN collected CC and SE from the Airport on 17 August 2023 and drove them to the Property to see TE.[8]
[8] Witness statement of GN filed 9 October 2024, page 1.
DX made enquiries with the local High School to enrol SE and was told that SE's vaccination certificates would be required. DX asked CC and was waiting for her to provide them. DX took TE, CC and SE on a holiday to Town E on 29 August and arrived back in the southwest two weeks later on around 11 September.
Without speaking to DX, the Neighbour enrolled SE in High School on around 20 September and explained in his witness statement:[9]
I had to do this as [CC] and [SE] were being dictated to and completely controlled by [DX] as she had full control of [TE's] affairs.
[9] Witness statement of the Neighbour filed on 12 November 2024, paragraph 36.
The first DX knew about SE attending school was when she visited TE at the Property and SE came home wearing a school uniform.
October 2023 - withdrawing funds at the bank
On 11 October 2023, the Neighbour took TE and CC to the Bank to withdraw $2,000. At the same time, copies of account statements and balances of TE's accounts were obtained (Bank Documents). The Bank Documents were attached to the application that was filed with the Tribunal on 2 September 2024.
DX checked TE's online banking later that day and saw that $2,000 had been withdrawn, her bank card had been cancelled and the internet banking password had been changed. I am satisfied on the evidence before me, and I find, that TE did not have the capacity at that time to make those requests to the Bank independently.
Following this incident, DX reiterated to CC the financial arrangements that had been agreed when she first arrived; DX and MX would provide her with $500 cash each week and take her shopping to buy a weekly food shop, along with cigarettes and beer.[10] If she needed anything else, all she needed to do was ask them. As CC had the $2,000, the cash payments were ceased for a while, but the other purchases continued.
[10] CC agrees with this summary, save to say that DX would provide her with $300 per week, not $500. At the Hearing, GN stated that she assisted DX with withdrawing and providing $500 per week to CC; ts 20, 5 November 2024.
DX and the Neighbour were in contact by text message throughout this period. DX gave evidence that the Neighbour told her that he was providing CC with money because she said that she had none. CC gave firm evidence at the Hearing that she did not ask the Neighbour for any money.[11] I accept her evidence.
[11] ts 37, 5 November 2024.
The Neighbour also reported an occasion where CC was at his home, crying and worried, as she had found TE's will which left his estate equally between DX, MX and SE. DX said that the family was hurt by this, as they had been providing CC with money and taking her out for many lunches and outings, and either GN or DX would take CC and SE to medical and other appointments.[12] The comments from the Neighbour created, in DX's mind, the appearance that CC was ungrateful and was complaining to the Neighbour.
[12] ts 35, 5 November 2024.
Despite this, it appears that the rest of the visit went well. CC and SE spent Christmas Day with GN, DX, MX and the rest of the family. When CC and SE returned to Country A on 3 February 2024, GN assisted with the withdrawal of cash and gave evidence that CC took over $4,000 back to Country A.[13] DX continued to provide financial support to CC after she returned to Country A. The Neighbour maintained contact with CC and SE by social media.
[13] ts 20, 5 November 2024.
April - July 2024 - paternity test
In April 2024, DX and MX decided that it was necessary for SE to undertake a paternity test to prove that he was their brother. They posted a paternity test to CC in Country A. The reason the request was made is not known by the Tribunal, as TE's actions indicated that he always considered himself to be SE's father; he signed his birth certificate, his passport application and has left his estate equally to his children DX, MX and SE.
The Neighbour says that CC sought his advice about the paternity test because she was offended by being asked to do it.[14] The test was returned unopened. When DX messaged CC to ask if she had received the test, as the post office said that the test was still waiting to be collected, CC responded to say:[15]
The kit send back already there you wat coming soon
[14] Witness statement of the Neighbour filed on 12 November 2024, paragraph 46.
[15] Text messages attached to submissions filed by DX on 8 October 2024, page 9.
The meaning CC was intending to convey was that the test was being sent back to Australia. However, DX interpreted CC's message to say that she has completed it and sent it back. This is clearly a misunderstanding.
When CC messaged DX to ask why she had stopped sending money,[16] DX responded to say:[17]
Hi [CC] , since [MX] is signatory of Dads acount [sic] , no money can be taken from Dads bank unless he signs to say its ok. [MX] requested that the paternity test be done and until its done no money is to be sent over! He said since you refused to pick up the test and you lied saying you did it and sent it back you must also be lying about [SE] being Dads son otherwise you would of just done the test. Sorry there is nothing we can do about that now. We are very confused about you not picking it up and you told us you did. The test has come back in the mail unopened! Why do you lie to us ?
[16] Witness statement of the Neighbour filed on 12 November 2024, Annexure B.
[17] Text messages attached to submissions filed by DX on 8 October 2024, page 12. It is not clear what date the message was sent, but the response from CC was sent on 4 July 2024.
CC responded to say that they would do the paternity test when they return to Australia.[18] Despite saying that she would not send any money, DX did continue to send money. The financial support was again suspended in September, which is discussed further below.
[18] Text messages attached to submissions filed by DX on 8 October 2024, page 12.
August 2024 - return to Australia
In June 2024, DX saw on social media that the Neighbour sent SE a message on his birthday referring to there not being much longer to wait.[19] DX messaged the Neighbour to ask if CC and SE were coming to Australia and the Neighbour said 'no'. DX also messaged the Neighbour's partner and the answer from her was also 'no'.[20]
[19] ts 35, 5 November 2024.
[20] ts 35, 5 November 2024.
The Neighbour sponsored CC's visa to travel to Australia and paid for the flights. He also picked them up from the airport on 18 August 2024. DX, MX and GN were not told that CC and SE arrived in Australia. CC and SE stayed with the Neighbour for a few days before going to the Property.[21] CC gave evidence that the Neighbour called DX's former husband XY to say that CC and SE were in the south-west and would be going to the Property, but XY said that they were not welcome to stay at the Property.[22] This message was not given to DX, or authorised by her, as she had separated from XY.[23]
[21] ts 52, 5 November 2024.
[22] ts 52, 5 November 2024.
[23] ts 52, 5 November 2024.
Shortly thereafter, the Neighbour took CC and SE to Centrelink to see if SE was entitled to an allowance or payment due to being an Australian citizen. SE started attending High School again.
A number of significant events happened in the next week or so that caused further confusion, suspicion and conflict:
(a)on 22 August, the Neighbour called DX to announce that CC and SE had arrived;[24]
(b)on 23 August, DX received a call from a representative from DCP who said that DX was the legal guardian for SE because she was her father's attorney. The representative also said that it was unsafe for SE to live with TE due to his aggression.[25] No one that attended the Hearing knew how DCP obtained DX's phone number. I note that both SE and the Neighbour have DX's phone number;
(c)in August, the Neighbour arranged for CC to obtain legal advice from Mr B. On 2 September, the application was filed with the Tribunal, attaching the Bank Documents that were obtained from the Bank on 11 October 2023. DX stopped providing financial support to CC due to the belief that CC did not need money as she obviously had money to pay a solicitor but continued to provide groceries. DX had no way of knowing that the Neighbour was paying Mr B's legal fees; and
(d)in August or early September, the Neighbour arranged for CC to meet with an immigration lawyer to seek advice about commencing an application for CC to remain in Australia on a permanent basis.[26] The Neighbour is also paying the legal fees associated with this solicitor.
[24] ts 35, 5 November 2024.
[25] ts 35, 5 November 2024.
[26] Letter from Mr Y dated 9 September 2024.
The Neighbour, in his witness statement and the submissions made by his father, professed his desire to help TE, CC and SE, on the basis that they have been abandoned by DX and MX. However, the Neighbour lacks insight into the role he has played in the conflict, which began with him undermining DX shortly after CC and SE arrived in Australia, first in relation to SE's school enrolment and second, when he took CC and TE to the Bank. DX is TE's chosen attorney and the person responsible for managing his estate, and I find that DX took appropriate protective actions in relation to TE at that time.
The Neighbour's conduct in surreptitiously bringing CC and SE to Australia with no notice to the family is difficult to understand and served to compound the lack of trust between CC, DX and MX. This is articulated in MX's witness statement where he describes how he feels like the family:[27]
… is under attack now from a coalition of felons, liars and thieves who have seen my dad's failing health as an opportunity to steal from him and conspire against my dad and my family.
…
[The Neighbour has] aligned himself with my dad's estranged girlfriend and paid for her and her son (who is not biologically my dad's son or my brother) to enter this country and wreak havoc in my family's life.
…
[CC] and [SE] have broken my heart. I will never forgive them for what they have done.
[27] Witness statement filed by MX on 29 October 2024.
Matters considered by the Tribunal re application under s 40
The primary concern of the Tribunal when making decisions under the Guardianship and Administration Act 1990 (WA) (GA Act) is the best interests of the person for whom the application was made. The starting point for the Tribunal is that every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments in respect of matters relating to their estate and their person. This is referred to as the 'presumption of capacity' and if set aside by clear evidence, the Tribunal can consider making guardianship and administration orders.
When deciding whether to appoint a guardian or an administrator, the Tribunal must address three stages of enquiry as follows:
(a)the first stage is to determine whether the person lacks the capacity to make decisions about their personal and financial matters in accordance with the tests for incapacity set out in the GA Act.[28] If the person has capacity, the application will be dismissed;
(b)if the person is deemed incapable, the second enquiry is whether there is a need for the Tribunal to make an order. The Tribunal must consider whether there is another way for decisions to be made for the person that is less restrictive on their freedom of decision and action than the imposition of orders. If there is another way for decisions to be made, the application will be dismissed; and
(c)if there is a need for the Tribunal to make an order, the third stage of enquiry involves the Tribunal determining who the guardian or administrator will be, the functions or powers they require and how long the orders will run before they are reviewed.
[28] GA Act s 64(1) sets out the test for incapacity for financial decisions and s 43(1) of the GA Act sets out the test for incapacity for personal decisions.
If a person has signed an enduring power of attorney like TE, the Tribunal will consider the actions of the attorney at the second stage of enquiry to determine whether that arrangement is a less restrictive way for decisions to be made. If the attorney has demonstrated that they have not complied with, or are unable to comply with, their obligations and duties pursuant to the power, the Tribunal can revoke, vary or suspend the power and appoint an administrator.[29]
[29] The Tribunal can only vary or suspend an enduring power of attorney if an application is made under s 109(1)(c) as it was in this case. In an application under s 40, the Tribunal can only revoke an enduring power of attorney.
The Tribunal will take all facts and circumstances into account when determining the best interests of the person concerned. The Tribunal may inform itself on any matter as it sees fit,[30] and is not bound by the rules of evidence,[31] which ensures, as far as possible, that all relevant information can be considered by the Tribunal to make the correct decision in the best interests of the person concerned.
[30] SAT Act, s 32(4).
[31] SAT Act, s 32(2).
I have taken into account the oral evidence given at the Hearing and the written evidence filed in these proceedings and need not set it out in detail. The relevant features are summarised in these reasons.
Issues the Tribunal must determine re application under s 109(1)(c)
CC made the application pursuant to both s 40 and s 109(1)(c) of the GA Act. This section states:
109.On application State Administrative Tribunal may intervene
(1)A person who has, in the opinion of the State Administrative Tribunal, a proper interest in the matter may apply to the Tribunal for an order —
…
(c)revoking or varying the terms of an enduring power of attorney, appointing a substitute donee of the power or confirming that a person appointed to be the substitute donee of the power has become the donee.
The threshold issue for an application under s 109(1) is that the applicant has, in the opinion of the Tribunal, 'a proper interest in the matter'. Any person who raises a genuine concern that an attorney has failed to comply with their obligations is likely to be deemed to have a proper interest.[32]
[32] BFO & ORS and KPW [2014] WASAT 68 at [28].
I am satisfied, and I find, that CC has a proper interest in the conduct of TE's attorney as DX did not provide regular financial support to CC as requested by TE when the EPA was signed. I do not accept DX's reasons for ceasing CC's financial support as reasonable, being that CC lied about taking the paternity test (or that a paternity test was required at all) or that CC did not need money because she engaged a solicitor.
TE's views and wishes
The Tribunal must take TE's views and wishes into account, as expressed, or as gathered from his previous actions. TE did not attend the Hearing as he was too unwell, but when he spoke with the Investigator, he gave vague responses to questions, such as 'no complaints'. When the Investigator asked TE his view about the upcoming hearing, TE responded with 'sounds good'. When asked about CC and DX, he said that they were also good. When the Investigator asked TE for his views about the application, or how his finances were currently managed, his response was polite but did not suggest he understood what he was being asked.
TE expressed his wish in March 2022 that he wanted DX to manage his financial affairs. As was disclosed in the Hearing, TE also expressed a wish in his will that he wants his estate to be divided equally between his children, MX, DX and SE.[33]
[33] The date of the will is not known.
TE expressed a further wish, through his actions from 2007 up until the point where he was severely affected by his illness and unable to act independently, that he was in a committed relationship with CC. GN assisted TE to prepare a 'letter of invitation' to CC to invite her to visit Australia, which appears to be a requirement in Country A. The letter, which TE signed on 13 September 2022, reads:[34]
I invite my partner, [CC] and our son, [SE] to come to Western Australia and stay with me at my [Property].
I am able to provide accommodation and financial support and would like them to stay as long as their visa allows.
…
[34] Witness statement of the Neighbour filed on 12 November 2024, Annexure 'E'.
There appears to be a view from MX that CC and TE are no longer in a relationship as he referred to her as TE's 'estranged girlfriend'. However, there is no evidence before the Tribunal that TE ended the relationship with CC, or that she ended it with him. To the contrary, CC is committed to caring for TE while he is unwell.
The report prepared by TE's carers (Report) states that TE is very happy to have CC and SE back living with him, which he openly expresses.[35] The Report states that there appeared to be some misunderstanding or lack of clarity unclear as to why CC 'left and then suddenly returned home'.[36] The Report goes on to say that CC is providing a great level of care as his current wounds have healed and he looks and appears to be very happy.[37]
[35] Service provider report dated 24 September 2024 by Ms C, page 2.
[36] Service provider report dated 24 September 2024 by Ms C, page 2.
[37] Service provider report dated 24 September 2024 by Ms C, page 5.
TE also made his views and wishes clear to DX when he appointed her as his attorney when he asked her to '[H]andle Western Union money transfers at the Post Office to [CC] when needed'. His behaviour for the 14 or so years prior to becoming unwell demonstrated his commitment to financially support CC and SE.
I am satisfied, and I find, that TE's wish is to spend time with CC and SE and to continue to financially support them. It is tragic for TE and his family that he suddenly became unwell in late 2022 and has been unable to continue to live his life as he wanted to, which was to continuously travel, with just a backpack, and spend time with all of the people with whom he shares meaningful, loving relationships.
Issue 1 - does TE lack the capacity to make his own decisions about his personal and financial matters?
(1)(a) When can an administrator be appointed? The test for incapacity
To appoint an administrator for TE, I must be satisfied that he is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate.
(1)(b) Does TE have a mental disability?
TE saw his doctor shortly after arriving home in September 2022 and underwent a magnetic resonance imaging scan (MRI) of his brain. The MRI showed that there were changes in the structure of TE's brain and volume loss in the hippocampus which was 'moderate to severe'. Dr T noted that this was advanced for his age and can be associated with Alzheimer's disease.[38]
[38] MRI Brain scan report dated 20 October 2022 by Dr T.
The medical report by TE's general practitioner, Dr P, confirms that TE has a mental disability, and the condition is progressive.[39] The report notes that TE is incapable of making decisions about financial or legal matters. TE undertook a mini-mental state exam and scored 3/30 which indicates a severe level of impairment.
[39] Medical Report by Dr P dated 14 October 2024.
I am satisfied, and I find, that the diagnosis of Alzheimer's dementia falls within the meaning of 'mental disability' as defined in the GA Act.
(1)(c) Does the mental disability cause TE to be unable to make reasonable judgments about his estate?
A person's 'estate' includes their real and personal property, all assets and liabilities, and all of their financial affairs. TE's estate is substantial and consists of:
(a)assets owned in TE's personal name including the Property where he lives, land in a coastal town, Town D, two vehicles, a number of caravans and boats, a term deposit and two bank accounts;
(b)assets owned by a company that TE controls (Company) which include a term deposit and the business premises in Town E from which he used to operate his business (Premises). The Premises are rented to the new owners of the business for approximately $3,500 per month; and
(c)a trust that owns the house next door to the Premises (House). The House has been rented to the same tenants for eight years, consistent with how TE conducted himself, on a 'handshake' agreement and is currently rented at $320 per week.
The combination of rent from the Premises and House is around $60,000 per year, of which around $53,000 per year is paid to TE as his income.
For the Tribunal to decide whether TE is 'unable' to make reasonable judgments about his estate, I must consider the extent to which TE is able to engage in the cognitive process required to make a 'reasonable judgment and then compare that against TE's estate and circumstances.
In my view, there is no doubt that the diagnosis of Alzheimer's dementia identified by Dr P is the cause of TE's inability to make reasonable judgments in respect of his estate. The evidence before me as set out in various witness statements from the people that know TE well, which I accept is, that TE worked hard, earned his own income, sold his Business, lived independently and make his own financial decisions until his sudden decline in September 2022.
When DX started managing TE's finances in March 2022 when he left Australia, the only payment that was outstanding was TE's land rates, which TE had advised DX that she needed to check. Since then, she has had to manage SE's entire estate and multiple entities as he has not been able to.
I am satisfied, and I find, that the mental disability is the cause of TE's inability to make reasonable judgments in respect of his estate.
(1)(d) Conclusion on capacity to make financial decisions
Having regard to the documentary and oral evidence provided to the Tribunal, I am satisfied on the balance of probabilities, and I find, that the presumption of capacity has been set aside in respect of TE's ability to make reasonable judgments in respect of his estate. TE is therefore a person for whom I can appoint an administrator.
(1)(e) When can a guardian be appointed? The test for incapacity
To appoint a guardian for TE, I must be satisfied that he is over 18 years of age and that one or more of the following criteria apply:
(a)he is incapable of looking after his own health and safety;
(b)he is unable to make reasonable judgments in respect of matters relating to his person; or
(c)he is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
(1)(f) Does TE lack the capacity to make personal decisions?
I am satisfied, and I find, that TE is currently incapable of looking after his own health and safety. DX has organised carers to attend TE's home daily to assist with bathing, meals, light cleaning duties and providing nursing care. Another carer HA has been privately engaged to provide evening care twice per week and to ensure consistent care when DX is unavailable, as TE can become confused with interacting with new people. DX, MX and GN will also visit morning and night to provide supervision, and to coordinate medical appointments, manage all shopping and household needs, and ensure TE is safe and the Property is maintained.
I am satisfied, and I find, that TE is currently incapable of making reasonable judgments in respect of his person. The Report states that he has no insight into his support needs and is unable to follow instructions. TE is aware that things are not the same and will say 'something is wrong with me', but he does not understand what has changed.[40]
[40] Service provider report dated 24 September 2024 by Ms C, page 4.
I am satisfied, and I find, that TE is in need of supervision and oversight in order to protect his health and safety. TE had a basal cell carcinoma removed from his outer ear lobe and a skin graft attached in early 2024. GN cared for him for five days before he went home to the Property. When she visited him the next day, he had removed the bandage on his ear and was in pain as he had been picking the skin graft, which had detached. She has since taken him to various hospital and medical appointments. TE attended a further medical appointment on the morning of the Hearing and DX was advised that he needs surgery to remove his entire ear.
(1)(g) Conclusion on capacity to make personal decisions
I am satisfied, and I find, that the presumption of capacity has been set aside in relation to personal decisions and TE is a person for whom I can appoint a guardian.
Issue 2 - is there a need for orders or a less restrictive option available?
Having regard to that evidence, there is no doubt that TE requires assistance to deal with his estate and to make decisions about his personal matters. The question I need to answer at this stage is not whether he needs assistance, but whether he needs an administrator or a guardian to be appointed for that purpose.
I must bear in mind the need to adopt a less restrictive option if possible. To do that, I must examine how the EPA has functioned thus far.
I am satisfied that TE had the capacity to understand the nature and effect of an enduring power of attorney when he signed the EPA in March 2022. At that time, he was independently managing all aspects of his estate, with the only outstanding matter being the unpaid shire rates which TE identified she would need to follow up.
(2)(a) Has the EPA been working in TE's best interests?
DX has successfully managed all aspects of TE's estate since March 2022 using the EPA. TE's accountant of 10 years provided a statement to the Tribunal confirming that DX has always provided the relevant documentation for TE's personal tax returns and the documents to prepare the financial statements and tax returns for his business investment structures, which are rather complex.[41] The purchaser of the business also provided a statement setting out her view of DX's ability to competently manager TE's estate.[42] I accept the evidence set out in these statements.
[41] Statement by Ms M dated 14 October 2024.
[42] Statement by Ms S dated 15 October 2024.
While DX has successfully managed all aspects of TE's estate since March 2022 using the EPA, she has not followed TE's wishes, and not fulfilled her obligations, in terms of providing for CC and SE financially.
(2)(b) Is the EPA an appropriate way for financial decisions to be made?
I am satisfied, and I find, that the EPA is not currently operating to provide an appropriate way for TE's finances to be managed in his best interests due to the lack of consistent financial support provided to CC and SE. It is likely that many decisions will need to be made in the near future that will involve funds being provided to CC and SE, and due to the family conflict, independence is required in the management of TE's estate.
I will suspend the operation of the EPA for one year. It is hoped that a 'circuit breaker' of one year may be enough for important arrangements to be made in relation to TE's estate, at which time, the EPA may be able to be reinstated.
(2)(c) Conclusion – is there a need for an administrator?
I am satisfied on the evidence before me, and I find, that there is no current less restrictive way for decisions to be made in relation to TE's estate. TE needs the Tribunal to appoint an independent administrator.
(2)(d) Is there a need for a guardian?
The conflict between DX, MX and CC means that CC may not be included when important decisions need to be made about TE's welfare. The informal assistance of the family, which is a less restrictive alternative, had previously sufficed. However, the level of distrust in the family has only increased with CC and SE's unannounced arrival in Australia in August, and the inability of the family members to constructively communicate may impact on TE's care. A guardian is needed because of the risk that the break down in the family relationships poses to TE.
TE requires someone to have the legal authority to make decisions about his personal matters and to take the views of everyone closest to him into account when making important decisions. He also requires his guardian to keep all family members updated about his condition and the decisions that are made in relation to his care and welfare.
I am satisfied, and I find, that there is no less restrictive way to make the numerous decisions which need to be made for TE. TE needs the Tribunal to appoint a guardian with those functions.
Issue 3 - who, what and how long?
(3)(a) Who should be TE's administrator?
When considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in the best interests of TE, is suitable to act as the administrator of his estate and will be able to perform the functions vested in them.
DX has nominated herself for appointment as TE's administrator. I find that DX is over the age of 18 years and has consented to act as the administrator. However, I find that DX is unsuitable for appointment as TE's limited administrator due to the conflict that has arisen with CC, which means that DX will be unable to perform the functions vested in the administrator.
The only option open to the Tribunal is to appoint the Public Trustee as TE's administrator.
(3)(b) What should the administrator's powers be?
As set out earlier, I am satisfied that it is appropriate that the administration order be plenary as TE's illness has progressed to a point where he is unable to make even simple financial decisions. I will authorise the administrator to use TE's assets for the maintenance and support of CC and SE and I will include an authority that the administrator is authorised to expend $2,000 per year on gifts on TE's behalf noting that he has three children, a de facto partner and a close relationship with his former wife.
(3)(c) Who should be TE's guardian?
When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in the best interests of the person, is suitable to act as the guardian, is not in a position where their interests' conflict or may conflict with TE's interests and that the proposed guardian will be able to perform functions vested in them.
The only person nominating themselves for appointment as TE's guardian is DX. The guardian must (among other things):
(a)take into account, as far as possible, the wishes of the person as expressed, in whatever manner, or as gathered from the person's previous actions;[43] and
(b)act in TE's best interests in respect of maintaining his supportive relationships with all his family members.[44]
[43] GA Act, s 51(2)(e).
[44] GA Act, s 51(2)(g).
DX has been involved in all aspects of TE's care and by all accounts, has made sensible decisions and arrangements for her father to keep him safe and allow him to live the way he wants to. However, DX is not suitable for appointment as TE's guardian due to the family conflict and the risk that CC will not be included in discussions about important matters about TE's welfare. I am satisfied, and I find, that TE would want CC involved in his care and important decisions.
I am satisfied, and I find, that as the only person willing to be appointed is unsuitable, the only option open to the Tribunal is to appoint the Public Advocate as TE's guardian.
This does not mean that DX will not have any involvement in TE's care or that her current caring role will reduce. The guardian will usually become involved if a decision needs to be made to change something. For example, if TE's accommodation needed to change, family members can make suggestions to the guardian, who will consider all options, make a decision in TE's best interests and communicate that decision to all family members. The appointment of an independent guardian will allow all family members to be involved in important decisions that relate to TE.
(3)(d) What functions should the guardian have?
Medical treatment
I find that TE requires a medical treatment guardian to give informed consent to medical treatment and procedures. The evidence from Dr P is that TE lacks the capacity to make decisions about medical treatment, and in addition to managing the Alzheimer's dementia, he has ongoing treatment decisions to be made in relation to his ear.
The use of s 110ZD of the GA Act could be problematic when making prompt medical treatment decisions as a de facto spouse is higher on the hierarchy of decision-makers than an adult child, noting that CC lives in Country A.
I am satisfied, and I find, that TE requires a guardian to make decisions about medical treatment to ensure that there is clarity for all health professionals that treat him about who has the authority to make medical treatment decisions.
Accommodation - where he will live
I am satisfied, and I find, that TE requires a guardian to decide where he will live. TE's illness may progress to a point where he will require a higher level of supervision that can only be provided in a residential aged care facility.
DX and MX have identified a potential nursing home facility that is centrally located and accessible to family. DX has identified the property in Town D that could be sold to pay the refundable accommodation deposit, so the financial aspects of alternate accommodation have already been sensibly considered. However, I am satisfied that the decision about where he will live must be made by a guardian appointed by the Tribunal after speaking with all of TE's family members.
Accommodation - who he will live with
I am satisfied, and I find, that a guardian will need to decide who TE will live with. When CC and SE visit from Country A, they live with TE at the Property, which is a caravan and a shed. DX had considered purchasing a demountable home so that she could live at the Property to provide sufficient care and oversight for TE if his care needs increase, as a means of keeping TE out of residential aged care for as long as possible.
Again, such a decision that would need to be made by TE's guardian, considering the views of all of TE's family members.
Services
DX has arranged all the services TE requires to live safely at the Property. However, when CC is at the Property, the level of services he requires decreases. It is therefore necessary that TE's guardian knows when CC will be caring for TE so that the services can be adjusted accordingly.
I am therefore satisfied that there is a need for a guardian appointed by the Tribunal to make decisions about the services TE will receive, to engage the specific service providers and to keep of all the family members updated in relation to the provision of services to TE.
Contact
I am satisfied, and I find, that it is in TE's best interests that his guardian has the authority to decide who he will have contact with and the extent of that contact to protect TE's supportive, meaningful relationships, specifically with CC and SE. The guardian will also be empowered to prevent contact between TE and people that have not had a positive influence on his life and supportive relationships, if the guardian decides it is in TE's best interests to do so.
Legal function
The plenary administration order authorises the Public Trustee to manage all TE's legal matters that relate to his estate. However, any legal matters that do not relate to his estate are dealt with by a guardian with a legal function. I am satisfied, and I find, that TE's guardian may need to coordinate legal matters in TE's best interests that relate to:
(a)immigration in respect of CC's sponsorship for any further visits, her desired application to become a permanent resident, issues in respect of SE's passport or the AFP;
(b)any further contact with DCP or matters relating to the Children and Community Services Act 2004 (WA); and
(c)any applications required under the Restraining Orders Act 1997 (WA) if a decision is made that TE is not to have contact with certain people.
Authorisations
I will include authorisations to allow the Public Advocate to notify various State and Federal Government agencies about the existence and effect of this order due to the involvement of the family with those agencies. I will also authorise the Public Advocate to provide any documents or information to third parties as she considers necessary and in the best interests of TE.
Conclusion
I am therefore satisfied that there is a need for a guardian appointed by the Tribunal to make decisions for TE about his medical treatment, accommodation, services, contact and legal matters that do not relate to his estate.
(3)(e) How long should the order/s run before review?
When making orders, the Tribunal is required to fix a period for the review of the order, the maximum period of time allowed being five years. The medical evidence is clear that TE has a diagnosis of a progressive illness such that his need for substitute decision-makers will be lifelong. I will impose the guardianship and administration orders for one year only before they are reviewed, in the hope that they will act as a 'circuit breaker' and that there may be a sufficient resolution of the issues which currently preclude the appointment of a family member.
At the Hearing, MX expressed his view that he felt like:[45]
[CC] has been very dishonest with [the Neighbour] and has manipulated him … I loved [CC] and [SE] for many years and just it has broken my heart that - that she's conspiring against the family now, especially considering that … the plan was for us all to live happily ever after, and I just don't understand why we couldn't stick to that plan.
Like, why couldn't we all just live happily ever after? …
[45] ts 44, 5 November 2024.
These statements, in my view, demonstrate:
(a)the sadness, shock, pain and anger that often accompany a dementia diagnosis in a much-loved family member;
(b)the influence of the Neighbour and the actions taken by him that have undermined decisions made by DX and destabilised the family; and
(c)the impact of the various misunderstandings, incorrect beliefs and misleading statements made in the last 15 months.
The result has been an intense family conflict which is harming TE, and more so, SE. I am hopeful that with a 12-month circuit breaker, all parties can focus on TE's best interests and how they will navigate his future while supporting each other in the inevitable slow burning grief that accompanies a dementia diagnosis.
Orders
GAA 4527 of 2024
On an application pursuant to s 109(1)(c) of the Guardianship and Administration Act 1990 (WA)
The Tribunal notes:
1.[TE] signed an enduring power of attorney on 3 March 2022 appointing [DX] as his sole enduring attorney.
The Tribunal orders:
2.The enduring power of attorney is suspended during any period of the appointment of the Public Trustee as plenary administrator of [TE].
GAA 4735 of 2024
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [TE] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)in need of an administrator of his estate;
(c)incapable of looking after his own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to his person;
(e)in need of oversight, care or control in the interests of his own health and safety; and
(f)in need of a guardian.
Administration
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The administrator is authorised to apply or expend moneys of the represented person, whether income or capital, for the maintenance, necessaries, comforts and benefits of the represented person or the spouse of the represented person or the minor child of the represented person, in such manner and to such extent as the administrator, having regard to the circumstances and the value of the estate of that person, considers proper and reasonable.
4.The administrator is authorised to expend up to a total of $2000 per annum on gifts on behalf of the represented person.
5.The Tribunal will provide the Public Trustee with copies of all documents filed in matters GAA/4527/2024 and GAA/4735/2024.
6.The administration order is to be reviewed by 22 November 2025.
Guardianship
7.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(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 Guardianship and Administration Act 1990 (WA);
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact;
(e)to determine the services to which the represented person should have access; and
(f)to do all things and sign all documents in respect of legal proceedings and legal matters on behalf of the represented person except proceedings relating to his estate and to:
(i)advocate on behalf of the represented person;
(ii)seek legal advice on behalf of the represented person;
(iii)commence, conduct or defend legal proceedings in the name of the represented person; and
(iv)settle legal proceedings on terms the guardian considers to be in the represented person's best interests.
8.The Public Advocate is authorised to notify the Department of Communities, the Western Australia Police Force, the Australian Federal Police, the Department of Foreign Affairs and Trade and Services Australia about the existence and effect of this order as required.
9.The Public Advocate is authorised in exercise of these functions or in related matters or when making any representations or enquiries to government departments or health or welfare agencies or other organisations to provide medical or other information and documents held by her office as she considers necessary to the third parties to advance the best interests of the represented person.
10.The guardianship order is to be reviewed by 22 November 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
22 NOVEMBER 2024
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