THE PUBLIC TRUSTEE and MAP - [2010] WASAT 138

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: THE PUBLIC TRUSTEE and MAP [2010] WASAT 138

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MS M JORDAN (SENIOR SESSIONAL MEMBER)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)

HEARD: 21 SEPTEMBER 2009
22 SEPTEMBER 2009

DELIVERED : 30 SEPTEMBER 2010

FILE NO/S: GAA 2669 of 2008
GAA 2694 of 2008
GAA 2695 of 2008

BETWEEN: THE PUBLIC TRUSTEE
Applicant
AND
MAP
Represented person

FILE NO/S :GAA 2667 of 2008
GAA 2697 of 2008
GAA 2698 of 2008

BETWEEN :THE PUBLIC TRUSTEE
Applicant
AND
AWP
Represented Person

Catchwords:

Guardianship and administration - Need for appointment - Whether gift of home should be set aside - Whether transaction entered into within two months of appointment of administrator - Gift resulting in loss of pension entitlement - Effect of transaction not understood by represented person

Legislation:

Guardianship and Administration Act 1990 (WA), s 64(1), s 82, s 82(1), s 84
Mental Health Act 1996 (WA)

Result:

Guardianship and administration orders confirmed: Transfer of property set aside

Category: B

Representation:

GAA 2669 of 2008

GAA 2694 of 2008

GAA 2695 of 2008

Counsel:

Applicant: Mr Moen (in relation to MAP)
Represented person : Ms K Brown (in relation to MAP)

Solicitors:

Applicant: Public Trustee
Represented person : Public Trustee

GAA 2667 of 2008

GAA 2697 of 2008

GAA 2698 of 2008

Counsel:

Applicant: Mr Criddle (in relation to AWP)
Represented Person : Ms T Minchin (in relation to AWP)

Solicitors:

Applicant: Public Trustee
Represented Person : Public Trustee

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Public Trustee, who had been appointed administrator for each of MAP and AWP brought applications on behalf of each represented person to set aside a transfer by way of gift of their interest in their former home. They had held their interest as joint tenants in equal shares with their estranged daughter. The transfer resulted in their daughter and their granddaughter holding the home as joint tenants.
The applications were heard at the same time as reviews of orders for guardianship and administration which had fallen due.
The Tribunal confirmed the continuation of the guardianship and administration orders, although with some variations.
It also set aside the gift on the basis that it had been made only shortly before MAP was declared incapable of managing her affairs, MAP misunderstood the effect of the transaction, and the transaction was detrimental to both MAP and AWP's capacity to meet their living expenses. The whole transaction was set aside on the basis that the disposition of MAP's interest in the land was not divisible from the rest of the transaction. While the orders in relation to AWP were made more than two months after he was alleged to have entered the disposition, the Tribunal noted that it seemed clear he lacked capacity at the time the transfer was signed. The Tribunal did not consider it necessary to determine an assertion by MAP at the hearing that the signatures on the transfer were not her and AWP's signatures.

Introduction

The hearing of this matter concerned questions of guardianship and administration of a woman, MAP, born on 25 April 1925, and her husband AWP, born on 23 March 1917. Each was the subject of existing orders for guardianship and administration which fell for review. Those reviews are the subject of these reasons.
During the course of the administrations, a major issue arose as to financial problems faced by both MAP and AWP by reason of them having transferred their interests in their former home (the Property) to MAP's granddaughter KAC and her daughter REC. The transfer had been made by way of gift resulting in disqualification of MAP and REC from an entitlement to an Australian pension. Questions arose as to the circumstances of that transfer which led to the Public Trustee, who was the appointed administrator for each of MAP and AWP, applying to have the transaction set aside pursuant to s 82 of the Guardianship and Administration Act 1990 WA (GA Act)
At the conclusion of the hearing the Tribunal made orders continuing the appointments of the Public Advocate as guardian, and the Public Trustee as administrator, for each of MAP and AWP. It also made orders setting aside the transfer of the Property. In doing so the Tribunal did not provide full reasons, but indicated that written reasons would be provided. These are those reasons.

The Application

The matters for determination by the Tribunal in relation to MAP are:
a)A review pursuant to s 84 of the GA Act of the orders made 15 January 2008 in relation to the appointment of the Public Advocate as guardian with the functions of treatment, accommodation, services and contact as to whether or not MAP continues to be a person for whom a guardianship order may be made; whether she needs a guardian to carry out each of those functions, and whether the present appointment of the Public Advocate should continue.
b)A review pursuant to s 84 of the GA Act of the orders made in relation to the appointment of the Public Trustee as plenary administrator, and whether or not MAP continues to be a person for whom an administration order may be made; whether or not MAP needs an administrator, whether the investigative functions should continue, and whether the appointment of the Public Trustee should continue.
c)An application brought by the administrator for MAP pursuant to s 82 of GA Act to set aside the transfer of land dated 18 December 2007, registered on 10 January 2008 in relation to the Property; and for the Register of Titles to be amended to show the registered proprietors as MAP, AWP and REC as joint tenants.
The matters for determination by the Tribunal in relation to AWP are:
a)A review pursuant to s 84 of GA Act of the orders made in relation to the appointment of the Public Advocate as guardian with the functions of treatment, accommodation, services and contact as to whether or not AWP continues to be a person for whom a guardianship order may be made; whether he needs a guardian to carry out each of those functions, and whether the present appointment of the Public Advocate should continue.
b)A review pursuant to s 84 of GA Act of the orders made in relation to the appointment of the Public Trustee as plenary administrator, whether or not AWP continues to be a person for whom an administration order may be made; whether he needs an administrator and whether the investigative functions should continue and whether the appointment of the Public Trustee should continue.
c)An application brought by the administrator for AWP pursuant to s 82 to set aside the transfer of land dated 18 December 2007, registered on 10 January 2008 in relation to the Property; and for the Register of Titles to be amended to show the registered proprietors as MAP, AWP and REC as joint tenants.

History of the matters

On 4 December 2007, KAC signed applications for both guardianship and administration orders to be made in relation to her grandmother MAP and AWP who is her mother’s stepfather, but whom KAC referred to as her grandfather.
Following the lodgement of these applications, KAC’s mother, REC made an application (with KAC's concurrence) to replace KAC as the applicant. Both matters were listed to be heard at Selby Lodge where MAP was detained for assessment and treatment. On that day, orders were made in relation to MAP as follows, with the application of AWP adjourned to 22 February 2008.
1.The Public Trustee of 565 Hay Street Perth Western Australia be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.The administrator investigate:
(a)the extent of the estate of the represented person, some of which comprises investments in the United States of America;
(b)the circumstances in which the represented person’s interest in the [Property] was transferred to her granddaughter KAC and whether the transfer should be set aside;
(c)transactions on the represented persons various bank accounts and share trading undertaken since 1 January 2005 by KAC; and
(d)take appropriate legal action deemed to be in the best interest of the represented person.
3.This order is to be reviewed by 15 January 2009.
The guardianship orders in relation to MAP made on 15 January 2008 were:
1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to consent to any treatment or health care of the represented person;
(c)To determine what contact, if any, the represented person should have with others and the extent of that contact; and
(d)To decide which services the represented person requires.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.This order is to be reviewed by 15 January 2009.
The administration orders made in relation to AWP on 22 February 2008 were:
1.The Public Trustee of 565 Hay Street, Perth, Western Australia be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.The administrator investigate:
(a)the extent of the estate of the represented person, some of which comprises investments in the United States of America;
(b)the circumstances in which the represented person’s interest in the [Property], was transferred to KAC and whether the transfer should be set aside;
(c)the circumstances under which the interest of the represented person’s son RP, in the [Property] was transferred out of his name in 2005; and
(d)transactions on the represented persons various bank accounts and share trading undertaken since 1 January 2005 by KAC including the transfer of some of the represented person’s interest to KAC ;
(e)the administrator is to take appropriate legal action deemed to be in the best interest of the represented person.
3.This order is to be reviewed by 15 January 2009.
The guardianship orders made in relation to AWP on 22 February 2008 were:
1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
a.To decide where the represented person is to live, whether permanently or temporarily;
b.Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to consent to any treatment or health care of the represented person;
c.To determine what contact, if any, the represented person should have with others and the extent of that contact; and
d.To decide which services the represented person requires.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.This order is to be reviewed by 15 January 2009.

Background

The first hearing for MAP on 15 January 2008

This hearing was held at Selby Lodge and attended by MAP, KAC, REC and her then husband JC. Dr R, psychiatrist also attended the hearing, as well as Dr M who was to take over the treatment of MAP.
The application disclosed that MAP owned no real estate but 'currently stays rent free at family home'. The application however set out that MAP had an outstanding liability of '$10,000 plus' for sewage connection. Evidence was heard that the liability belonged to MAP because she had until recently owned the property and was responsible for the payment of the sewage upgrade. None of the parties present were able to tell the Tribunal when the transaction transferring the property from her name was effected, and the best estimate that was given was 'recently'. MAP told the Tribunal that she maintained a lifetime interest in the property and could live there 'until we died or as long as we elected to do so' T: [14], [15.01.08].

Evidence was given by MAP, KAC and REC that at some time prior to the hearing, perhaps as far back as 2005, KAC became a joint owner of the various bank accounts held by MAP and AWP and had operated these accounts and had purchased and sold shares, the proceeds of which were deposited into the bank account in the joint names of the three of them. The stamp duty payable on the transfer of the Property had been paid from the account in the names of all three.

Capacity

The Tribunal had the benefit of a report by Dr R, dated 14 January 2008 as well as his oral evidence. His evidence was that MAP had been transferred to the Selby Lodge from Joondalup hospital on 5 December 2007 where she had been taken by police after they were called by family because she was in possession of a loaded shotgun. Dr R’s report stated that MAP was agitated because she believed the home had been burgled and she was anticipating another burglary and wanted to protect herself and her property.
Dr R’s report continued that:
MAP presents as an alert, articulate individual with an apparently plausible account including a number of grievances none of which are overly bizarre, and therefore not totally implausible.
He continued:
… in correspondence to him, MAP uses words such as ‘charges’, ‘sentence’, ‘incarcerated’ and ‘crime sheet’ which he said may convey more than just a stylistic feature.
At the time of that hearing, MAP had not been prescribed psychotropic medications which might have potentially interfered with neurocognitive testing and secondly because MAP did not consider herself to be in need of any such medications. MAP was at the time an involuntary patient detained under the Mental Health Act 1996 (WA)
MAP acknowledged allegations raised in the application as follows:
Leaving the doors of the house open which permitted a young woman unknown to her to enter the house;
Sending a letter to the professional body of her daughter complaining of REC’s ethics in transferring an investment in US Bonds from her name into her own name and not meeting any of the expenses on the house despite being a joint owner.
Scratching a car with a screwdriver and breaking the head lights as the car had been parked on the verge in front of her house next to a no parking sign;
Reluctance to let carers into the home to assist with her husband’s diagnosed dementia;
Involvement in domestic violence that was reported to the local police on a number of occasions, either as a victim or as an aggressor.
Dr R stated in his report that:
… whilst each of MAP’s grievances and reported behaviours on their own do not appear to be remarkable, the sum of these indicate the presence of a mental disturbance consistent with a diagnosis of Delusional Disorder and which is impacting negatively on her capacity to make well informed decisions about a range of personal and financial matters.
Dr R’s oral evidence at the hearing referred to the issue of misperception and judgment by MAP. He told the Tribunal that it was difficult to assess the credibility of what was said as there were differing versions. He was however able to assess credibility independently on one issue. MAP claimed that she was injured by her husband in a bout of domestic violence and that she had to have some surgery for those injuries. (MAP believed that she had surgery to remove scarring to her scalp.) The information that Dr R was able to gain from the general practitioner was that in fact the minor surgery was for dermatological problems and not traumatic. Dr R continued:
Based on that, I can only infer, you know, MAP's very adamant claims about what happened and she believes I’m quite sure she believes this to be true but what it does is really question the validity of those views and that information. Based on that, you know, if one’s world view is shaped by misperceptions, that, I believe, will influence one’s decisionmaking and judgment about all sorts of things.
So whilst MAP is a very intelligent person and she (indistinct) sums and calculations, make decisions about stocks and bonds and bank accounts, it’s not so much the issue about the mechanics of those financial transactions. It’s more about the objectives and the goals and about allocating resources or otherwise which may be shaped or influenced by those perceptions that I mentioned earlier on but that really the crux of the assessment …
My current view is that MAP probably does have the capacity to make individual transactions which requires a certain amount of mental functioning. I believe that her decision-making would be coloured or the objectives of her financial decision-making might be coloured by her views about the important people in her life which may then have an impact on those decisions. So it’s kind of an indirect impairment but I do believe that there is an impairment … T:[23], [15.01.08]

Need for a guardian

MAP was being held as an involuntary patient at Selby Clinic and wanted to return to her home. She did not consider that there was any need for any medical intervention. She was however willing to have a guardian appointed. The Tribunal found, in the circumstances presented, a need for a guardian to make decisions about where MAP should live, about treatment, about contact with her husband given the number of police reported incidents of domestic violence, and about services she should receive should she return to community living.

Need for an administrator

The Tribunal found in the circumstances of MAP’s disturbance of thought and also in the possibility of financial exploitation that a plenary administrator was needed to manage her financial affairs and investigate the extent of any exploitation that had taken place and to take appropriate action in relation to same.

First hearing for AWP on 15 January 2008

The hearing for AWP was adjourned as the Tribunal was informed by REC that he had a son, RP, who was resident in the United States of America (from whence both MAP and AWP had migrated many years before) and that he had not been notified of the hearing. The matter was adjourned on the undertaking of REC to provide the Tribunal with the contact details for RP so that he could be served with the application.

Resumed first hearing for AWP on 22 February 2008.

This hearing also took place at Selby Lodge at the request of the parties. Present at the hearing were AWP, MAP, REC and JC who were represented by a solicitor Mr Marco Tedeschi and RP, AWP’s son who had travelled from the USA to attend the hearing.
At this hearing Mr Tedeschi had a copy of the certificate of title to the Property, which indicated that the land had been transferred from AWP, MAP and REC as joint tenants to KAC and REC as joint tenants. Mr Tedeschi did not provide his copy of the certificate of title to the Tribunal but told the Tribunal that the transfer took place on or about 21 October 2007. (T: [11], [22.02.08]) The Tribunal later ascertained that the transfer was registered on 10 January 2008. The date Mr Tedeschi had identified was the date of an earlier transfer agreement that had been rejected by Landgate in circumstances we will set out more fully later in these reasons. RP questioned the transaction as he told the Tribunal that he had himself been a registered proprietor jointly with AWP, MAP and REC. Mr Tedeschi informed the Tribunal, apparently reading from the copy certificate of title that a transaction had been registered on 5 October 2005 leaving AWP, MAP and REC as the remaining owners. (T: [11], 22.02.08]) RP stated that he had not signed any transfer to extinguish his interest in the land. He told the Tribunal that he had been asked to sign a power of attorney in favour of MAP and his father some years before but had declined to do so. He had no knowledge of the transfer nor how it had been registered without his involvement. REC told the Tribunal that she had lodged the transfer for registration but that her mother, MAP had provided her with the papers to do so.

Capacity

The Tribunal received a doctor’s guide completed by Dr G, hospital medical officer of the Joondalup Health Campus which stated that AWP was diagnosed with dementia more than two years previously, and had impaired cognitive function which was progressive. Dr G stated that AWP was incapable of making reasonable decisions with regard to his personal health care, his living situation or his financial affairs and was not capable of making a valid enduring power of attorney. This accorded with the presentation of AWP at the hearing as he indicated several times that he had no idea about what was being discussed.

Need for a guardian

AWP clearly needed an alternative decision maker to decide where he would live, treatment decisions, contact decisions given the allegations of domestic violence and decisions with regard to what services he would need should he be returned to live in the community. Whilst family members, including MAP proposed themselves to be appointed as his guardian, given the conflict within the family, the Tribunal appointed an independent guardian.

Need for an administrator

AWP clearly needed an alternative decisionmaker to decide issues regarding his finances including investigation of his assets which had been transferred out of his name and in relation to bank accounts and share transfers that had been undertaken since about 2005 by KAC.

This Hearing in relation to AWP – section 84 reviews of previous orders

Capacity

The Tribunal had the benefit of a doctor’s guide prepared by Dr B, general practitioner dated 9 December 2008 in which he confirmed AWP’s diagnosis of dementia and stated that his cognition was too impaired to be capable of making reasonable decisions with regard to his personal health care, his living situation or his financial affairs and was similarly not capable of making a valid enduring power of attorney. He further stated that AWP was too impaired to attend a hearing at the Tribunal and to do so would be both detrimental to his health and not in his best interests.
The Tribunal had the benefit of a report dated 18 August 2009 prepared by Dr H of the Office of the Public Advocate, the delegated guardian for AWP who visited him at his residential facility on 16 June 2009. Dr H stated that on that occasion AWP demonstrated significant confusion with having a conversation, and appeared to not be able to understand the role of the guardian for himself. This differed from previous visits when AWP had been able to discuss a range of things, including books he likes to read, and appeared to quite easily comprehend the guardian’s role.

Need for a guardian

The report by Dr H referred to the fact that although AWP was settled into his accommodation at an hostel, the issue of a payment of a bond for his accommodation had not yet been finalised and could not be so until the asset situation was clearer. It was anticipated that decisions regarding AWP’s accommodation may still be required to be made in the future, and noted that he did not have sufficient funds to cover clothing or haircuts and these were being provided to him by staff out of the scope of their professional role. This is something unlikely to be able to continue.
The Public Advocate was of the opinion that given AWP will continue in residential accommodation, being unable to return to his home due to his condition, there is no ongoing need for an authority to make decisions for him for services.
Dr H referred to AWP’s number of ongoing health conditions and the fact that since the current guardianship order was made, the Public Advocate had been required to make a number of treatment decisions for him, the Public Advocate is of the view that AWP has an ongoing need for an authority for treatment decisions.
With regard to the current authority for decisions regarding contact with others, Dr H in her report referred to a visit by MAP to his residential facility that did not go well, and that aggression was shown by MAP towards AWP. Since then AWP has requested a visit with his wife, but MAP advised that she did not want to have further contact with him. The Public Advocate is of the view that there is no ongoing need for the guardianship function of contact for AWP.
At this hearing, MAP proposed that KAC be appointed as AWP’s guardian. KAC told the Tribunal that she would accept this role if the Tribunal considered her to be suitable but she was not sure if she could handle administration. KAC stated to the Tribunal that she saw AWP on a regular basis but this was not supported by evidence from the residential facility nor by Dr H, his delegated guardian from information she had received from the hostel. Counsel for the administrator of AWP, Mr Criddle, also reported a conversation that he had recently had with AWP in which he said his contact with his granddaughter was very, very rare, although he conceded that this view may be affected by AWP’s dementia. Mr Criddle also told the Tribunal that he had enquired of the hostel and was told that their registers do not confirm any contact or at the level indicated by KAC. It is possible that the registers do not reflect the true contact, as KAC informed the Tribunal that she does not sign any register on visiting AWP. The evidence before the Tribunal suggests that KAC has shown very little regard to AWP’s plight in the financial crisis in which he has been placed due to the transfer of valuable real estate to her. In our view KAC is not a suitable person to be appointed to carry out that role.
The Tribunal finds that AWP continues to be a person for whom a guardianship order may be made and that he needs a guardian appointed with the functions limited to deciding accommodation and treatment. The Tribunal continues the appointment with the Public Advocate for a period of five years with the usual delegation to an employee or officer of the Office of the Public Advocate.

Need for an administrator and ongoing investigative function

The Public Trustee provided the Tribunal with a detailed report relating to the affairs of AWP and what action had been taken by him since appointment as administrator.
At the time of this hearing AWP was not in receipt of a Centrelink pension as this had been cancelled due to having gifted the asset of the house at Mullaloo. Under social security legislation, the home owned by an age pensioner is not taken into account as an asset, but upon gifting that asset to another, for a period of time, the value of the asset gifted is taken into account. As a result of the transaction which was registered on 10 January 2008, AWP was not eligible for an age pension due to the assets test. AWP’s income comprised a pension received from the United States of America (USA) which varied with the exchange rate but at the time of the hearing left a shortfall in his accommodation fees being met.
Enquiries had continued with regard to assets in the USA and in relation to various share holdings and bank accounts and the Public Trustee reported the progress of those enquiries but the investigation had not been concluded as at the date of the hearing. This was largely due to the lack of cooperation from REC and KAC in providing information.
The Public Trustee recommended that the appointment as plenary administrator continue.
It is clear to the Tribunal that AWP does not have the capacity to undertake the management of his own financial affairs and would be unable himself to conclude the current investigation. The Tribunal accepts that the previous administration orders should continue, save for the order in relation to the Property as that is being dealt with within this hearing. The order will be for five years.

This hearing in relation to MAP

Capacity

The Tribunal had a number of reports in relation to the capacity of MAP to make reasonable decisions with regard to both her lifestyle issues and her financial affairs as follows:
a)A report by Dr C, general practitioner, dated 26 November 2008 in which he stated that MAP does not have any impairment of her cognitive function. He continued that as far as he had been in contact with her since she had been at [M C] awaiting placement, she appears to be capable of independent living. Dr C continued that he would not be able to predict the future prognosis of her mental capacity but at the present he felt she is capable of independent living. Dr C went on to confirm that MAP is capable of making reasonable decisions at that time about her personal health care and her living situation, but he was not sure about her financial affairs. He continued that as far as shopping etc she will be capable of daily shopping and paying shopping bills. When it comes to paying her phone bills, electricity bills she appears to be capable and she insists that she is capable of doing all that. She is capable of making a valid enduring power of attorney. Dr C said that MAP could make a significant contribution to a hearing as she wants to put her side of the case to the Tribunal so that she can live at home. He supported her case. MAP asked him to enclose a note signed by her daughter and granddaughter regarding permission to reside at the Property. This typed note was signed by KAC and REC dated 10 August 2008.
(b)A report by Dr F, Consultant Psychiatrist, dated 23 February 2009 which was prepared in response to a referral by MAP’s guardian. Dr F assessed MAP both on 24 December 2008 and on 13 January 2009. MAP had a further assessment with a clinical psychologist. In summary, Dr F found that MAP presents with a history of delusional beliefs and mild cognitive impairment which has been associated with some functional impairment and concerns regarding her ability to live independently. Dr F did not find that she was currently delusional but found that she does maintain a number of persecutory beliefs regarding her past and present treatment. He suspected that this was not dramatically out of keeping with her premorbid personality and is unlikely to change much in the future. Dr F confirmed that MAP's cognitive functioning had not deteriorated since her Selby Clinic assessment and may have also improved a little. His assessment, and that of the clinical psychologist and the occupational therapist, was that she most likely has the capacity to decide where she should live. A concern was that she seemed a little reliant on her family and he was not sure that this support would be available. This was complicated by her antagonistic views towards her daughter which are unlikely to change in the foreseeable future. Dr F suggested a trial of independent living with community supports, but said it is difficult to be absolutely certain whether guardianship is necessary in the absence of this trial. Dr F continued that it may be worthwhile continuing with the guardianship until such time as she proves she can live independently.
(c)A report by Dr D, general practitioner dated 7 August 2009 who had known MAP for about six months and last saw her on the day he wrote the report. He was ambivalent as to whether MAP had an impairment of her cognitive function. He stated that she had previously been assessed as having dementia, executive function impairment and delusions. Currently she has no delusions. She does demonstrate good direction in who should look after her financial affairs. Her Mini Mental State Examination score taken on 7 August 2009 was 29 out of 30. Dr D continued that MAP was capable of making reasonable decisions now in relation to her personal health care and her living situation. He was ambivalent as to decisions concerning her financial affairs but continued that he was 95% certain that she is capable. He commented that it may be worthwhile having further detailed psychological testing of her executive function. This was last done about a year ago and her normal mental state and cognition has much improved since then.
Dr D gave oral evidence at the hearing as requested by the Tribunal and confirmed his written evidence. He did acknowledge that he had not formally considered the capacity of MAP to manage her own finances, but felt that she would be able to reside on her own at home with support such as either in-home support or visiting support. He clarified that he meant that there would need to be some system of having a check on her to ensure that she was okay and had an alarm system so that if there are problems, people can be notified. He also agreed that should she return to her home, there would be a need for an assessment to be undertaken in the short term.
The Tribunal had the benefit of a written report from the Public Advocate prepared by MAP’s delegated guardian, dated 26 August 2009. The delegate went through the various medical reports obtained for the Tribunal in both the 2008 and the 2009 hearings and concluded that it remains unclear whether MAP has the capacity to make the necessary decisions regarding accommodation and treatment.
In his oral evidence before the Tribunal, the delegate confirmed he remained of the view that he was not sure if MAP needed a guardian after referring to the medical evidence which states she has capacity to make those decisions for herself. He reiterated, however, that if she was to return to her home, which was her stated desire, there would have to be some consideration as to the house itself and its suitability. The delegate confirmed that if a guardian were needed, the functions that would be required would be that of deciding accommodation, treatment and the services to which MAP should have access.
The Tribunal had the benefit of observing MAP over the two very long days of hearing. Over this time, MAP vacillated between wanting the property transaction undertaken by her husband and herself to remain in place and wanting it to be reversed so that she could better achieve what she wanted to do. It was her belief that in undertaking the transaction, that KAC would end up with two thirds of the entitlement and REC would retain her one third. When it was put to her by the Tribunal that was not the effect of the transaction she was very upset and demanded to know how the government could have done that to her. Towards the end of the hearing, she then claimed that neither she nor her husband had signed the transfers, that it was a fraud perpetrated on them.
The issue as to how it was that MAP was taken to Joondalup Hospital and then on to the Selby Clinic where she was held as an involuntary patient continued to cause MAP some distress. She again disputed evidence about the alleged events. She appeared to vacillate between the following versions:
a)Her home had been broken into and burgled with her purse having been stolen and that created the need to have the gun ready for use when the burglar returned, as she believed this would happen as she had found the purse in the backyard with its contents strewn and that this had been a signal to her that the burglar would be returning; and alternatively
b)She had lost her purse on a bus caused by the bus driver putting on the brakes suddenly and her trolley and its contents were scattered. When she arrived home, found that the purse was missing, took the next bus into Joondalup station and the lady on duty phoned the bus and ascertained that the driver had not seen the purse. The lady on duty gave her $5 out of her own purse to get home. Two weeks went by and then the Mirrabooka police mailed her a few of her ID cards which had been turned into them. MAP denied ever reporting it stolen.
Both of these stories were elaborate in their construction and each stated with conviction at different times.
As each of the doctors consulted found, MAP states her version of events with such conviction it is difficult to not accept it as the truth. However, the Tribunal had the benefit of seeing differing stories over the same incidents over the two days of hearing sufficiently that the Tribunal is able to conclude despite the medical evidence that MAP does have an impairment of her cognition sufficiently so that for her to be properly protected she requires an alternative decision maker.
In reaching this view, the Tribunal is influenced by MAP's apparent confusion concerning the events surrounding the transfer of the Property which we deal with below. During the hearing, she was inclined to want to place all her trust in KAC. We formed the view that KAC was hopelessly torn between her own self interest, MAP's expressed wishes, and the conflictual relationship between MAP and her daughter REC. We formed the strong view that MAP's decisionmaking in relation to her personal wellbeing is overborne by her relationships to the point that she is in need of an alternate decisionmaker who will act in her best interests. As will be seen later in these reasons, MAP's dealings with the Property which led to the transfer of her and AWP's interest was contrary to the interests of both herself and AWP, and demonstrated a need for oversight in her decisionmaking.
The Tribunal found that MAP is a person in need of oversight, care or control in the interests of her own health and safety. Further that she is unable by reason of a mental disability to make reasonable judgments in relation to her financial affairs.

Need for a guardian

As set out above, the advice of the Public Advocate is that, should the Tribunal decide that MAP does need a guardian to be appointed, then the functions that should be included in an order are those of deciding accommodation, treatment and services. The Tribunal made these findings and appointed a limited guardian for a period of one year.

Need for an administrator

It was clear to the Tribunal by the conclusion of the hearing, that MAP is a person who needs an administrator to continue to manage her financial affairs and to continue the inquiries commenced to ascertain if there has been any financial exploitation. The Tribunal made these findings and appointed a plenary administrator for a further period of one year.

Section 82 applications

Section 82(1) of the GA Act provides:
Transactions may be set aside
(1)Subject to subsection (2), where a person within 2 months before being declared under section 64(1) to be a person in need of an administrator of his estate has entered into a disposition of any property (including a gift) or taken on lease, mortgaged, charged, or purchased any property, or agreed to do so, the State Administrative Tribunal may, on the application of the administrator of that person’s estate and on notice to such persons as the Tribunal may direct, set aside the transaction and make such consequential orders as it thinks fit for the purpose of adjusting the position or rights of the parties and other persons.
The Public Trustee, in his capacity as administrator for each of MAP and AWP seeks to set aside the transfer of the property which was executed on 18 December 2007 and registered on 20 January 2008.
The Public Trustee was appointed plenary administrator of the estate of MAP on 15 January 2008, so that the execution of the transfer on 18 December 2007 falls clearly within the period of two months prior to the declaration of incapacity under s 64(1) of the GA Act which led to the appointment of the plenary administrator. The appointment of the Public Trustee as administrator of AWP did not, however, occur until 22 February 2008, a few days more than two months after the date of the transfer. Although the transaction was registered at Landgate within the two month period prior to the declaration under s 64(1) in relation to AWP, that would not be sufficient to attract the remedy under s 82 at the instance of AWP. That is because the jurisdiction to set aside the transaction arises where the person concerned 'has entered into a disposition of any property' within two months before being declared incapable. AWP and MAP were, however, joint tenants, and the transaction embodied in the transfer dated 18 December 2007 was a single transaction involving their joint interest in the Property. The capacity of the Tribunal, to set aside the transaction on the application of MAP's administrator is sufficient to set aside the whole transaction. Indeed, if the Tribunal were to conclude that MAP's disposition should be set aside, it would not be desirable, even if it were possible, to limit the consequential orders only to a retransfer of her undivided one third share as joint tenant. To do so would create new interests in the Property never contemplated by any of those involved in the transaction.

Background to the December 2007 transfer

MAP and AWP purchased the Property in 1993. They placed it in to their own names and the names of REC and RP, all as joint tenants. MAP explained at the hearing that that was done in order to avoid 'inheritance tax' on the death of AWP and MAP.
In October 1995, a transfer of RP's share in the property to AWP, MAP and REC by way of gift was registered against the title. It is apparent that RP has asserted that that transaction occurred without his knowledge and consent and at the time of the hearing, and he had lodged a caveat against the Property to protect the interest which he claims in it. Other than to note that RP wrote to the Tribunal advising that, were the Tribunal to set aside the December 2007 transaction in relation to the land, he would uplift his caveat to enable any consequential orders to take effect, the dispute in relation to the 1995 transfer is not a matter which the Tribunal needs to consider further.
Some time in 2006, the relationship between MAP and her daughter REC seriously deteriorated. It is clear that, at least from that time onwards, but possibly before, MAP, and probably AWP, decided that they wanted KAC to inherit the bulk of their estate, including the Property.
In November 2006, MAP wrote to REC's husband suggesting that REC should transfer her interest in the property to KAC. As a result of concern as to 'what my mother would do in her attempts to remove my name from the title of the Property', REC lodged a caveat over the property.
AWP, MAP and KAC subsequently executed a transfer of land form which was dated 7 October 2007 (the first transfer). The first transfer was witnessed by KAC's then boyfriend, JG. The first transfer purported to transfer the fee simple in the property from AWP and MAP to KAC. The document was completed in part by MAP and in part by KAC.
KAC then attended the office of Landgate to attempt to register the transfer. Registration could not be effected because the stamp duty had not been paid on the transfer, REC's caveat needed first to be removed, and the description of the interest being transferred was incorrect.
Shortly afterwards, a second transfer form was completed and executed by AWP, MAP and KAC incorporating the description of the estate or interest being transferred in a manner suggested by someone at Landgate (the second transfer). The second transfer which was dated 21 October 2007 was presented to the Office of State Revenue for assessment, and was assessed for duty on 26 November 2007. The duty payable was $51,301.80. KAC arranged for payment of that duty using funds provided by MAP and AWP from their savings.
Attempts to register the second transfer were also unsuccessful. The problem this time was that REC's interest in the land had been registered in her maiden name, but the transfer had been prepared using her married name, and omitting her middle name.
Discussions then followed between KAC, REC and her husband and a person at Landgate's office about the capacity to obtain a credit for the stamp duty that had been paid for the purposes of a fresh transfer.
It was subsequent to those discussions that the transfer which ultimately become registered, which was dated 18 December 2007 (the third transfer) came to be prepared and executed. An additional $9,035 in stamp duty was assessed as payable on the third transfer. That duty was paid on 10 January 2008.
In the meantime, as noted earlier, KAC had signed an application which had been lodged with the Tribunal seeking appointment as guardian and administrator in relation to both MAP and AWP.
The application in relation to AWP recited that he had been diagnosed with dementia, that he 'appears to have minimal short term memory and minimal insight and consequently little or no capacity to manage his affairs'. It describes him as 'disorientated' and asserted that he did not appear 'to have capacity to look after his own health and safety or to make reasonable judgments in respect of matters relating to his person'. The explanation for the application continued:
It is our view that (AWP) is in the need [sic] protection as his faculties appear impaired to the extent his financial affairs and welfare is in jeopardy and can be influenced by improvident or ill considered personal decisions or action or by unscrupulous or ill advised influence of others who might deliberately or inadvertently exploit his vulnerability.
The application in relation to MAP recites that a psychiatric registrar at Joondalup Mental Health Campus had stated that '[MAP] has alzheimer's', and that that was also the opinion of a police officer who had attended at MAP's alleged burglary. It recited the various allegations of inappropriate behaviour which are referred to earlier in these reasons and which were acknowledged by MAP at the first hearing of the application on 15 January 2008. The application asserted that MAP 'does not have the capacity to look after her own health and safety or to make reasonable judgments and refuses the care of all support agencies'. The need for an administrator was given as 'her inability to make responsible decisions with regard to any major aspect of her life'.
KAC signed a declaration at the end of each of the application forms. That declaration was in the following terms:
I have read this completed application and to the best of my knowledge all the information provided is true and correct, is not misleading and no information relevant to the application and SAT has been omitted.
KAC was asked why she had made that declaration if, as she contended at hearing, both MAP and AWP had the capacity to sign the transfer which she presented to them two weeks later. Her response was to say that the application had been prepared by her mother, REC, who asked her to sign the document. She said that she did not understand the nature of guardianship and administration orders, and she signed the document without reading it simply because her mother asked her to do so.
KAC gave evidence that the contact details on the application form were not her phone numbers, and the email address was that of her mother. That would certainly appear to be the case. We accept, therefore, that the applications for guardianship and administration of AWP and MAP were prepared by REC. Given her participation in the first hearing of both applications on 15 January 2008, we do not accept that KAC was unaware of the nature of the proceeding nor of the assertions being made as to the capacity of each of AWP and MAP. When confronted with documents or assertions contrary to her interests, KAC was inclined to respond that she could not remember events, was confused about events, or was simply doing what someone else asked her. We do not find those responses credible.
REC elected not to attend the hearing 'due to work commitments', and provided a written submission instead. In that submission, she asserted that KAC had no reason to doubt the capacity of AWP and MAP at the time that the third transfer was executed. The submission fails to address the fact that she (REC) drafted the applications for the appointment of a guardian as administrator made on 4 December 2007, and made the assertions on capacity that we have set out above. Having failed to attend the hearing, notwithstanding the lengthy notice given to her of the hearing date, and thus having avoided any opportunity for the Tribunal or the representatives of the Public Trustee to ask questions of her, the assertion in her submissions as to AWP and MAP's capacity must be rejected.

The consequences of the transfer

The consequences of AWP and MAP having transferred their interest in the Property by way of gift were considered by a senior trust manager from the Office of the Public Trustee and by an independent financial planner engaged by solicitors for KAC. While they differed somewhat in their analysis of the consequences of the transfer, their conclusion in substance, were the same. It was clear from both of their reports that both AWP and MAP would be better off had they not transferred the property by way of gift.
The effect of the transfer was to deprive both AWP and MAP of an entitlement to an Australian pension. The consequence of that was that they both had insufficient income to meet accommodation costs if they were to remain in hostel accommodation and otherwise to meet their living expenses. That would not have been the case had the transfer not been effected.
That position was accepted by KAC at the hearing. MAP appeared to also understand the consequences of her action but indicated that were she able to move back to live in the Property, pursuant to an agreement which she said she had with KAC and REC, she considered that she would have been able to get by on the small United States (US) pension which she receives.
It is clear on the evidence and there was no serious issue at the hearing, that the transfer of the Property by way of gift resulted in a significant financial disadvantage to both AWP and MAP, and created a serious financial difficulty for them in meeting the cost of their daily needs.

MAP's understanding of the third transfer

It is apparent that what was sought to be achieved by the first and second transfers was a transfer of the whole of the interests of AWP and MAP in the Property to KAC. The result of that transaction would be that KAC would have become the owner of two thirds of the fee simple in the Property. It is not clear whether consideration was given to whether or not that interest was intended to be held as tenant in common or as a joint tenant with REC.
The third transfer achieved a different result. Unlike the first and second transfers, REC's name did not appear as a transferor or transferee in the first and second transfers, but appeared as both in the third transfer. It resulted in an increase in the interest of REC as one of two, rather than three joint tenants.
On the second day of the hearing, it became clear that MAP had no understanding of that outcome. When the outcome was explained to her she said at T: [69], [22.09.09]:
MAP:That never happened. What was two-thirds, mine and my husband's, both went to Kristin. There was no two-halves. There was two-thirds and one-third. Her share was one-third.
JC:That's what you always understood this transaction to be?
MAP:Yes, absolutely. It always was.
She later said: [T: [71], [22.09.09]
Well, sir, I absolutely will not agree - I won't sign any papers at all. I want to invalidate the whole thing and start again, and we will again begin at the beginning with my husband and I transferring our two-thirds to the grad-daughter, because I will not accept this. This is not right and certainly no government can do this to us.
MAP said that she wanted 'to invalidate the entire proceedings and start again'.
A little later in the hearing, [T: [73], [22.09.09] MAP said:
This bit is clearly fraudulent, in putting this in two parts instead of three. That is simple fraud.
After viewing the third transfer, MAP said that the signatures purportedly of herself and AWP were not her signature, nor AWP's signature. She considered that the signatures were, in each case, copies of their writing. She also noted that AWP had written in full his middle name and said that he would never do that unless she instructed him. Since they were living in different places and having no contact with each other on 18 December 2007, she considered he would not have signed in that form. The seriousness of those assertions is obvious.

Should the third transfer be set aside

The Tribunal's power to set aside the transaction reflected in the third transfer is clearly open. The transfer appears to have been executed on 18 December 2007. The declaration of incapacity in relation to MAP was made on 15 January 2008. The execution of the transfer document thus falls well within the two month period stipulated by s 82 of the GA Act.
As noted above, the transfer of the Property by way of gift had a significant financial detriment for MAP in that she lost her entitlement to an Australian pension, and had insufficient funds to meet accommodation costs were she to remain in hostel accommodation.
It is likely that MAP did not, in fact, understand the effect of the third transfer. Certainly her statements made during the hearing were unequivocal as to her misunderstanding as to what had occurred. Her immediate response on learning of the nature of the consequence was to express a wish that the transaction should be set aside. Against the background history of attempts to transfer AWP and MAP's interest in the property to KAC, and given her poor relationship with REC, we consider it quite unlikely that she would have appreciated the effect of the third transfer.
The evidence in January 2008 in relation to AWP's lack of capacity was strong. We are satisfied that it is quite unlikely that, if he executed the transfer at all, he was capable of understanding the significance and effect of the transaction. AWP's financial position is markedly worse for having gifted the Property, and the lack of access to his equity in the Property gives rise to serious problems for him in funding his accommodation placement.
Finally, MAP's assertions at the completion of the hearing that neither she nor AWP signed the transfer raised serious questions as to the validity of the document. It is not necessary for us to make any finding as to whether the signatures of MAP and AWP are their actual signatures, or whether they are forgeries. The assertions to that effect by MAP came very late in the hearing, and no proper opportunity arose to investigate the assertions, and no finding as to whether the signatures are genuine could possibly be made by the Tribunal. However, even absent any such finding, the factors which we have outlined above are sufficient, in our view, to lead to the conclusion that the third transfer should be set aside, and that orders should be made to enable the correction of the title details accordingly. It was for those reasons that the Tribunal ordered the transaction be set and made consequential directions.
I certify that this and the preceding [98] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT