FC

[2016] WASAT 2

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   FC  [2016] WASAT 2

MEMBER:   MS F CHILD (MEMBER)

HEARD:   1 SEPTEMBER 2015 AND 26 NOVEMBER 2015

DELIVERED          :   26 NOVEMBER 2015

PUBLISHED           :  13 JANUARY 2016

FILE NO/S:   GAA 2869 of 2015

GAA 3149 of 2015
GAA 3862 of 2015

BETWEEN             :FC

Represented Person

Catchwords:

Guardianship and administration ­ Applications for appointment of an administrator and a guardian and for intervention in an enduring power of attorney and an enduring power of guardianship ­ Donor diagnosed with dementia ­ Enduring powers of attorney not effective ­ Need for appointment of administrator of the estate ­ Existing enduring power of guardianship ­ No need for guardianship order ­ Wishes of the donor

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(c), s 40, s 43, s 51, s 51(2)(g), s 64, s 65, s 68(3), s 68(3)(a), s 68(3)(b), s 71(5), s 75, s 102, s 104, s 104(1), s 104(2)(b), s 108, s 109, s 109(1)(c), s 109(3), s 110(N), Sch 3, cl 4

Result:

Administrator appointed 
Guardianship application dismissed
Applications for intervention dismissed

Summary of Tribunal's decision:

Adult children of an elderly nursing home resident with a diagnosis of dementia sought guardianship and administration orders for her to provide for joint decision­making between her eldest son and youngest daughter.  The Tribunal decided that an administration order was needed as documents executed by the woman in 2002 and in 2015 had not effectively created enduring powers of attorney.

The Tribunal appointed the woman's youngest daughter as the administrator of her estate.  This appointment was consistent with the choice made by the woman in an enduring power of attorney executed in 2002 when there was no question of her capacity to do so and her more recently expressed wishes, at the hearings before the Tribunal, to the Public Advocate's investigator and to the Director of Nursing of the facility in which the woman lived.

The Tribunal determined that the existing enduring power of guardianship (EPG) was a less restrictive alternative to the making of a guardianship order.  The EPG appointed the youngest daughter of the woman as sole enduring guardian and the Tribunal found this was consistent with the express wishes of the woman regarding her personal decision­making.

The applications to intervene were dismissed as the orders proposed to be made were not necessary or consistent with the wishes of the woman.

Category:    B

Representation:

Counsel:

Represented Person       :     N/A

Solicitors:

Represented Person       :     N/A

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

CH [2003] WAGAB1

EW [2010] WASAT 91

Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423

Re

C [2012] WASAT 50

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. FC is an 88­year­old woman, who lives in an aged care facility.  She has been diagnosed with dementia.  FC has seven adult children.  Some of the children live in the town in which FC lives and others live elsewhere in Western Australia or in other states.

2. The following applications were filed with the Tribunal by children of FC.

   1)EC (son) filed an application pursuant to s 109(1)(c) of the Guardianship and Administration Act 1990 (WA) (GA Act) on 1 July 2015. The application sought orders for 'joint enduring power of attorney' and 'joint enduring power of guardianship' proposing the appointment of MR (the youngest daughter of FC and the attorney appointed under an enduring power of attorney (EPA)) made by FC in 2002 (2002 EPA) and the applicant, EC.

   2)LR and KR (daughters of FC) filed an application on 15 July 2015 seeking the appointment of a guardian for FC.  In part the application proposed that there should be an administrator (of the estate of FC) with a 'minimum of two joint [appointees] to share information with family and [FC]'.

3. Following the application made by EC, case management orders were made including listing the matter for hearing on 1 September 2015 and directing MR to file a copy of the EPA referred to in the application and ordering pursuant to s 109(3) of the GA Act that the attorney not act under the EPA other than to manage the day­to­day needs of FC until further order of the Tribunal.

4. Hearings were conducted on 1 September 2015 and 26 November 2015.

5. The hearing of the applications was part heard at the first hearing, orders were made adjourning the applications and making orders for the management of the matters to final hearing including the following orders:

   1)The application by EC pursuant to s 109(1)(c) of the GA Act (for revocation of the 2002 EPA) was accepted as an application pursuant to s 110(N) of the GA Act for revocation or variation of the EPG.

   2)The application filed by LK and KR for the appointment of an administrator was accepted as an application for the appointment of both a guardian and an administrator of the estate of FC.

   3)Pursuant to s 65 of the GA Act an order was made authorising MR to exercise the powers of a plenary administrator until the applications were finally determined by the Tribunal.

   4)Referring the applications for investigation to the Public Advocate's office.

   5)Seeking the attendance at the next hearing of the general practitioner and the Director of Nursing (DON) of the facility in which FC lived.

6. Final orders determining the applications were made on 26 November 2015 and the Tribunal advised that reasons for the decisions made would be published later.  These are the reasons for the decisions made.

7. As with all decisions made under the GA Act, information which would identify the represented person, witnesses or other parties has been removed.

Evidence and material before the Tribunal

1. The Tribunal heard oral evidence from FC herself, from all of the children of FC, from the DON who attended the second hearing and from the representative of the Public Advocate. All of FC's children attended both hearings, either in person, by video conference or by telephone.

2. The general practitioner was unable to attend the final hearing for health reasons.

3. In addition to the applications filed by the applicants, the Tribunal received the following material:

   1)Submissions by the applicants.

   2)Submissions from MR.

   3)A report from the DON with attached Abbreviated Mental Test (AMT).  The DON reports that FC was admitted to the aged care facility in which she now lives, as a high care permanent resident on 24 April 2015 and requires assistance with all her activities of daily living.  FC's cognitive function is said to be impaired and reference is made to the AMT score which according to the DON shows 'marked cognitive impairment'.  The report notes that FC has seven children who all have contact with their mother; local family visit regularly.  The report notes that the 'family [are] in conflict with each other in regards to what is best for [FC] - Both/all only have the best intentions for FC'; 'cognitive function severely impaired'; 'she does not have capacity to make decisions'; 'her family (children) do not understand this and believe she is capable of making decisions'.

   4)A report dated 24 June 2015 from Dr NM, a general practitioner, who reports she has known FC for eight years.  Dr NM reports FC has a diagnosis of dementia and her impairment was recognised one year prior and is a progressive condition.  In the doctor's opinion, FC is incapable of making decisions in relation to her personal health care, her living situation and her financial affairs.  Dr NM indicates that FC is incapable of giving an EPA.

   5)The Clifton Assessment Procedure - Elderly from [name suppressed] hospital completed in reference to FC reports she has 'marked impairment and high dependency'.

   6)A copy of an EPA dated 28 November 2002 (2002 EPA) made by FC which appoints MR as attorney was filed with the Tribunal on 23 July 2015.

   7)A copy of an enduring power of guardianship (EPG) dated 2 April 2015 made by FC and naming the sole enduring guardian as MR was also filed on 23 July 2015.

   8)A further EPA was referred to in correspondence and submissions filed but a copy was not filed with the Tribunal.  The EPA is understood to have been made by FC on 8 May 2015 and appointed EC and MR jointly and severally as attorneys (the 2015 EPA).

   9)A letter dated 17 June 2015 signed by FC asking that copies of her will be distributed to all of her children.

   10)Copies of correspondence between family members.

   11)A copy of a will of FC dated 27 May 1993.

   12)A report from the Public Advocate's investigator, following referral for investigation after the first hearing.  The report addresses the matters referred by the Tribunal and includes a summary of the material filed with the Tribunal, a chronology of events leading up to the applications being made to the Tribunal and records of the views of FC and of a number of family members and the DON regarding the applications.

   13)A report from the Public Trustee dated 15 September 2015 enclosing documents submitted by MR to the Public Trustee following MR's appointment by the Tribunal pursuant to s 65 of the GA Act to manage the affairs of FC order on an interim basis.

Legislation

Principles to be observed

1. In all proceedings commenced under the GA Act the Tribunal must observe the principles set out in s 4 of the GA Act:

   4.Principles stated

   (1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.

   (2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.

   (3)        Every person shall be presumed to be capable of ­ 

   (a)looking after his own health and safety;

   (b)making reasonable judgments in respect of matters relating to his person;

   (c)managing his own affairs; and

   (d)making reasonable judgments in respect of matters relating to his estate,

   until the contrary is proved to the satisfaction of the State Administrative Tribunal.

   (4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person’s freedom of decision and action.

   (5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.

   (6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.

   (7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.

2. To appoint a guardian, the Tribunal must be satisfied that the person for whom the application is made is unable to look after her own health and safety, unable to make reasonable judgments about her person, or is in need of oversight and care in the interests of her own health and safety and is in need of a guardian (s 43 of the GA Act).

3. To appoint an administrator of an estate, the Tribunal must be satisfied that the person for whom the application is made is unable by reason of a mental disability of making reasonable judgments about any or all of her estate and is in need of an administrator of her estate (s 64 of the GA Act).

4. To intervene in an EPA pursuant to s 109 or in an EPG pursuant to s 110N of the GA Act the Tribunal must be satisfied that the applicant has a proper interest in the matter and that it is appropriate to do so.

5. Pursuant to s 110N of the GA Act the Tribunal may vary or revoke an EPG.

What the Tribunal must decide

1)Is FC a person for whom a guardianship order may be made?

2)Is FC a person for whom an administration order may be made?

3)If so, does she need these orders or are there less restrictive alternatives to meet her needs (s 4(2)(c))?

1. In respect of the applications to intervene in an EPA and EPG:

   1)Does the applicant have a proper interest in making the application, if so, should the Tribunal intervene in the way proposed to vary the EPA to create an appointment of MR and EC jointly?

   2)Do the applicants have a proper interest in bringing the application for intervention in the EPG, if so, should the Tribunal intervene in the way proposed to vary the EPG to create an appointment of MR and EC jointly?

Capacity

1. Despite the views of LK expressed in both hearings (for example, T:47; 26.11.15) and in written submissions that  FC is 'sharp' and able to reason and experiences only short­term memory loss, the Tribunal is satisfied on the written reports of Dr NM and the DON and the presentation of FC at the hearings, that FC experiences, by reason of her dementia, significant cognitive impairment which means she is reliant on others for decision­making in the spheres of her personal health care, her living situation and her financial affairs.

2. In her oral evidence the DON reported memory problems experienced by FC and her requirement for redirection and prompting.

3. The Tribunal is satisfied that by reason of her dementia and associated short­term memory loss and cognitive impairment FC is unable to make reasonable judgments about her estate.

4. The Tribunal is also satisfied based on the report of Dr NM and the DON that FC is unable to look after her own health and safety, unable to make reasonable judgments about her person and is in need of oversight and care in the interests of her own health and safety.

5. The Tribunal finds that FC is a person for whom both a guardian and an administrator may be appointed.

Need for an administration order

1. The 2002 EPA by which FC purportedly appointed MR as sole attorney does not meet the requirements of s 104 of the GA Act which requires that an EPA be in the form, or substantially in the form, of Form 1 of Sch 3 of the GA Act (s 104(1)).

2. Form 1 of Sch 3 requires that an EPA is signed as a deed by the donor and there be an election at cl 4 as to when the EPA is in force. FC has not signed the 2002 EPA and there was no election at cl 4.

3. The failure to make the election has been found to be a failure to comply with the formality requirements (see CH [2003] WAGAB1). As the 2002 EPA is not signed by FC and there is no election at cl 4, the 2002 EPA cannot be said to comply with the formalities required under the GA Act to create an EPA.

4. The 2015 EPA was, according to EC's evidence, prepared by solicitors on his instructions, and later signed by FC.  It reportedly appoints EC and MR jointly and severally as attorneys.  It was reportedly signed by FC and accepted by EC however MR refused to sign the acceptance.

5. Regarding the 2015 EPA; in her evidence before the Tribunal in the second hearing, the DON said 'family members took [FC] out of the home and took her to a solicitor to have paperwork signed'.  The DON went on to say that 'when [FC] came back she spoke to me because she didn't know what she had signed' (T:40; 26.11.15).  The DON said FC had said she thought she was going out for a coffee.  The DON said that she received a letter from solicitors about three weeks later explaining that there had been a change of power of attorney.  She had then tried to contact the solicitors because she did not believe that FC was able to make that decision.  The DON says that she then suggested to EC that applications be made to the Tribunal.

6. The Public Advocate's representative raised the question as to whether the 2015 EPA complied with formality requirements and therefore could be operated by EC alone as the appointments made were as joint and several attorneys.

7. In the judgment of the Tribunal the creation of the 2015 EPA has not been effective.

8. Sections 102 and 104 of the GA Act define and codify the requirements for the creation of an EPA under the GA Act.

9. Pursuant to s 102 of the GA Act a donee includes two persons appointed, whether jointly or severally, to act under a power of attorney.

10. Pursuant to s 104(2)(b) of the GA Act - an instrument is not effective to create an EPA unless the instrument has endorsed on it or annexed to it an acceptance in the form or substantially in the form, of Form 2 in Sch 3 executed by the person or persons appointed to be the donee of the power.

11. In the 2015 EPA both EC and MR were appointed to be donees of the power albeit jointly and severally.  As MR did not execute an acceptance in the form required, or at all, the 2015 EPA is not in the form required under the GA Act and is therefore not effective to create an EPA.  If the Tribunal is wrong about this and the 2015 EPA has been created and could be operated by EC, the Tribunal accepts the submission of the Public Advocate's representative that the 2015 EPA should be revoked.

12. The solicitor's letter to EC dated 19 May 2015 regarding the 2015 EPA indicates that the solicitor's opinion that FC did understand the document she was signing which, to quote the letter, 'would enable yourself and [MR] to sign documents on her behalf'.  It is unclear whether it was put to FC that either EC or MR could sign documents under the arrangements being made.  The appointment of EC solely did not appear to be proposed to FC which would be the effect of the 2015 EPA being operated by EC alone.

13. When asked in the hearing the person she would choose if she needed someone to help her make decisions, FC said MR (T:36; 26.11.15).  The DON, when giving evidence about the execution of the EPG, indicated that FC was asked to consider whether she wanted a 'secondary person' to act as enduring guardian together with MR but she said no (T:44; 26.11.15).  This evidence is consistent with the report of FC's views contained in the report of the Public Advocate's investigator.  The investigator reports on an interview conducted with FC prior to the second hearing, in which she nominates MR, unprompted, as the person to make decisions for her (Public Advocate's report page 11).  In these circumstances, if the 2015 EPA were to stand the Tribunal finds that it would not be consistent with the express wishes of FC that MR make decisions for her.

14. Although the 2002 EPA has not met the formalities and therefore cannot operate as an EPA, the Tribunal does accept it as an expression of the wish of FC.  The applicant daughters, KR and LK, both agree that FC did not have any impairment in 2002 when the 2002 EPA was executed.  When asked about FC's memory problems in 2002, KR said 'I certainly wouldn't have thought so, she is very bright, very alert and very sharp'.  When asked if she had concerns about FC's memory or understanding or capacity in 2002, LK said 'not at all' and explained in her view it had only been in the last two years that there had been a problem with FC's memory which had been recognised by MR and by the local doctor but not detected by her (T:56; 26.11.15).

15. The allegations by LK that MR manipulated FC into making the EPA in 2002, or that FC did not know what she was doing, have not been substantiated.

16. MR was appointed under an emergency order (made pursuant to s 65 of the GA Act) on 1 September 2015, to manage FC's affairs and was required to submit a Form A to the Public Trustee setting out the estate to be managed which includes a house property, pension income, and savings in a bank account. In respect of liabilities there are property expenses and FC's fees at the nursing home. Although a relatively simple estate, it does require management and FC herself lacks capacity to manage her affairs herself. She has, it is understood, not managed her day­to­day bill paying for some years.

1. In the absence of an effective EPA or the capacity of FC to now execute an EPA, the Tribunal finds that FC is in need of an administrator of her estate.  Regarding the question of FC's capacity to now execute an EPA, the Tribunal prefers the evidence of the general practitioner given in June 2015 who has known FC for eight years and the evidence of the DON to that of the solicitors who, it is understood, saw FC only once when she signed the 2015 EPA in May 2015.

Who should be appointed administrator ?

1. Much of the antagonism to MR expressed by the applicants is said to relate to the lack of information about the 2002 EPA.  It seems that most, but not all, of the children of FC did not know about the 2002 EPA.  It is submitted by the Public Advocate's investigator that it seems to have been the choice of FC to keep the EPA private.  This is consistent with the description of FC by one of her sons as 'old school' in that 'she did not talk about her finances' (T:69; 26.11.15).

2. It is a relatively common occurrence that the donor of an EPA does not disclose the making of such an instrument.  This lack of information can, in the experience of the Tribunal, lead to family conflict later as has occurred here.  If the son's view about FC's practice of not sharing information about personal matters is accurate, it is more likely than not that the Public Advocate's investigator is correct in his submission that FC did not initiate the letter requesting a copy of her will be copied to all of her children.

3. The allegations of a lack of transparency or sharing of information by MR is said to have been the background to the conflict and the eventual applications to the Tribunal.  It is the case that the applicants were poorly informed about the nature of the authority available under an EPA.  Correspondence initiated by one of the applicants refers to one son being at risk of 'losing his inheritance' which was inaccurate and only served to increase the tension in the family which, as between some family members, is said to have existed from childhood.  If this is the case, and the conflict has been of long standing, it cannot be that FC was not aware of it and yet appears to have maintained her choice of MR solely to manage her affairs.

4. The Tribunal accepts the submission by the Public Advocate's investigator that MR is suitable for appointment as administrator of the estate of FC. When determining whether a person is suitable for appointment as the administrator of an estate, the Tribunal takes into account the factors identified in s 68(3) of the GA Act.

5. The Tribunal accepts the submission that MR has acted in the past on advice and in the best interests of FC.  MR asserts, and family members agree, that she has a continuous close relationship with FC; one family member describing them as 'joined at the hip'.  The Tribunal finds that MR is compatible with FC (s 68(3)(a)).

6. As noted above, the Tribunal finds that MR has been the consistent choice of FC to manage her affairs (s 68(3)(b)).

7. The material submitted by the Public Trustee and noted in the report of the Public Advocate indicates that MR is able to perform the functions of the administrator.

8. Although, as noted above, they are in conflict and various acrimonious allegations have been made by some family members about MR, she was described by LK as 'scrupulously honest' (T:17; 01.09.15).

9. The submission that a joint appointment of EC and MR be made is not accepted.  A joint appointment is not necessary in the determination of the Tribunal.  As noted, EC and MR are in conflict and an appointment of them jointly is not consistent with the requirement that administrators are unanimous as to decision­making (s 75 of the GA Act).

Management of the estate

1. As noted, the estate is a relatively simple one.  An issue which arose in the course of the hearings is in relation to the sale or rental of the house property of FC.

2. There is an obligation on all appointed administrators to act in the best interests of the represented person and this would generally include obtaining a return from her assets.  The general expectation is that properties are not left vacant because of the associated risks and the difficulty with obtaining insurance.  It is common practice that when a person enters residential aged care either their house property is sold and the proceeds of sale invested, or the property is rented out to return a rental income.  If the property of FC is retained it will need to be insured and will require maintenance and there will be property expenses and these costs will need to be met by FC.

3. Some of the conflict prior to the hearing between family members related to MR securing the property which the Tribunal accepts, based on the evidence of the Public Advocate's investigator, she did following advice regarding her obligations as attorney acting under what she believed to be an EPA. On the present information before the Tribunal, if the property is to be untenanted (to enable family members to stay there rent­free to enable them to visit FC) the administrator will need authority from the Tribunal pursuant to s 71(5) of the GA Act to permit what is effectively a gift of a licence to remain in the property without the payment of a fee.

Need for a guardian

1. FC executed an EPG in April 2015.  The DON gave evidence regarding the preparation and execution of that document.  She described going through the document with FC and asking her questions about her choices.  The DON says she was satisfied that FC understood the choice she was making and in particular wished MR to be her sole enduring guardian.  As noted, the evidence of the DON is that FC specifically rejected a joint appointment.

2. The Public Advocate submits that the execution of the EPG in April 2015 predates the advice by the solicitors that FC understood the nature of the 2015 EPA when it was put to her in May 2015.

3. In respect of the test of a person's capacity to execute a document this is well settled.  Under the general law there is no single test for capacity to perform legally valid acts ­ rather, capacity is decided, in relation to each particular piece of business transacted, by reference to whether the person has sufficient mental ability 'to be capable of understanding the general nature of what he is doing by his participation', and concerning any legal instrument 'is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained': Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423http:// at 437­8 per Dixon CJ, Kitto and Taylor JJ.

4. Following this, the capacity to capably create an EPG is understood to be the capacity to understand that the enduring guardian will be empowered, within the terms of the instrument, to make personal decisions for the appointor when the appointor has lost capacity.

5. The Tribunal is satisfied that the DON explained the nature of the EPG to FC.  The DON's evidence regarding the execution of the EPG by FC was credible and persuasive.

6. The principles in the GA Act recognise the presumption that persons are capable of making reasonable judgments about their persons and managing their affairs until the contrary is proved to the satisfaction of the Tribunal.  Given the evidence of the DON regarding both her explanation of the EPG to FC and FC's participation in that discussion, and the reflection in the executed EPG of FC's consistent choice (that MR was to manage her affairs) the Tribunal is not satisfied that the presumption that FC was capable of executing the EPG has been displaced.

7. Although there was previously conflict about the timing of FC's entry into aged care and whether she should live in residential aged care, at home or in Perth, it is said that all family members now agree that the facility in which she now resides is appropriate for her.  It is understood that she is accepted as a permanent resident in that facility.  Allegations made that MR attempted to restrict the contact between some of her siblings and FC were not substantiated in the material or the evidence before the Tribunal.  The DON said in her evidence that she had never been instructed to restrict contact between FC and family members.  The suggested limitation on FC being taken away from the facility to sign legal documents would seem to have been appropriate in the circumstances, if in fact it was ever applied.

8. In this context, the only remaining issues likely to be required to be determined by a guardian are the treatment and care of FC.  The Tribunal accepts that FC would wish that MR make such decisions on her behalf when necessary.  There is no evidence that MR has restricted information regarding FC's health or care matters and indicates to the Tribunal that she would share such information with her siblings.

9. Enduring guardians are subject to the obligations on guardians to act in the best interests of the represented person set out at s 51 of the GA Act which includes the obligation to maintain supportive relationships the represented person has (s 51(2)(g)).

10. The principles in the legislation require the Tribunal not to make orders if there are less restrictive alternatives which meet the needs of the represented person.  The Tribunal is satisfied that the need of FC for decision­making about medical treatment or care is met by the EPG she has executed such that there is no need for the appointment of a guardian for her.

11. Although the Tribunal is satisfied that FC is a person for whom a guardianship order may be made, the Tribunal finds that FC is not in need for a guardian as she has an existing EPG which is a less restrictive alternative to the making of a guardianship order.

Intervention in the EPA and EPG

1. The intervention sought is for revocation or variation of the EPA and EPG.  The variation sought is to make joint appointments of EC together with MR.

2. It has previously been accepted by the Tribunal that a 'proper interest' requires that the person has a real interest, not a frivolous or vexatious or merely prurient interest (EW [2010] WASAT 91 (EW) at [20] ­ [27]).

3. In respect of the EPA, although it is accepted that the applicants are children of FC and have maintained a close relationship with her and are concerned for her welfare, it must be said that on the available evidence FC did not share financial information readily with them.  No allegations are made regarding impropriety on the part of MR in relation to the management of FC's financial affairs.  One sibling, as noted above, refers to her as being scrupulously honest.

4. Although the Tribunal finds that neither EPA met the formality requirements, the jurisdiction of the Tribunal to revoke such instruments was recognised in Re: C[2012] WASAT 50. The Tribunal revokes both the 2002 EPA and the 2015 EPA pursuant to s 108 of the GA Act and so it is not necessary to decide whether the applicant has a proper interest in the matter of the EPA or to vary the EPA as proposed.

5. In respect of the EPG, the proposal from the applicants is that the EPG be varied to make a joint appointment of EC together with MR as enduring guardians.

6. Although the Tribunal accepts that the applicants as children of FC have a proper interest in her welfare as demonstrated by their regular visits and interest, the Tribunal declines to vary the EPG as proposed.

7. The Tribunal finds that it is more likely than not that this is not the wish of FC, based on the evidence of the DON of FC's rejection of that option when it was put to her when the EPG was made.  In any event, it is not likely to be a workable option given the conflict between family members and MR.

Orders

1. For the reasons given, the following orders are made:

GAA 2869 of 2015

The application is dismissed.

GAA 3149 of 2015

On an application for the appointment of an administrator for the represented person, heard before Member F Child on 26 November 2015

The Tribunal declares that the represented person

(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and

(b)is in need of an administrator of her estate,

and the Tribunal orders that:

1.MR [address deleted] is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardian and Administration Act 1990 (WA).

2.The enduring power of attorney dated 8 May 2015 by which the represented person appointed EC and MR to be her attorneys is revoked.

3,The enduring power of attorney dated 28 November 2002 by which the represented person appointed MR to be her attorney is revoked.

4.This order is to be reviewed by 26 November 2020.

GAA 3862 of 2015

The guardianship application is dismissed.

I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS F CHILD, MEMBER