RK [2020] WASAT 53 (28 August 2020)

Guardianship and Administration Act 1990 (WA), s 4, s 17A(1), s 43, s 44

State Administrative Tribunal Act 2004 (WA), s 27(1)

1. Ms AW has applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for the review of a decision made by a single member of the Tribunal on 4 March 2020 (Original Decision) in respect of Mr RK (Review Application).
2. In the Original Decision, the learned Member declared that RK was incapable of looking after his own health and safety; unable to make reasonable judgments in respect of matters relating to his person; in need of oversight, care or control in the interests of his own health and safety; and in need of a guardian. The Member appointed the Office of the Public Advocate (Public Advocate) as the limited guardian for RK, with the functions of deciding where RK is to live; to decide with whom he is to live; to make treatment decisions for him; to determine what contact he should have with others; and to determine the services to which he should have access.
3. RK is married to Ms CM. They have three adult children: Ms AW, Mr LK, and Ms TK.
4. In the Review Application, AW contended that RK has the ability to make his own decisions, so that RK does not need a guardian, that less restrictive decision making options other than the appointment of a guardian should have been more thoroughly explored, and that if a guardianship order is required, she and LK should be appointed joint guardians or, if joint guardianship is not possible, she should be appointed the sole guardian for RK. LK supported the Review Application.
5. By the date of the hearing, none of the parties who appeared sought to contend that RK had the capacity to look after his own health and safety or to make reasonable judgments in respect of matters relating to his person, and there was no dispute that he was in need of oversight, care or control in the interests of his own health and safety. There was also no dispute that RK is in need of a guardian, and that no less restrictive alternative is open, apart from the appointment of a guardian.
6. The dispute on the Review Application thus focused on who should be appointed the guardian or guardians for RK.
7. As we have mentioned, AW and LK each sought appointment as joint guardians or alternatively as sole guardians. CM also sought appointment as RK's guardian. In the course of the hearing, TK also indicated that she was willing to be appointed guardian for her father.
8. At the conclusion of the hearing we determined to set aside the orders made in the Original Decision. We made orders (Orders) in which we declared that RK was incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, in need of oversight, care or control in the interests of his own health and safety, and was in need of a guardian. We appointed CM as his limited guardian, with the following functions: to decide where RK is to live, whether permanently or temporarily; to decide with whom he is to live; to make treatment decisions for RK;[1] and to determine the services to which he should have access. We were not persuaded that the guardian should be given a function of determining with whom RK should have contact, and the extent of that contact. We also ordered that the guardianship order be reviewed by 8 May 2025.
9. At the time of making the Orders we indicated that we would, today, deliver our reasons for making the Orders. These are those reasons.

1. At the outset, it is appropriate for us to say something about the nature of the review we are undertaking. Section 17A(1) of the GA Act permits any party who is aggrieved by a determination made by the Tribunal consisting of one member, to request the President of the Tribunal to arrange for a Full Tribunal to review the determination. Reviews under s 17A of the GA Act come within the Tribunal's review jurisdiction.
2. As the Tribunal is exercising its review jurisdiction, the hearing of the Review Application was conducted as a hearing de novo. Consequently, the hearing was not confined to the matters that were before the Tribunal at first instance but involved the consideration of new material including evidence the Tribunal received in the hearing of the Review Application.[2]
3. The purpose of a review is to produce the correct and preferable decision at the time of the decision on the review.[3]
4. In dealing with proceedings under the GA Act, the Tribunal is required to observe the principles set out in s 4 of the GA Act.
5. The primary concern of the Tribunal is the best interests of any represented person.[4] In considering any matter relating to a represented person, the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the person concerned.[5]
6. In addition, every person is presumed to be capable of, amongst other things, looking after their own health and safety and making reasonable judgments in respect of matters relating to their person, until the contrary is proved to the satisfaction of the Tribunal.[6] That important presumption applies in respect of every application under the GA Act, including the present Review Application.
7. A guardianship order is not to be made if the needs of the proposed represented person could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action.[7] Furthermore, a plenary guardian shall not be appointed if the Tribunal is of the opinion that the appointment of a limited guardian would be sufficient to meet the needs of the proposed represented person.[8] Finally, any order appointing a limited guardian should be in terms that, in the opinion of the Tribunal, impose the least restrictions possible, in the circumstances, on the represented person's freedom of decision and action.[9]

The evidence before the Tribunal on the Review Application

1. RK attended the hearing of the Review Application by telephone. We invited him to tell us his views about the issues arising from the Review Application, and he did so.
2. CM, AW, LK and TK attended the Review Application by telephone. LK and AW's partners also attended. LK and AW, and CM and TK were legally represented.
3. The Tribunal was also assisted by hearing the views of Ms MK, a social worker at a transitional aged care residential facility (Facility), who is presently assisting RK, and by hearing the views of staff of the Public Advocate who have been involved in RK's case in recent weeks, namely Ms RH, Ms BT and Ms AM.
4. We will refer to the evidence given by these persons later in the course of our reasons.
5. Also in evidence before the Tribunal were a number of documents. Most (but not all) of these were documents had been provided to the Tribunal in advance of the hearing before the single member. It is not necessary to refer to all of these individually. It suffices to say that the documentary evidence included:
   • Documents setting out the views of medical practitioners or summarising the diagnosis and/or treatment given to RK in the recent past. In particular, we had regard to:
     • a letter to the Tribunal dated 14 February 2020 from Dr C and Ms W. Dr C has recently been treating RK, and Ms W is a social worker;
     • a medical report and a service provider report provided to the Tribunal by Dr C both dated 13 February 2020;
     • a medical report dated 2 April 2019 from Dr R who saw RK early in 2019;
     • a medical report provided to the Tribunal by Dr G, dated 28 February 2020, and an earlier medical certificate of Dr G dated 12 November 2019; and
     • a discharge summary prepared upon RK's discharge from hospital following a 3 month stay between December 2019 and March 2020;
   • Service provider reports, namely:
     • from Ms MK dated 28 April 2020;
     • from Ms W, dated 14 February 2020; and
     • a copy of a support plan apparently prepared following an ACAT assessment of RK's needs conducted in March 2020
   • A report from the delegate of the Public Advocate, Ms RH, dated 28 April 2020. Ms RH has been performing the role of RK's guardian since March 2020.
   • A written submission made by Eastwood Law, dated 18 February 2020. Eastwood Law represented RK at the hearing before the member on 4 March 2020.
   • A written submission dated 1 May 2020, prepared by Mr Graham, the legal representative of AW and LK.
   • The transcript of the hearing before the Member on 4 March 2020, which sets out the evidence and submissions made by all parties who appeared at that hearing.

1. Before the Tribunal may appoint a guardian, it must be satisfied as to the matters set out in s 43 of the GA Act.
2. The Tribunal must be satisfied that the proposed represented person is over 18 years of age; that he is either incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, or in need of oversight, care or control in the interests of his own health and safety or for the protection of other persons; and that he is in need of a guardian.
3. If those requirements are met, then the Tribunal is required to consider subsidiary questions, such as who should be appointed the guardian.
4. As we have already observed, none of the parties (other than, perhaps, RK) contended that the matters set out in s 43 of the GA Act were not satisfied. It was not entirely clear that RK accepts that his capacity is such that he is unable to make the kinds of decisions referred to in s 43, or that he is in need of a guardian. As the Tribunal must consider, for itself, what is the correct and preferable decision as to whether a guardian should be appointed for RK, as well as who that guardian should be, it is necessary for us to be satisfied that the requirements of s 43 of the GA Act are met, bearing in mind the presumption of capacity in s 4 of the GA Act.
5. We turn, then, to our findings in relation to the matters in s 43 of the GA Act.
6. RK is 77 years of age. As we have mentioned, RK gave evidence at the hearing before us. He was able to make his position known, albeit not entirely clearly. He denied that he had a problem making decisions about his health, but acknowledged that he needs support with practical tasks like cooking and shopping. His view was that with that support he would be able to live at home. He acknowledged that sometimes he had deficiencies with short term memory, but thought that most of the time he did not forget things permanently and is able to recall things within five to ten minutes.
7. We note that the evidence from RK's family was that he was living at home, with support from all of them, until late last year. He was admitted to hospital in December 2019 and had an extended stay of about three months. His cognitive decline appears to have progressed significantly during or around that period.
8. Further, in a certificate dated 12 November 2019, Dr G expressed the view that RK 'does not have significant cognitive impairment or thought disorder that would affect comprehension or ability to consent' to medical procedures. However, we do not place any significant weight on the latter expression of opinion, which was expressed in the form of a certificate rather than a report, and thus was not accompanied by any explanation, did not engage with contrary viewpoints, and preceded RK's most recent stay in hospital.
9. In a report dated 2 April 2019, Dr R indicated that he did not believe that RK had Lewy Body Dementia (which diagnosis had been suggested by others), and thought that the most likely diagnosis for RK's symptoms was Multiple System Atrophy.
10. Although we give weight to Dr R's view, we prefer the opinion of Dr C who treated RK during his stay in hospital late last year and earlier this year. It is the most recent medical opinion by a specialist practitioner in relation to RK's condition.
11. In his report dated 13 February 2020, Dr C indicated that RK has experienced some cognitive deterioration since 2002, but that the most significant decline commenced in early 2018. The precise cause of that cognitive decline is not entirely clear. Dr C's final diagnosis is dementia syndrome with features most suggestive of Lewy Body Dementia, but with a likely overlap with features of Multi Systems Atrophy. Dr C noted that a number of specialist medical practitioners had diagnosed a progressive, untreatable neurodegenerative syndrome with features of Multi Systems Atrophy. Dr C noted, however, that other specialist medical practitioners confirmed a clinical diagnosis as most likely Lewy Body Dementia.
12. The existence of that diagnosis is not, of course, conclusive for the purposes of s 43 of the GA Act. The question is whether RK's cognitive decline, whatever its cause, means that he is incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, or in need of oversight, care or control in the interests of his own health and safety.
13. Dr C expressed the view that RK has 'nil insight or judgment' in relation to his medical condition and his treatment, support and accommodation needs. He stated that RK had 'consistently demonstrated poor insight and judgment [into] his medical condition, diagnosis and prognosis', had 'unrealistic expectations' and has 'been unable to grasp or understand [his diagnosis] or its implications'. Dr C confirmed that RK is incapable, as a result, of making decisions about medical treatment and procedures. He also expressed the view that RK was incapable of making reasonable decisions in relation to his accommodation, and that he 'lacks insight into his mobility and functional dependence, personal care needs and personal risk living alone at home'. Dr C was of the view that RK is unable to make reasonable decisions in relation to services, such as identifying and securing appropriate support services, for the same reasons.
14. Ms MK's report was consistent with the observations made by Dr C. She observed that RK's cognitive skills are variable, as is his compliance and motivation to participate with care interventions by staff. At times he refuses care assistance, and refuses to take prescribed medication. She believes that RK's 'ability to understand and follow the advice of medical professionals is far too variable for him to be able to manage medical treatment decisions reliably in his own best interests'. She observed that he requires assistance with personal care and requires support with decision making about his day to day care as well. She reported that RK 'has accepted and agreed that his care needs are high, but disputed the need for residential aged care in order to meet these needs'.
15. We are satisfied, having regard to the evidence to which we have referred, that the presumption of capacity in s 4 of the GA Act has been displaced.
16. Having regard to the opinions expressed by Dr C and Ms MK, we are satisfied that it is more likely than not that RK is incapable of looking after his own health and safety, that he is unable to make reasonable judgments in respect of matters relating to his person, and that he is in need of oversight, care or control in the interests of his own health and safety, and we so find.
17. While it appeared that RK may not agree that he needs a guardian, the evidence left us in no doubt that that is so.
18. It is clear from the evidence to which we have already referred that RK requires assistance in decision making related to his own health and safety, matters relating to his person, and is need of oversight, care and control in the interests of his own health and safety.
19. In some cases, where a person has those needs, the person may not need a guardian to be appointed, for example because a spouse may be able to make relevant decisions on their behalf, or assist the proposed represented person to make such decisions.
20. In the present case, we have taken account of the fact that RK is married to CM. They have been married for about 42 years. Some of the medical reports by doctors referred to RK and CM as having separated. Perhaps that is because RK and CM have not resided under the same roof since 2008. However, as Ms Kershaw explained at the hearing before the Member,[10] while RK and CM have not lived together in recent years, there is no suggestion that that has occurred because of a formal separation or with a view to a divorce. At the hearing before the Member, CM's counsel described the position as being that they had led a relatively normal married life other than that they live under a different roof. CM's view is that one of the reasons for that arrangement was that RK was inclined to hoard things. But despite not living together for some years, prior to his admission to hospital and later to transitional care, CM would go to RK's house every day, make his meals, and would otherwise speak to him by phone as much as six times per day.[11] CM and RK also continue to share finances, and to jointly own property. There was nothing to suggest that since they commenced living separately they have undertaken a division of their property. Their continued close relationship is confirmed by the fact that in March 2018, RK granted CM an enduring power of attorney (EPA). Further evidence of their ongoing relationship was given by CM in the course of the hearing before us. She reported that during his stay at the Facility where he is currently living, RK had had a fall, and it was CM that he contacted because he was anxious about whether he would need to go to hospital.[12] On the balance of the evidence, CM cannot be regarded as RK's former wife, or as his ex-wife, when considering his family relationships.
21. The evidence we received at the hearing left us in no doubt that the dynamics of this particular family are such that RK needs to have a guardian appointed. That is because it is apparent that in the past disagreement about accommodation and treatment decisions which need to be made for RK have led to paralysis in decision making, which is contrary to his best interests. While it is not necessary for us to determine why that is so, CM observed that:[13]

[T]he normal hierarchy in a family is that the parents, certainly amongst themselves, make their own decisions, and then they - there's an intergenerational boundary of some form, and there has been, in my view, a violation of the intergenerational boundary in our family contributing to many of the problems.

1. TK was sympathetic to that characterisation of the dynamic between her parents and their children. In light of her contact with the family, RH did not dispute that characterisation, indicating that she took it on board.[14] LK accepted that a fair characterisation of his family was that 'the members of [RK's] family ... have strong personalities ... [and] all care deeply for [him] but [they] have strong views about what would be in [his] best interests'. Unfortunately, those strong views do not coincide.
2. That evidence, in the context of other evidence given by each of CM, LK, AW and TK, about the strained relationships in RK's family, leaves us in no doubt that an informal decision making arrangement for RK, in which he may be assisted in decisions by CM, or in which she might make decisions on his behalf as his wife and closest next of kin, would not be workable, and would simply generate further disputes about those decisions, which would not be in RK's best interests.
3. That conclusion is supported by the opinions set out in Dr C's service provider report, and in the joint report of Ms W and Dr C, which noted that family members were not able to reach agreement about any of the options raised with them by medical staff at the hospital concerning RK's discharge to future care, and which resulted in a 'stalemate' and prompted the application for a guardianship order in the first place. The more recent experience of the representatives of the Public Advocate supports the conclusion that there is no indication that such collaborative decision making is possible.
4. RK's view was that he would prefer it if his family could collaborate, guided by the advice of his doctors. However, we are in no doubt that there is a need for a guardian to be appointed, with unambiguous authority to make decisions in RK's best interests relating to specified functions.
5. For the same reasons, and having regard to s 4(4) of the GA Act, we are satisfied that there is no less restrictive means available for the kinds of decisions required to be made in this case than by the appointment of a guardian with those functions. The evidence of the family dynamic, and the history of family disputes (about which we will say more in a moment) concerning aspects of RK's situation, leaves no room for doubt that a guardian is needed because of the risk that informal family arrangements may break down and lead to disputes. It would not be in RK's best interests for that to occur.

1. We turn, next, to consider the question of who should be appointed RK's guardian.
2. As we have mentioned, AW proposed that she and LK should be appointed joint guardians or, failing that, she should be appointed sole guardian for her father. LK proposed that he should be appointed sole guardian, but also supported AW's application for joint guardianship with him.
3. CM proposed that she be appointed sole guardian for RK. CM opposed the appointment of AW and LK. TK supported CM's appointment as RK's guardian, but also indicated that she was willing to be appointed guardian for RK.
4. It appeared that CM, LK, AW and TK were all in agreement that it would be in RK's best interests for a family member to be appointed his guardian, rather than the Public Advocate. While the Public Advocate has been the guardian for RK until now, we note that s 44(5) of the GA Act provides that the Public Advocate shall not be appointed unless there is no other person who is suitable and willing to act.
5. Section 44 sets out criteria for who may be appointed a guardian. We start by considering the requirements of s 44(1).
6. CM, LK, AW and TK are over the age of 18 years. Each of them has consented to appointment as RK's guardian.
7. We do not doubt that each of them loves and care greatly for RK, and that they were sincere in their assurance to the Tribunal that, if appointed guardian, they would act in the best interests of RK. There was no suggestion that any of them would be in a position where their interests conflicted with his interests. We note that their family relationship does not, of itself, place them in a position of conflict.[15] The strained relationships between each of them may give rise to conflicts of interest, or at least a perception thereof, were any of them to be granted authority to determine RK's contact with other members of his family. However, as we explain below, we do not presently consider that there is any need for a contact function to be given to the guardian, so it is not presently necessary to resolve that issue.
8. We endeavoured to ascertain RK's views in relation to who should be appointed his guardian, if one were to be appointed following the Review Application.[16] He did not express a preference for any particular family member to act as his guardian. When asked about his preference, he answered that 'that changes actually' and he also indicated that his preference is for collaboration between the members of his family.
9. We are satisfied that TK would be capable of performing the functions of a guardian. However, as she acknowledged in her evidence, she lives with a medical condition which appears to be both chronic and quite debilitating. That condition, combined with the considerable potential for stress arising from disputes within this family about decisions which may have to be made by the guardian, has caused us to be concerned about whether she would be able to undertake the role of guardian without jeopardising her health. For that reason, we are not persuaded that she is suitable to undertake the role of guardian for RK.
10. We are satisfied that CM, AW and LK would each be capable of performing the functions of a guardian.[17] They are all highly educated, confident in their own abilities and clearly able to act as advocates for RK, have supported him in the past in his daily living, care deeply for him, and are concerned to act in what they see as his best interests.
11. Having regard to the evidence, and to the other considerations in s 44(2) of the GA Act, however, we are not persuaded that AW and LK are suitable to act as RK's guardian. On the other hand, we are satisfied that having regard to those criteria, CM is suitable to act as the guardian for RK. Our reasons for those conclusions are as follows.
12. Turning first to LK and AW, we are not satisfied that each of them is suitable to act as the guardian for RK, essentially for identical reasons.
13. First, s 44(2)(a) requires the Tribunal to consider the desirability of preserving existing relationships within the family of the person in respect of whom the application is made. Both LK and AW have a close relationship with their father. There is nothing to suggest that if either of them were to be appointed guardian, that their relationship with their father would be adversely affected.
14. However, at least at present, their relationships with CM are not close. LK acknowledged that prior to his father's more recent decline in health, he had a 'functioning' relationship with CM. However, he admitted that 'there has been a lot of stresses in the family on a range of issues, and [RK's] health is the topmost of that.'[18] He acknowledged that there were 'a number of issues' that he and CM disagreed on, and he admitted that 'the relationship is very strained at the moment'.[19]
15. AW's relationship with CM, and even her relationship with TK, appear to be under considerable strain at present. She admitted that recently her communications with CM and TK had 'been largely limited to email and text, and I find this has been a much more effective way of communicating, as we're keeping on track, so we're not getting distracted'[20] and that when they engaged in verbal communication, and discussed issues other than RK's interests, 'that's where we have disagreements'.[21]
16. AW did not think that the appointment of her and/or LK as guardians 'would cause any further conflict or anything to that degree'.[22] LK was hopeful that if he and/or AW were appointed guardians, things might be better in the future than they have been in the past.
17. We are unable to share that optimism. The appointment of either LK or AW would mean that RK's children, rather than his wife, would have authority to make decisions of particular significance at this stage of his life, namely decisions about his accommodation, about medical treatment he should receive, and about the services to which he should have access. For that reason, there appears to us to be a real risk that the relationships between LK and CM, and AW and CM, may deteriorate further if LK and/or AW were to be appointed RK's guardians.
18. TK supports her mother's appointment as guardian, and by implication, does not support the appointment of LK and/or AW. Whilst TK has, to date, been able to preserve an ongoing civil relationship with her siblings, we are also concerned that the appointment of LK and/or AW as guardians may strain TK's relationship with them.
19. We are, therefore, of the view that the desirability of preserving existing relationships (such as they are) between LK and AW, and CM and TK, weighs against the appointment of LK and AW as RK's guardians.
20. Secondly, if LK and/or AW were to be appointed as RK's guardians, they would need to engage with CM, in her capacity as the donee of the EPA. That is a particularly important consideration at this point in time because decisions about RK's accommodation, which must now urgently be made, will be significantly impacted by his financial position. As we have explained, RK's finances remain closely intertwined with CM's. In his evidence, LK indicated that he saw:[23]

[T]he role of the guardian as being collaborative. I don't think that the role would be to try and force [CM] or, you know, put unreasonable propositions to [CM]. I think ... whoever the guardian is, they have to be acting in the best interests of [RK] but also inherently of [CM] for the exact reasons ... that there is a lot of intertwined financial arrangements. So I think that would be a complex issue, but I am very cognisant of the concerns.

1. AW claimed that if she were the guardian, she would 'work with the administrator or EPA to discuss funding options and availability'[24] and that she did not 'envisage there being any problems working with the EPA to fund [RK's] living requirements'. Given that CM is the donee of the EPA, AW's references to her as 'the EPA' rather than by her name, suggested an underlying hostility to CM performing that role.
2. Given the difficult relationship that LK and AW each have with CM, we are not persuaded that they would be able to successfully engage in a co-operative dialogue concerning the financial arrangements which might need to be made in respect of whatever accommodation arrangements LK and AW decided were in their father's best interests.
3. Accordingly, we are of the opinion that neither LK nor AW is suitable to act as RK's guardian.[25]
4. We turn, next, to explain why we considered that CM is suitable to act as RK's guardian.
5. First, CM is RK's wife, and his closest next of kin. They have been married for 42 years. As already explained, their marriage has been somewhat unconventional, in the sense that they have not lived together for some years. However, the evidence to which we referred at [39] supports the conclusion that CM and RK continue to have a close relationship as a married couple. This compatibility with RK supports the conclusion that CM is suitable for appointment.[26]
6. Secondly, CM is the donee of the EPA. That RK granted CM that authority in 2018 is a clear, and relatively recent, expression of his wish that she should act on his behalf, and his confidence that she will act in his best interests (albeit in respect of matters relating to his estate, as opposed to his person).[27]
7. Thirdly, the fact that CM is the donee of the EPA means that there is no possibility for conflict between RK's guardian and the person with responsibility for administering his estate, in relation to the financial implications of decisions the guardian considers to be in RK's best interests.[28] As we have said, that is an important practical consideration, particularly because the guardian urgently needs to make decisions about where RK is to live in the future.
8. Fourthly, and somewhat paradoxically, the appointment of CM as RK's guardian may serve to preserve the existing relationships (such as they are) between CM and LK and AW.[29] If CM is appointed as RK's guardian, that will eliminate any basis for LK and AW to dispute her authority, at least within the limits of the functions conferred on her as a guardian, to make decisions in RK's best interests. In turn, that conferral of authority may restore some of the 'intergenerational boundaries' about decision making in this family.
9. In the latter respect, one of the representatives of the Public Advocate expressed concern that if a family member were appointed the guardian 'this is going to be just one big power struggle between family members'.[30] Mr Graham, who appeared for LK and AW, disputed that suggestion. In our view, the absence of a clear demarcation of authority for any particular family member to make decisions appears likely to be a particular cause for disagreements. The conferral on CM of the formal authority to act as RK's guardian will, at least, remove that particular source of disputation in this family.

1. In the present case, the appointment of a limited guardian will suffice to meet RK's needs.
2. We were satisfied that RK requires the assistance of a guardian with functions to decide where he is to live, whether permanently or temporarily; with whom he is to live; and to make treatment decisions, and to determine the services to which RK should have access.
3. We were not, however, persuaded that it is necessary for the guardian to have the function of determining with whom RK should have contact. Each of the members of RK's family wishes to continue to have contact with him. Nothing in the evidence suggested that there was a need for the extent of that contact to be determined by a guardian, and the conferral of such authority on one family member may be productive of greater family disputes. If, in future, it appears that there is a need for a guardian with a contact function, an application to appoint a guardian with that function can be made to the Tribunal.

1. The Tribunal is required to nominate a period of time by which a review of the guardianship order must be made.
2. The maximum time allowed under the GA Act is five years.
3. In all of the circumstances, we considered that it would be appropriate to review the order in five years' time, by 8 May 2025, and we made that order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION : RK [2020] WASAT 53 (S)

Guardianship and Administration - Application for legal costs from represented person's estate - Section 16(4) of Guardianship and Administration Act 1990 (WA) - Observations on historical and legislative context, and nature of power to award costs in guardianship and administration matters - Where significant family conflict - Where applicants contend legal representation ultimately resulted in a narrowing of the issues in dispute - Where no question of capacity - Where no complex question of law - Whether size of represented person's estate of significance in question of costs - Whether costs order should be made

Guardianship and Administration Act 1990 (WA), s 4(2), s 16, s 17A(1), s 43, s 44

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 (WA), cl 423

State Administrative Tribunal Act 2004 (WA), s 3, s 87(1), s 87(2)

State Administrative Tribunal Rules 2004 (WA), r 42A

LC and JS [2007] WASAT 127

MB and EM [2014] WASAT 17

Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

RK [2020] WASAT 53

RK [2020] WASAT 99

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

1. On 8 May 2020, we determined an application pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) for the review of a decision made by a single member of the Tribunal on 4 March 2020 (Original Decision) in respect of RK (Review Application). We made orders on the same day (Orders). We published reasons for making the Orders (Reasons).[31] These reasons should be read in conjunction with the Reasons, which set out all of the background to the Review Application, and outline the Orders. In these reasons, we continue to refer to the parties in the same abbreviated terms as we used in the Reasons.
2. AW made the Review Application. She was supported in that Application by her brother, LK. They are two of the three adult children of the represented person, RK.
3. The decision of the Tribunal which was the subject of the Review Application concerned the appointment of a guardian for RK. RK's wife, CM, made an application for the appointment of a guardian for him. She sought appointment as his guardian.[32] The Tribunal at first instance concluded that the statutory requirements for the appointment of a guardian had been met; that RK was in need of a guardian; that limited functions should be given to the guardian; and that the Public Advocate should be appointed RK's guardian, in view of a history of conflict between the members of RK's family: CM, AW, LK, and their sibling, TK.
4. On the Review Application, we concluded that the requirements for the appointment of a guardian for RK were met and that he was in need of a guardian (there being no dispute as to those matters in any event) and appointed CM to be his guardian with limited powers of guardianship.
5. AW and LK (Applicants) were represented in the Review Application by solicitors.
6. Following the hearing of the Review Application, the Applicants made an application for an order that their costs of the Review Application be paid by, or out of the assets of, RK (Costs Application).
7. For the reasons which follow, we are not persuaded that a costs order should be made. The Costs Application will therefore be dismissed.

1. At the outset, we note that the Costs Application was not made at the conclusion of the hearing of the Review Application, when the Orders were made. The fact that the Applicants wished to make the Costs Application was not, in fact, raised until 12 May 2020, in an email sent to the Tribunal (and copied to CM's solicitors) by the solicitors for the Applicants.
2. The hearing of the Review Application was conducted by telephone. In his email of 12 May 2020, counsel for the Applicants advised that due to a technical difficulty, he was unable to advise the Tribunal, before the hearing concluded, that the Applicants wished to make the Costs Application. Neither in response to that email, nor since, have any of the other parties to the Review Application opposed consideration of any application for costs arising from the Review Application.
3. On 15 May 2020, the Tribunal made orders that the Applicants and any Interested Party file any application for costs by 22 May 2020; that any such application be copied to all other Interested Parties; that any submissions in relation to any costs application be filed by 29 May 2020; and that subject to any contrary order, the application for costs be determined on the documents.
4. In view of our conclusion that costs orders should not be made in this case, it is unnecessary to express any view on the question whether the Tribunal's power to make further orders (including costs orders) arising from the Review Application was spent once the Orders were made.[33]
5. In the Costs Application, the Applicants seek an order, pursuant to s 16(4) of the GA Act, for their costs (on the Review Application) to be paid by, or out of the assets of, RK.[34] The amount of the costs sought, based on the professional time for which the Applicants had been, or were to be, charged, as at the date of the Costs Application, was $11,394.24.[35]
6. In summary, the Applicants contend[36] that an award of costs is warranted in this case because:

(a) The conflict between the members of RK's family 'was of such magnitude that, absent legal assistance, it is unlikely the Applicants could have presented a coherent case to the Tribunal in respect of the history and needs of [RK]';

(b) The legal assistance provided by the Applicants' solicitors 'ultimately resulted in issues being narrowed, such that the hearing became focused on the question of suitability [of family members, including the Applicants, for appointment as a guardian or guardians for RK]';

(c) The decision (by the Applicants) to narrow the issues served RK's best interests;

(d) The Applicants and other members of RK's family all opposed the continuing appointment of the Public Advocate as RK's guardian;

(e) The Applicants claimed that it was not until the hearing of the Review Application that the Applicants 'first knew their Mother was putting herself forward as willing and suitable for appointment' and the Applicants did not explicitly oppose her appointment as guardian;

(f) The written material before the Tribunal was relatively complex in relation to the medical evidence regarding RK's capacity; and

(g) On the evidence before the Tribunal, RK's 'estate is relatively large, being at least $1.5m, not taking into account any equitable interests in property in the matrimonial asset pool'.

1. CM was represented by solicitors in the Review Application. CM opposed the Costs Application.
2. CM submitted that the factors that have been relied upon in other cases in support of costs orders in GA Act cases were not present in this case. The thrust of CM's submissions[37] was that she initially sought appointment as guardian for RK; the Public Advocate was appointed RK's limited guardian because of the family conflict; on the Review Application it was open to the Tribunal to appoint any person as guardian following that review; CM was willing to be appointed and was appointed RK's guardian; the Applicants were unsuccessful in obtaining orders in the terms they sought on the Review Application; the size of a represented person's estate should not be taken into account in the exercise of the Tribunal's discretion; and in this case, all parties should bear their own costs of the Review Application.
3. Neither CM nor TK sought costs orders in respect of the Review Application.

The Tribunal's power to make costs orders in respect of applications under the GA Act

1. The starting point for consideration of the Tribunal's power to make costs orders in applications under the GA Act is s 16 of the GA Act. That section is in the following terms:

(a) at the instigation of the State Administrative Tribunal; or

(b) at the instigation of a party and the State Administrative Tribunal considers that the circumstances are exceptional,

the Tribunal may approve payment to him of such amount as it thinks fit in or towards defraying any costs and expenses incurred by him in doing so, and an amount so approved shall be paid from moneys appropriated by Parliament for that purpose.

(4) The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person.

(5) Nothing in this section limits any other power of the State Administrative Tribunal under the State Administrative Tribunal Act 2004.

1. Section 16 in its present form must be construed in its historical, and broader legislative, context. When the Tribunal was established, the GA Act was amended, by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) (Consequential Amendments Act), to confer jurisdiction on the Tribunal, as the decision maker under the GA Act, in place of the Guardianship and Administration Board, and to make consequential amendments reflecting the interaction which would thereafter follow between the GA Act (as the enabling Act[38]) and the State Administrative Tribunal Act 2004 (WA) (SAT Act).
2. Prior to the enactment of the SAT Act, and the amendments made by the Consequential Amendments Act, s 16 of the GA Act provided:

(1) Each party to any proceedings before the Board shall bear his own costs of the proceedings except to the extent that provision is otherwise made under subsection (2), (3) or (4).

(b) at the instigation of a party and the Board considers that the circumstances are exceptional,

the Board may approve payment to him of such amount as it thinks fit in or towards defraying any costs and expenses incurred by him in doing so, and an amount so approved shall be paid from moneys appropriated by Parliament for that purpose.

(3) Where in the opinion of the Board a party to proceedings has behaved unreasonably, vexatiously or frivolously in relation to the proceedings, the Board may order that that party pay such costs as the Board thinks fit to any other party who has not so behaved.

(4) The Board may, if it is satisfied that a party to proceedings has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the Board thinks fit be paid to that party by, or out of the assets of, that person.

(5) If any costs ordered by the Board to be paid by a party are not paid -

(a) the executive officer shall, upon application made by the party entitled to such costs, grant to him a certificate specifying the amount of such costs; and

(b) the party so entitled may recover the costs from the party against whom the order was made as a debt due in a court of competent jurisdiction.

1. The repeal of the former s 16(1), (3) and (5) of the GA Act by the Consequential Amendments Act reflected the fact that the Tribunal had ample powers under the SAT Act to deal with costs orders.[39] That much was expressly reflected in s 16(5) which was inserted into the GA Act by the Consequential Amendments Act. Subsection 16(5) also confirms that the various provisions of the SAT Act which confer power on the Tribunal to make costs orders, operate in conjunction with s 16(4) of the GA Act, in relation to applications for costs in GA Act proceedings.
2. For present purposes, the most significant of the provisions of the SAT Act dealing with costs is s 87(1) of the SAT Act, which provides:

Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

1. Notwithstanding that the former s 16(1) of the GA Act was repealed by the Consequential Amendments Act, it therefore remains the case (by virtue of s 87(1) of the SAT Act) that the starting point in respect of applications for costs in relation to GA Act proceedings is that the parties to those proceedings should bear their own costs. There is no role for the presumptive starting position, which applies in curial litigation, that a successful party is prima facie entitled to his or her costs.[40]
2. A party seeking a costs order in respect of proceedings under the GA Act bears the onus of persuading the Tribunal to exercise its discretion to make a costs order.[41]
3. The Tribunal is required to exercise its discretion having regard to all of the circumstances of the particular case, including the nature of the GA Act jurisdiction, starting from the presumption that no order for costs will be made.[42] Considerations which may be relevant to that exercise of discretion have been identified in a number of cases. These include factors such as the nature of GA Act proceedings, which are of an inquisitorial nature, are conducted informally, and in which parties frequently appear without any legal assistance; whether an application would have been made to the Tribunal in the absence of the party's application, and thus whether, without the intervention of the party, the represented person would not have had the benefit of the protection of an order made by the Tribunal; circumstances of urgency warranting legal representation in order to ensure the Tribunal is able to consider an application in a timely manner; circumstances that might impede a party being able to present their case to the Tribunal without legal representation; and the complexity of the application or other circumstances warranting the assistance of a legal representative.[43]
4. In a case where the Tribunal is moved to exercise its discretion to award costs in GA Act proceedings, s 16(4) of the GA Act makes specific provision for the Tribunal's exercise of that discretion, in three respects.
5. First, s 16(4) conditions the positive exercise of the Tribunal's discretion on it being satisfied that the party to the GA Act proceedings who seeks costs 'has acted in the best interests of the represented person or a person in respect of whom an application is made'. That condition is entirely consistent with the principle which underlies s 4(2) of the GA Act, namely that the primary concern of the Tribunal shall be 'the best interests of any represented person, or of a person in respect of whom an application is made'. It would antithetical to that requirement for the Tribunal to make an award of costs to a party to GA Act proceedings who has acted otherwise than in the best interests of the represented person (RP) or the person in respect of whom an application was made - that is, the proposed represented person (PRP).
6. Secondly, s 16(4) of the GA Act permits that the Tribunal order the costs of a party to be paid by, or out of the assets of, the RP or PRP. That power reflects the fact that proceedings under the GA Act are not conducted on an inter partes, adversarial, basis, but rather are inquisitorial in nature. The PRP very often does not, and may not be in a position to, play an active role in the proceedings. The grant of power to the Tribunal to require that the costs of a party be paid by, or out of the assets of, the RP or PRP, is consistent with the fact that the jurisdiction conferred under the GA Act is to be exercised in the best interests of the RP, or PRP. That power also reflects the public policy underlying the GA Act which is to permit applications to the Tribunal to be made by any person, so as to ensure that those adults who need assistance in their personal affairs, or in the administration of their estates, are able to obtain that assistance through the appointment of a guardian or administrator by the Tribunal,[44] and on the basis that in an appropriate case, it is the RP or PRP who should bear the costs of such applications, which are to be dealt with in their best interests.[45]
7. Thirdly, s 16(4) of the GA Act indicates that the amount of costs which may be awarded should be 'such costs relative to those proceedings as the [Tribunal] thinks fit'. The award of costs is thus not referable solely to the costs incurred by that party[46] (although clearly the costs awarded could not exceed the costs actually incurred by a party, consistent with the compensatory nature of costs orders made by the Tribunal).[47] Rather, those words confirm the Tribunal's wide discretion to award 'such costs'- namely an amount of costs - 'relative to' the proceedings. The words 'relative to' mean 'having reference or regard to'; 'relevant or pertinent to'; and 'correspondent; proportionate'.[48] The words 'relative to' thus direct the Tribunal's attention to matters such as the role or contribution played in the proceedings by the party seeking costs, the role of other parties to the proceedings, the complexity of the proceedings, and the best interests of the RP or PRP, including their ability to pay an award of costs. The latter is an important consideration in respect of the quantum of costs. Many RPs or PRPs do not earn income, and are not in a position to do so. For many, their only source of income is a disability or aged pension. It would be antithetical to the best interests of the RP or PRP (and, therefore, contrary to s 4(2) of the GA Act) for an award of costs to be made in such a quantum as to adversely impact on their well-being. That is not to suggest that costs will more readily be awarded in the case of RPs or PRPs who are wealthy, but rather to acknowledge that a positive exercise of discretion in favour of an award of costs to be paid by an RP or PRP is less likely if the RP or PRP does not readily have any means to pay such costs.

An order for costs should not be made in this case

1. Having taken into account the principles to which we have referred, and all of the circumstances of this case, and in particular the matters relied upon by the Applicants, we are not persuaded that a costs order should be made in the Applicants' favour. The parties should bear their own costs. We have reached that view for the following reasons.
2. First, the Costs Application pertains to costs incurred by the Applicants in the Review Application. It does not encompass costs they incurred in the application made by CM, which was determined in the Original Decision. By the time of the Review Application, the parties had already had exposure to the evidence, and to the submissions made by the other parties to the proceeding, in the course of the proceedings before the Tribunal at first instance.
3. Secondly, the Review Application was not complex. There was no special point of law involved. The material before the Tribunal on the Review Application comprised the material before the Tribunal at first instance, together with the additional evidence and submissions advanced by the parties who appeared at the hearing of the Review Application. The medical evidence was not complex and, in any event, by the time the Review Application was heard, there was no dispute between the parties that a guardianship order was required. The sole matter in dispute was whether one or more of the members of RK's family should be appointed his guardian(s) or whether the Public Advocate should remain in place as the limited guardian for RK.
4. Thirdly, as a guardianship order had already been made by the Tribunal in the Original Decision, this was not a case where RK obtained the benefit of a guardianship order by virtue of the Applicants making the Review Application. The only issue pursued by the Applicants in the Review Application was whether a family member - namely, either or both of them - should be appointed RK's guardian, rather than the Public Advocate.
5. Fourthly, we are unable to accept the submission by counsel for the Applicants that the magnitude of the conflict in RK's family was such that without legal assistance it is unlikely that the Applicants could have presented a coherent case to the Tribunal. The Applicants are highly educated, articulate and confident people. In the course of the hearing of the Review Application, each of the Applicants addressed the Tribunal at length, and answered questions posed by the Tribunal in relation to their evidence. We do not accept that the existence of the family conflict (of which there was no doubt) would have impeded their presentation of their case had they not been legally represented.
6. Fifthly, as for the Applicants' submission that their legal assistance 'ultimately resulted in issues being narrowed', that appeared to imply the nature of the legal advice the Applicants may have received. The submissions filed on the Applicants' behalf in the Review Application were prepared by their solicitors. Those submissions indicated that the Applicants did not accept that the requirements of s 43 of the GA Act were met. By the date of the hearing, the Applicants' position had changed, so that the existence of those threshold requirements for the appointment of a guardian was no longer disputed. However, the Tribunal has no evidence as to the legal advice given to the Applicants, nor the reason for the Applicants' change in attitude.
7. In any event, as the Tribunal is required to engage in a hearing de novo when it undertakes a review under s 17A of the GA Act, it is required to be satisfied of the matters set out in s 43 of the GA Act irrespective of the attitude of any or all parties to the proceedings. Consequently, we made findings in respect of the requirements of s 43 of the GA Act, having regard to the evidence before us on the Review Application, before turning to consider the question of who should be appointed as RK's guardian under s 44 of the GA Act.
8. Sixthly, the latter question required the Tribunal to make an assessment, having regard to the evidence given, and submissions made, by each of RK's family members, and the submissions made by the delegate of the Public Advocate, as to whether any of them would be suitable to be appointed as RK's guardian. The Applicants expressed their willingness to do so. It was apparent from the initial application made to the Tribunal that CM was willing to be appointed RK's guardian, and in the course of the Review Application hearing, she confirmed that she continued to be willing to be appointed. TK also indicated her willingness to be her father's guardian. All of the parties outlined, at length, their own suitability for appointment, and informed the Tribunal of their views relevant to the suitability of the other proposed guardians. They did so without the need for any intervention or assistance from their legal representatives for that purpose.
9. The Applicants were, of course, entitled to be legally represented, at their own cost, on the Review Application. While we do not doubt that the Applicants sought to act in the best interests of RK (in securing the appointment of a guardian from his family), for the reasons we have given, we are not persuaded that this is a case in which a costs order should be made. Consequently, it is unnecessary to give consideration to the additional matters arising out of s 16(4) of the GA Act which would bear on an award of costs, or the quantum of such award, had we determined that one should be made in the Applicants' favour in this case.
10. The Costs Applications will be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] Subject to Division 3 of Part 5 of the GA Act.

[2] State Administrative Tribunal Act 2004 (WA) (SAT Act) s 27(1).

[31] RK [2020] WASAT 53.

[32] CM is also RK's attorney, under an Enduring Power of Attorney made on 13 March 2018. An application for the appointment of an administrator for RK was recently dismissed by the Tribunal: RK [2020] WASAT 99.

[33] Cf r 42A of the State Administrative Tribunal Rules 2004 (WA).

[34] Applicants' Written Submissions in support of Costs Application, dated 22 May 2020 [1].

[35] Applicants' Written Submissions in support of Costs Application, dated 22 May 2020 [13].

[36] Applicants' Written Submissions in support of Costs Application, dated 22 May 2020 [8]-[11].

[37] Submissions on Costs [CM], filed 29 May 2020 [3]-[11]. The Applicants took issue with some of the matters raised in CM's submission in opposition to the Costs Application. Those matters were not material to consideration of the Costs Application.

[38] As defined in s 3 of the State Administrative Tribunal Act 2004 (WA).

[39] See Explanatory Notes for the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 (WA) cl 423.

[40] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 [50] (Murphy JA, Martin CJ and Corboy J agreeing).

[41] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 [51] (Murphy JA, Martin CJ and Corboy J agreeing).

[42] Cf Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 [9] (Martin CJ).

[43] See, eg, LC and JS [2007] WASAT 127 [37]-[57] (Member Mansveld); MB and EM [2014] WASAT 17 [69] (Judge Parry DP, Member Eddy and Senior Sessional Member Leslie).

[45] Cf Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 [43], [44] (EM Heenan J).

[47] Cf SAT Act s 87(3); Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 [51] (Murphy JA, Martin CJ and Corboy J agreeing).