AP - [2020] WASAT 120

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   AP [2020] WASAT 120
MEMBER:   JUDGE T SHARP, DEPUTY PRESIDENT
DR E MARILLIER, MEMBER
MS N OWEN-CONWAY, MEMBER

HEARD:   6 AND 7 MAY 2020
DELIVERED          :   9 OCTOBER 2020
FILE NO/S:   GAA 4441 of 2019
GAA 4442 of 2019
AP
Represented Person

Catchwords:

Administration - Enduring power of attorney - Conflict between adult children of represented person

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 40(1), s 44(3), s 105, s 107, s 107(1), s 107(1)(a), s 109, s 109(1), s 109(1)(c), Pt 9

Result:

Applications refused

Category: B

Representation:

Counsel:

Represented Person	:	No appearance
Applicant	:	Mr K de Kerloy & Mr A Hanna
Interested Party A	:	Mr S Cobbett
Interested Party C	:	Mr MN Solomon SC

Solicitors:

Represented Person	:	No appearance
Applicant	:	Herbert Smith Freehills
Interested Party A	:	King & Wood Mallesons
Interested Party C	:	Lavan

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

KS [2008] WASAT 29

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applications before the Tribunal concern AP, a woman in her late 80s who suffers from dementia.
AP has three adult sons, referred to in these reasons as, respectively, son C, son P and son A.
Son P has brought two applications to the Tribunal. The first application is made under s 40(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) for the appointment of an administrator of AP's estate. The second application is under s 109(1)(c) of the GA Act and seeks an order revoking an enduring power of attorney granted by AP in favour of son C.
We will set out the full background and details of the two applications later in these reasons, but for present purposes it is sufficient to say that son C, as attorney of AP, has commenced proceedings in the Supreme Court against son P (and those associated with him) for the recovery of money which, according to son C, was loaned by AP and her late husband to son P. Son P asserts that AP and her late husband gifted the money claimed or forgave any debt for any money loaned to him.
Son A supports the position taken by son C. Son A is also a plaintiff in these proceedings.
The purpose of son P's applications are, first, to set aside the enduring power of attorney and, second, to appoint son C instead as the administrator of all of AP's estate, except the Supreme Court proceedings which son P considers should be conducted by the Public Trustee.

Proceedings in the Tribunal

The two applications from son P were both filed with the Tribunal on 4 December 2019. The Tribunal on 17 December 2019 made certain programming orders including:
(1)Dr Roger Clarnette of Hollywood Specialist Centre in Nedlands must produce a medical report to the Tribunal, the Applicant and interested parties.
(2)The applications are to be referred to the Public Advocate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: AP [2020] WASAT 120
Case: [2020] WASAT 120
Decision Date: 9 OCTOBER 2020

CaseChat Overview and Summary

The case before the court involved an application to vary an existing enduring power of attorney. The applicant, a daughter of the represented person, sought to have the power of attorney revoked or, alternatively, for the court to appoint a new attorney. The respondent, another daughter of the represented person, opposed the application. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether there were grounds to revoke the existing power of attorney or to appoint a new attorney, given the conflict between the adult children. The court considered whether the represented person was still capable of managing their own affairs and whether there was sufficient evidence to support the revocation or appointment of a new attorney.

The court found that there was no evidence to suggest that the represented person lacked the capacity to manage their own affairs. The court noted that the conflict between the adult children did not, in itself, provide grounds for the revocation or appointment of a new attorney. The court held that the represented person's wishes, as expressed in the enduring power of attorney, should be respected, and that there were no grounds to interfere with the existing arrangement. The application was dismissed.

The court ordered that the application to revoke the existing enduring power of attorney or to appoint a new attorney be dismissed. The court further ordered that the costs of the application be paid by the applicant.

Orders