AQ [2015] WASAT 139

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2015] WASAT 139
Published:	09/12/2015
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:3042/2015	Heard:	11, 12 AUGUST AND 25 SEPTEMBER 2015
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	25/09/15
No of pages:	30	Judgment Part:	1 of 1
Result:	Applications dismissed
Category:	B
PDF Version

Parties:	AQ
Catchwords:	Guardianship and administration Dementia Capacity to make reasonable judgments about personal and financial matters Briginshaw approach Allegations of influence not on their own determinative of capacity Planning for future care when faced with progressive cognitive decline in an environment of fractured family relationships Enduring power of attorney
Legislation:	Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 43, s 64, s 65, s 72(1), s 82, s 82(1), s 106, Sch 2 Pt B(e)
Case References:	Briginshaw v Briginshaw (1938) 60 CLR 336 Dalle-Molle v Manos (2004) 88 SASR 193 GC and PC [2014] WASAT 10 Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 Medical Board of Australia and Bowles [2014] WASAT 115 S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
Summary	Applications for guardianship and administration orders were made for a 78yearold man by his son. The man had previously been diagnosed with dementia.,The son was alleging that one of the man's daughters had, for her own interests, influenced the man to sell his property and purchase a new property (rural property) solely with his funds but which would be owned jointly by the man and the daughter.,The son alleged that the man, because of the effect of his dementia, could no longer protect his financial interests. The son also alleged that the rural property, in which it was intended that the man live with his daughter and her family, was inappropriate for his care needs and would result in him becoming socially isolated.,The son was supported in his applications by the man's other daughters.,The evidence of the man and his daughter was that they had been discussing his care needs for some time in the knowledge of his progressive dementia without any assistance from the man's other children.,In his evidence the man said that he had cared for his mother in her home when she was diagnosed with dementia and that he did not want to move to a nursing home. There was also evidence that when the man had agreed to care for his mother a family agreement had been made in which the mother's property was transferred to him.,The medical evidence was supportive of the view that the man had made a rational or reasonable judgment in the planning for his intermediate and longer term care given the diagnosis of dementia.,The Tribunal found that the context in which the man made the decision to purchase the rural property was a desire not to have to move to a…

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: AQ [2015] WASAT 139
Case: [2015] WASAT 139
Decision Date: 25 SEPTEMBER 2015

CaseChat Overview and Summary

In the case of AQ, the matter involved a dispute over guardianship and administration, specifically concerning an elderly woman with dementia. The court was tasked with determining whether she retained the capacity to make reasonable judgments about her personal and financial matters. The case was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the woman, who was suffering from dementia, had the cognitive capacity to make informed decisions about her personal and financial affairs, particularly in light of allegations of undue influence from family members. The court had to evaluate the woman's ability to understand and weigh information relevant to her decisions, and to communicate her wishes effectively.

The court approached the case by applying the Briginshaw standard of proof, which required the party asserting the woman's lack of capacity to establish it on the balance of probabilities. The court considered the woman's history, medical evidence, and testimonies from family members and professionals involved in her care. The evidence showed that while the woman had dementia, she was still capable of making reasonable judgments about her personal and financial matters, despite the progressive cognitive decline. The court found that the allegations of influence did not, on their own, establish a lack of capacity. Instead, the woman's overall ability to understand and act on information, and her history of making sound judgments, were pivotal in the court's decision.

Ultimately, the court concluded that the woman had the capacity to make reasonable judgments about her personal and financial matters. The applications for guardianship and administration were dismissed. The court's decision recognised the importance of planning for future care in an environment of fractured family relationships, while also upholding the woman's autonomy to the extent of her remaining cognitive abilities.

Orders

Orders of the court

Applications dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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