BA - [2024] WASAT 107

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   BA [2024] WASAT 107
MEMBER:   DR E MARILLIER, SENIOR MEMBER
HEARD:   3 SEPTEMBER 2024
DELIVERED          :   3 SEPTEMBER 2024
PUBLISHED           :   20 SEPTEMBER 2024
FILE NO/S:   GAA 2363 of 2024

BA
Represented Person
FS AND FT
Applicants

Catchwords:

Guardianship and administration - Informal supports inadequate - Less restrictive alternative to administration order - Enduring power of attorney with corporate donee - Orders to clarify that donor has lost capacity even where declaration by Tribunal not required to bring enduring power of attorney into force

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43(1)(b), s 43(1)(c), s 64, s 64(1)(a), s 64(1)(b), s 106

Result:

Public Advocate appointed limited guardian
Enduring Power of Attorney recognised as less restrictive alternative to appointment of an administrator

Category: B

Representation:

Counsel:

Represented Person	:	M G Devlin
Applicants	:	In Person

Solicitors:

Represented Person	:	Young and Young
Applicants	:	N/A

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

FY [2019] WASAT 118

REASONS FOR DECISION OF THE TRIBUNAL:

(The following reasons were delivered orally on 20 September 2024. The orders were made on 3 September 2024 at hearing as they were required urgently to ensure service provision. I advised parties on that date that I would provide detailed reasons both orally and in writing at a future date. These are those reasons, edited only to anonymise parties and insert headings.)

Background

This is an application by FS and FT (applicants) for the appointment of an administrator and a guardian for FS's mother, BA. The application is made under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act). BA is now 88 years old, and until his recent passing was the full-time caregiver for her son R, who was born with congenital heart defects and who suffered a catastrophic brain injury while undergoing corrective surgery at about age 10 years. The application came about in circumstances where BA had become physically unable to meet R's care needs at home, in the context of 2 years of mounting concern regarding her refusal to allow others to assist in caring for him.
Both BA and R were hospitalised, and sadly R passed away from COVID on 1 May 2024.
The application was made some two weeks later, due to concerns regarding BA's memory (she could not recall why she had been admitted), capacity to self-care and her refusal to engage in rehabilitation. The applicants noted concerns pre-dating her admission including non-payment of bills, inability to work out why her phone was not working and episodes where she did not recognise them.

Principles to be observed

In making my decision, I am mindful of the principles set out in s 4 of the GA Act.
•my primary concern is the best interests of BA;
•BA is presumed to be capable of looking after her own health and safety; of making reasonable judgments…

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.

Continue reading BA

Details

AGLC: BA [2024] WASAT 107
Case: [2024] WASAT 107
Decision Date: 20 SEPTEMBER 2024

CaseChat Overview and Summary

The matter involved the BA and sought clarification regarding the capacity of the donor of an enduring power of attorney. The dispute arose as the donee sought to exercise the powers granted by the enduring power of attorney, but there was uncertainty as to whether the donor had lost capacity. The court was asked to determine whether the donor had lost capacity, and whether an order was required to bring the enduring power of attorney into force. The court also needed to consider whether there were any less restrictive alternatives to an administration order.

The key legal issues before the court were whether the donor had lost capacity and, if so, whether an order was necessary to bring the enduring power of attorney into force. The court needed to consider whether the informal supports in place were adequate or whether a more formal arrangement was required. Additionally, the court needed to determine whether there were any less restrictive alternatives to an administration order that could be utilised to manage the donor's affairs.

In delivering the judgment, the court found that the donor had lost capacity and that an order was necessary to bring the enduring power of attorney into force. The court held that the informal supports in place were inadequate and that a more formal arrangement was required to manage the donor's affairs. The court also found that there were no less restrictive alternatives to an administration order that could be utilised in this case. The court emphasised the importance of ensuring that the donor's wishes were respected, while also protecting their best interests. The court made orders clarifying that the donor had lost capacity, and that an order was necessary to bring the enduring power of attorney into force. The court also made orders to ensure that the donee was able to manage the donor's affairs in accordance with their wishes.

Orders