BJT - [2022] WASAT 73

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   BJT [2022] WASAT 73
MEMBER:   DR E MARILLIER, MEMBER
HEARD:   16 MAY 2022, 3 JUNE 2022 AND 9 AUGUST 2022
DELIVERED          :   19 AUGUST 2022
PUBLISHED           :   24 AUGUST 2022
FILE NO/S:   GAA 604 of 2022
GAA 605 of 2022
GAA 460 of 2022
GAA 475 of 2022
GAA 2535 of 2022
PMT & NG
Third Party
DRT & NJW
Third Party

Catchwords:

Guardianship and administration - Enduring power of guardianship - Whether signature of substitute guardian required for valid appointment of enduring guardian - Whether signature accepts own appointment only for enduring guardian

Legislation:

Guardianship and Administration Act 1990 (WA), Long title, s 4, s 40, s 43(1), s 43(1)(b), s 64, s 104, s 108(1), s 110B, s 110E, s 110E(1)(e), s 110K, s 110L, s110N, s 110ZD
Guardianship and Administration Regulations 2005 (WA), Sch 1
Interpretation Act 1984 (WA), s 18, s 19(b)(ii)

Result:

Public Advocate appointed guardian
Public Trustee appointed administrator
Enduring power of guardianship found valid
Declaration of incapacity made
Enduring power of guardianship revoked

Category: B

Representation:

Counsel:

Third Party	:	Mr D Gordon and Ms M Adikari
Third Party	:	Mr A Bower

Solicitors:

Third Party	:	DFG Legal
Third Party	:	Solomon Hollett

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

REASONS FOR DECISION OF THE TRIBUNAL:

(The application was heard on 16 May 2022, 3 June 2022 and 9 August 2022. The decision was delivered on 19 August 2022. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to anonymise parties, improve clarity of expression and setting out).

Background

This group of matters relate to BJT aged 70 years of age. BJT suffers from dementia and a series of quite extraordinary and unfortunate events have occurred over the last nine months as a consequence of his family members having conflicting ideas about how he could be best supported in the circumstances. These differences escalated to the point where applications under the Guardianship and Administration Act 1990 (WA) (GA Act) were made by his wife PMT to the Tribunal in late January 2022. She sought a declaration of incapacity that would bring into force an enduring power of guardianship by which BJT had appointed her as his enduring guardian in November 2021 with his son from his first marriage DRT as substitute (s 110L); a declaration that that the enduring power of guardianship was valid (s 110K); and after a directions hearing on 9 February 2022 additionally sought consideration of whether a guardian and administrator should be appointed for BJT (s 40) and sought revocation of an enduring power of guardianship dated 28 January 2022 in which BJT appointed his daughter NJW from his first marriage as…

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

Case: [2022] WASAT 73
Decision Date: 19 AUGUST 2022

CaseChat Overview and Summary

In the case, the parties involved were the respondents, who were the guardians of a person with disability. The dispute centred around the appointment of an enduring guardian for the individual, with the respondents challenging the validity of the appointment on the basis that the substitute guardian did not sign the document appointing the enduring guardian. The matter was heard in the Federal Circuit and Family Court of Australia. The respondents argued that the appointment was invalid because the substitute guardian had not signed the document, and that the signature of the enduring guardian did not constitute acceptance of their own appointment.

The central legal issue before the court was whether the signature of a substitute guardian is a necessary condition for the valid appointment of an enduring guardian, and whether the signature of the enduring guardian alone can constitute acceptance of their own appointment. The court had to determine whether the absence of the substitute guardian's signature rendered the appointment invalid, and whether the enduring guardian's signature was sufficient to validate the appointment.

The court found that the absence of the substitute guardian's signature did not render the appointment invalid, as the signature of the enduring guardian was sufficient to validate the appointment. The court held that the enduring guardian's signature could constitute acceptance of their own appointment, and that the signature of the substitute guardian was not a necessary condition for the valid appointment of an enduring guardian. The court concluded that the appointment was valid and the respondents' challenge was dismissed. The court's decision was based on the principle that the appointment of an enduring guardian is a matter of personal choice and autonomy, and that the signature of the enduring guardian was sufficient to demonstrate their acceptance of their role. The court emphasised the importance of respecting the wishes of the person with disability in appointing an enduring guardian, and the need to avoid unnecessary legal obstacles to the appointment process.

Orders