CJC

Case [2024] WASAT 79 31 July 2024

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   CJC [2024] WASAT 79
MEMBER:   MS F CHILD, MEMBER
HEARD:   15 JANUARY AND 24 JUNE 2024
FINAL SUBMISSIONS BY 27 JUNE 2024

DELIVERED : 31 JULY 2024
FILE NO/S: GAA 205 of 2024
GAA 240 of 2024
GAA 264 of 2024
GAA 265 of 2024
GAA 1802 of 2024
CJC
Represented Person
C
Applicant

Catchwords:

Guardianship and Administration - Review of guardianship order appointing Public Advocate as guardian - Application for appointment of administrator of estate - Application for filing of accounts by attorney acting under an enduring power of attorney - Represented person with diagnosis of fronto-temporal dementia and primary progressive aphasia - Whether represented person lacks capacity to make reasonable judgments about her person and her estate - Whether representative person is in need of a guardian - Whether represented person unable by reason of mental disability to make reasonable judgments about her estate and in need of an administrator of her estate - Wishes of the represented person - Distinction between wishes and capacity - Whether the enduring powers of attorney and enduring power of guardianship made by the represented person provide less restrictive alternatives to the making of orders - Transfer by an attorney of assets of the represented person to herself - Represented person located overseas - Whether the Tribunal has jurisdiction to review and make orders where represented person is outside Western Australia - Domicile - Whether the applications should be dismissed summarily on application of attorney - Lack of independent oversight of represented person's needs - Need for appointment of independent guardian and administrator of estate - Revocation of enduring powers - Apparent breach of obligations of attorney - Appointment of Public Trustee as administrator - Confirmation of the appointment of Public Advocate as limited guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 41, s 41(3), s 43(1), s 43(1)(b), s 43(1)(b)(iii), s 44(5), s 51, s 51(2)(g)(h), s 64, s 64(1), s 64(1)(a), s 65, s 67, s 70, s 71(3), s 72(1), s 84, s 85, s 86, s 87, s 90, s 97(1)(c), s 107, s 108, s 109, s 109(1)(a), s 109(1)(c), s 109(3), s 110, s 110B, s 110F, s 110H, s 110I, s 110N, s 110ZJ(3)(b), s 112(4), s 115, s 119, Pt 5, Pt 9, Div 3, Div 4, Sch 2, cl 4
State Administrative Tribunal Act 2004 (WA), s 9(a), s 9(b), s 47, s 47(1)(a), s 47(1)(b), s 47(1)(c), s 48

Result:

Public Trustee appointed plenary administrator
Public Advocate confirmed as limited guardian
Enduring power of attorney revoked
Enduring power of guardianship revoked
Attorney ordered to file copies of records of accounts of transactions made in connection with the power

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	Mr R Squires
Interested Party	:	Mr G Cummins and Mr J Birch

Solicitors:

Represented Person	:	N/A
Applicant	:	Edwards Lockhart
Interested Party	:	Public…

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: CJC [2024] WASAT 79
Case: [2024] WASAT 79
Decision Date: 31 JULY 2024

CaseChat Overview and Summary

The matter before the court involved a review of a guardianship order, which had appointed the Public Advocate as the guardian of CJC, a person diagnosed with fronto-temporal dementia and primary progressive aphasia. CJC had previously executed an enduring power of attorney, appointing her daughter as attorney. The daughter sought to file accounts and apply for the appointment of an administrator of CJC's estate, which was contested by the Public Advocate, who argued that CJC lacked capacity and needed an independent guardian and administrator. The court needed to determine whether CJC lacked capacity to make reasonable judgments about her person and estate, and whether an administrator was required. It also needed to consider the jurisdiction of the court given that CJC was located overseas, and whether the enduring powers of attorney and guardianship provided less restrictive alternatives to the court's orders.

The court found that CJC lacked capacity to make reasonable judgments about her estate and that she was in need of an administrator. It held that the wishes of CJC, as expressed in the enduring powers of attorney, did not equate to capacity and that the enduring powers of attorney did not provide a less restrictive alternative to the court's orders. The court also found that the daughter had breached her obligations as attorney by transferring CJC's assets to herself. Given CJC's location overseas, the court held that it had jurisdiction to review the matter and make orders. The court dismissed the daughter's applications and appointed the Public Trustee as administrator and confirmed the Public Advocate as limited guardian.

The final orders of the court were to confirm the appointment of the Public Advocate as limited guardian and the Public Trustee as administrator of CJC's estate. The court also revoked the enduring powers of attorney and guardianship executed by CJC. The court found that CJC was in need of independent oversight of her needs and that the daughter's conduct warranted the revocation of her powers as attorney. The court held that the daughter's breach of her obligations as attorney was an apparent breach of the duties and obligations of an attorney.

Orders