CS and JS [2014] WASAT 173

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 173
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1065/2014	Heard:	1 JULY AND 12 SEPTEMBER 2014
Coram:	MS F CHILD (MEMBER)	Delivered:	18/12/14
No of pages:	19	Judgment Part:	1 of 1
Result:	Public Trustee appointed administrator
Category:	B
PDF Version

Parties:	CS JS
Catchwords:	Guardianship and administration Application for the appointment of administrator Diagnosis of dementia Existing enduring power of attorney Presumption of capacity Allegations of incapacity at time of execution of enduring power of attorney and misconduct on the part of the attorneys Need for administration order Appointment of Public Trustee Enduring power of attorney not revoked
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(4), s 4(7), s 9, s 16(4), s 64, s 64(1)(a), s 64(1)(b, s 104, s 107, s 108(1), s 108(2)(b), s 108(1)(b), s 109, s 109(1)(c), s 110K(1), s 112(4) State Administrative Tribunal Act 2004 (WA), s 9, s 39, s 87(1)
Case References:	GC and PC [2014] WASAT 10 Guthrie v Spence [2009] NSWCA 369 LC and JS [2007] WASAT 127 S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306
Summary	Following an application by one of the represented person's adult children (her son, JS), the Tribunal appointed the Public Trustee as the administrator of her estate. The represented person, is a recently widowed, elderly woman with a diagnosis of dementia.,Although the represented person had an enduring power of attorney under which two of her other children could manage her affairs as attorneys, JS; challenged his mother's capacity to give the enduring power of attorney at the time it was executed. Later in the proceedings, JS also alleged that his sister and brother had acted inappropriately as attorneys.,The represented person was reported to be distressed by the proceedings before the Tribunal and by the escalating conflict between JS and her other children.,The Tribunal was satisfied that the represented person lacked capacity to manage her own financial affairs and that it was in her best interests that the proceedings before the Tribunal be brought to an end.,The attorneys undertook not to act under on the enduring power of attorney during the period of appointment of the Public Trustee. The Tribunal did not revoke the enduring power of attorney executed by the represented person as it was not satisfied that the presumption that she was capable of executing the enduring power of attorney in 2013 had been displaced. However, given the conflict between her children and the serious allegations made by JS regarding the conduct of the attorneys, the Tribunal determined that the represented person was in need of an administrator of her estate, at least in the short term.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : CS and JS [2014] WASAT 173 MEMBER : MS F CHILD (MEMBER) HEARD : 1 JULY…

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 CS and JS

Details

AGLC: CS and JS [2014] WASAT 173
Case: [2014] WASAT 173
Decision Date: 18 DECEMBER 2014

CaseChat Overview and Summary

The case of CS and JS involved an application for the appointment of an administrator for CS, who had been diagnosed with dementia. The application was made by CS's daughter, JS, who sought to have the Public Trustee appointed as CS's administrator. CS had an existing enduring power of attorney executed in favour of JS and another individual. The central issue before the court was whether CS was still capable of managing her own affairs and if there was a need for an administration order. Additionally, there were allegations of incapacity at the time of the execution of the enduring power of attorney and misconduct on the part of the attorneys.

The court considered the presumption of capacity and the need to establish incapacity on the balance of probabilities. It examined the evidence regarding CS's diagnosis of dementia and the allegations of misconduct by the attorneys. The court determined that there was sufficient evidence to support the appointment of an administrator due to CS's incapacity to manage her own affairs. It also noted that the enduring power of attorney had not been revoked, but the court was satisfied that the application for an administration order was necessary to protect CS's interests.

Based on its findings, the court appointed the Public Trustee as the administrator for CS. The court concluded that the Public Trustee was the most suitable candidate to manage CS's affairs, given the circumstances of the case and the need to ensure that CS's interests were adequately protected. The enduring power of attorney remained in place but was not revoked, and the Public Trustee's role as administrator was intended to supplement and support the existing arrangements.

Orders

Orders of the court

Public Trustee appointed administrator

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.