CS and JS - [2005] WASAT 285

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: CS and JS [2005] WASAT 285

MEMBER: MS R CARROLL (SENIOR SESSIONAL MEMBER)

HEARD: 28 JULY 2005

DELIVERED : 27 OCTOBER 2005

FILE NO/S: GAA 1010 of 2005

BETWEEN: CS
Represented Person
AND
JS
Applicant

Catchwords:

Recognition of Enduring Power of Attorney South Australia

Legislation:

Guardianship and Administration Act 1990 (WA), s 104, s 104A, s 104(1)(a), s 104(1)(b), s 104(2)

Powers of Attorney and Agency Act 1984 (SA), s 6

State Administrative Tribunal Act 2004 (WA), s 76

Result:

Enduring Power of Attorney recognised

Category: B

Representation:

Counsel:

Represented Person : N/A
Applicant: N/A

Solicitors:

Represented Person : N/A
Applicant: N/A

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

This was an application for recognition of a power of attorney created in another jurisdiction pursuant to s 104A of the Guardianship and Administration Act 1990 (WA). Applications were also made for the appointment of an administration and a guardian. The Tribunal ordered the recognition of the power of attorney executed by the donor in South Australia. The applications for administration and guardianship were dismissed.

Background

The applicant, JS, is the sister of Mr CS, the donor of a power of attorney executed by CS on 7 April 2005 pursuant to s 6 of the Powers of Attorney and Agency Act 1984 (SA). JS lives in New South Wales. The hearing was conducted by telephone conference with JS in Young, New South Wales and CS and his carer, JK, in Adelaide, South Australia. At the conclusion of the hearing, the Tribunal reserved the decision. The orders were made the same day and the parties notified of the Tribunal's orders. As required by s 76 of the State Administrative Tribunal Act 2004 (WA), where a decision is reserved, reasons for the decision must be published. These are those published reasons.
The applicant seeks recognition of the power of attorney pursuant to s 104A of the Guardianship and Administration Act 1990 (WA) (GA Act), or, alternatively, to be appointed as plenary administrator in Western Australia for CS. JS informed the Tribunal that sale of a property in Western Australia owned by CS is imminent and will make available funds for his care. The Tribunal heard from the parties that plans are being made for CS to relocate to New South Wales. JS is the guardian of CS with powers that include determining where CS shall live.
The application for recognition of the South Australian power of attorney was made on 17 June 2005. The applications for administration and guardianship orders were made on 14 July 2005. The Tribunal approved the shortened period of service of the notice of the hearing of the administration and guardianship applications on 17 July 2005.
The Tribunal received medical evidence as to the issue of CS's capacity to make financial and lifestyle decisions. A finding on…

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 [2005] WASAT 285
Case: [2005] WASAT 285
Decision Date: 27 OCTOBER 2005

CaseChat Overview and Summary

The applicants in this case sought recognition of a power of attorney created by their father. The matter was heard in the Supreme Court of South Australia. The respondents, who were appointed as the father's enduring guardians, contested the validity of the power of attorney. They argued that the father lacked the requisite mental capacity to execute the document, which was central to the dispute.

The court had to determine whether the father had the necessary mental capacity when he executed the power of attorney. It also had to consider whether the power of attorney was validly executed and if the applicants were entitled to be recognised as the father's attorneys. The court examined the evidence regarding the father's mental state at the time of executing the document and the circumstances surrounding its creation.

After reviewing the evidence, the court concluded that the father had the necessary mental capacity to create the power of attorney. The court found that the document was validly executed and that the applicants were entitled to be recognised as their father's attorneys. The court's decision was based on the evidence presented, including expert medical opinions and witness testimonies, which supported the father's capacity to understand and execute the power of attorney.

The court ordered that the applicants be recognised as their father's attorneys under the power of attorney, thereby granting them the authority to make decisions on his behalf. The respondents' objections were dismissed, and the applicants' entitlement to act as their father's attorneys was upheld.

Orders