CW - [2022] WASAT 11 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   CW [2022] WASAT 11
MEMBER:   MS F CHILD, MEMBER
HEARD:   6 AUGUST 2021 AND 15 OCTOBER 2021
DELIVERED          :   10 FEBRUARY 2022
FILE NO/S:   GAA 2340 of 2021
GAA 2336 of 2021
GAA 2324 of 2021
GAA 2338 of 2021
GAA 2042 of 2021
CW
Proposed Represented Person

Catchwords:

Guardianship and administration - Applications for the appointment of guardian and administrator and for revocation of enduring power of guardianship and enduring power of attorney and for filing of records of transactions by attorneys - Proposed represented person with diagnosis of dementia - Family conflict - Whether enduring guardians and attorneys have a conflict of interest - No conflict established - Less restrictive alternative of existing enduring powers of attorney and guardianship to meet needs - No need for guardianship and administration orders - Whether applicants have a proper interest in bringing applications for intervention in enduring power of guardianship and enduring power of attorney

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43(1)(b), s 43(1)(c), s 44, s 44(1)(b), s 48, s 49, s 50, s 51, s 51(2)(b), s 53(a), s 54, s 64(1), s 68, s 97(1)(b), s 97(1)(b)(i), s 104, s 104(1)(a), s 107, s 108, s 108(1a), s 109(1), s 109(1)(a), s 109(1)(c), s 110, s 110B, s 110E, s 110F, s 110H, s 110J, s 110K, s 110N, s 110N(b), s 110(1)(b)(i), s 110(1)(b)(ii), s 112(4), Sch 3, Pt 5, Div 3, Pt 9

Result:

Applications dismissed

Category: B

Representation:

Counsel:

Proposed Represented Person

N/A

Solicitors:

Proposed Represented Person

N/A

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

AR [2021] WASAT 137
BFO & Ors and KPW [2014] WASAT 68
BJB and GB [2008] WASAT 307
GA and EA and GS [2013] WASAT 175
LFG and Public Trustee [2015] WASAT 71
MB [2004] WAGAB 25
PHQ and LPQ [2015] WASAT 5

REASONS FOR DECISION OF THE TRIBUNAL:

Background

These are the reasons for the decisions made on applications brought under the Guardianship and Administration Act 1990 (WA) (GA Act) seeking orders in respect of CW.
In all reported decisions of the Tribunal in GA Act matters any identifying information is removed to protect the privacy of CW.

Applications and the proceeding before the Tribunal

CW is an elderly man with a diagnosis of dementia. He is a widower and has four living daughters SP, LC, RR and PB and a son IW.
CW is described as a self-funded retiree, lives in his own home and owns another property in which his daughter, SP lives. CW is dependent on a combination of domestic support services from family and paid supports.
CW made enduring powers of attorney (EPA) and guardianship (EPG) on 8 October 2013 by which he appointed his daughters, RR and LC as his attorneys and enduring guardians (enduring guardians/attorneys).
The enduring guardians/attorneys made an application for directions which was dismissed following a directions hearing in May 2021.…

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: CW [2022] WASAT 11
Case: [2022] WASAT 11
Decision Date

CaseChat Overview and Summary

This case involves a dispute between family members regarding the care and financial management of CW, an elderly man diagnosed with dementia. The applicants, CW's children and grandchildren, sought the appointment of a guardian and an administrator of CW's estate, as well as the revocation of CW's existing enduring power of attorney (EPA) and enduring power of guardianship (EPG), which were made in 2013. The applicants also sought intervention in the EPA and EPG, including the filing of records of transactions by the attorneys.

The primary legal issues for the court to decide were whether CW was a person for whom guardianship and administration orders could and should be made, and whether the applicants had a proper interest in bringing the applications for intervention in the EPA and EPG.

The court found that CW was a person for whom guardianship and administration orders could be made, as he lacked the capacity to make reasonable judgments about his estate and his person. However, the court also found that the existing EPG and EPA were less restrictive alternatives to meet CW's needs, and therefore there was no need for the appointment of a guardian and administrator. Additionally, the court found that the applicants did not have a proper interest in bringing the applications for intervention in the EPA and EPG.

In conclusion, the court dismissed all the applications made by the applicants. The reasoning behind the decision was that CW's existing EPG and EPA were sufficient to manage his affairs, and there was no evidence of misconduct or failure to comply with obligations by the attorneys. Furthermore, the applicants did not have a proper interest in bringing the applications for intervention, as they were not based on genuine, reasonably based allegations.

Orders