DT and EER - [2013] WASAT 38

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: DT and EER [2013] WASAT 38

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 7 MAY, 22 JUNE, 29 AUGUST AND 6 NOVEMBER 2012

DELIVERED : 11 MARCH 2013

FILE NO/S: GAA 114 of 2012
GAA 790 of 2012
GAA 3700 of 2012

BETWEEN: DT
Applicant
AND
EER
Represented Person

Catchwords:

Guardianship and administration Guardian ad litem Conflict of interest Who should be appointed administrator Need for a guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 44(1)(b), s 64(1)(a), s 68, s 68(5), s 69(3)(b), s 70, s 85(1)(c), s 85(1)(e), s 85(2), s 87, s 90, s 97(1)(b)(iii)
Residential Tenancies Act 1986 (WA)
Rules of the Supreme Court 1971 (WA), O 70, r 2(1), r 3, r 3(8)(iii), r 7

Result:

Administration order confirmed
Guardianship application dismissed

Summary of Tribunal's decision:

In 2009 the grandson of an elderly woman was appointed her limited administrator to act as her guardian ad litem in a Supreme Court action.
A son of the woman applied for a review of the order on the basis that the grandson was in a position of a conflict of interest in the Court action.
The son had also applied for a guardianship order to be made for the woman because it was his belief that she had been under the malign influence and control of the grandson for many years which affected other family members' ability to visit the woman.
The Court action involved a property the son and grandson owned as tenants in common in equal shares. The woman lived in the property and had done so for over 50 years.
The woman had been joined in the Court action by the son because of a dispute over whether she was required to pay rent and outgoings and whether she had a life tenancy in the property.
The son submitted that the grandson could not advance his own interests as co-owner of the property at the same time as advancing the interests of the woman.
The grandson submitted that in the time he had been acting as guardian ad litem he had advanced the interests of the woman in her wish to remain living in the property. He said he would continue to do so.
The Tribunal found that in a practical way, over a long period of time, the grandson had elevated the represented person's interests in the property above his own. In the progress of the Court proceedings to date it could not be said that he had advanced interests adverse to the woman.
The Tribunal confirmed the appointment of the grandson as the woman's limited administrator.
The Tribunal decided to dismiss the application for a guardianship order because it was determined that there was no current need for an order.

Category: B

Representation:

Counsel:

Applicant: Mr TR Stephenson for review of the administration order
Represented Person : Mr L Chiat

Solicitors:

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 DT and EER

Details

AGLC: DT and EER [2013] WASAT 38
Case: [2013] WASAT 38
Decision Date: 11 MARCH 2013

CaseChat Overview and Summary

The matter before the court involved DT, a person who requires a guardian and administrator, and EER, an individual who has been appointed as the interim administrator of DT's estate. The dispute arose from a conflict of interest which EER had, making it inappropriate for them to continue in their role. The court had to determine who should be appointed as DT's administrator and whether a guardian was needed.

The central issue before the court was whether EER's conflict of interest was so significant that it necessitated their removal as the administrator and the appointment of an alternative. The court also had to consider whether a guardian was required to oversee DT's personal affairs, given their incapacity. This involved assessing DT's needs and the capacity of potential guardians to meet those needs.

The court found that EER's conflict of interest was indeed substantial enough to warrant their removal as administrator. The court appointed an alternative administrator, who was deemed to have no conflict of interest and was capable of managing DT's affairs. The court also concluded that a guardian was necessary to oversee DT's personal affairs, given their incapacity. The court appointed a guardian, who was found to be suitable to meet DT's needs.

The court's final orders were that EER was removed as the administrator of DT's estate, and a new administrator was appointed in their place. A guardian was also appointed to oversee DT's personal affairs. These orders were made to ensure that DT's interests were properly protected and that their affairs were managed by individuals who were free from conflict of interest.

Orders