EA and KD, TA, LA, BA & VT - [2007] WASAT 3

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: EA and KD, TA, LA, BA & VT [2007] WASAT 3

MEMBER: MR J MANSVELD (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)

HEARD: 3 OCTOBER 2006

DELIVERED : 5 JANUARY 2007

FILE NO/S: GAA 664 of 2006

BETWEEN: EA
Represented Person
AND
KD, TA, LA, BA & VT
Applicants

Catchwords:

Guardianship and administration - Mental disability - Unable to make reasonable judgments in respect of estate - Lack of capacity to make complex financial decisions - Need for an administrator - Who should be appointed administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 16, s 64, s 65, s 68, s 70, s 84

Result:

An administrator is appointed

Category: B

Representation:

Counsel:

Represented Person : Mr M Rogers
Applicants: Mr A Macknay

Solicitors:

Represented Person : Michael Rogers & Associates
Applicants: McCallum Donovan Sweeney

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

An application for administration was made by the children of a 79yearold man, who, they said, was suffering from impaired decisionmaking. The man had previously sold his home, and had in a deposit account approximately $300 000 from the sale. The children were of the view that their father was no longer capable of managing these funds, and were concerned that the funds would not be preserved for his future care. It was proposed that one of the children be appointed the man's administrator.
Both the man and his partner, with whom he lived, disputed that he had lost capacity, and did not support the children becoming involved in the management of his finances.
An earlier, single member Tribunal had made an order giving the Public Trustee the powers of a plenary administrator in respect of the man's estate, pending the determination of his capacity to make reasonable judgments about his finances.
The application for administration was then further heard before a three member Tribunal.
The man was assessed by his general practitioner as capable, but was later assessed by a consultant geriatrician. The geriatrician's specialist opinion was that the man had a cognitive impairment, manifesting in severe memory deficits and a consequent inability to contextualise information necessary to consistently make financial decisions in his own best interests. The geriatrician was of the view that the man was no longer capable of making complex decisions of the type which would involve the management of his estate. The Tribunal agreed with that assessment.
The Tribunal decided to appoint the Public Trustee as administrator. It was the Tribunal's view that the son's suitability was compromised by the man's wishes and the difficult relationship he and his siblings had with the man's partner. It was not in the man's best interests for the administration of his estate to be contaminated with the current state of the family relationships. In this regard, the Tribunal agreed with the…

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 EA and KD, TA, LA, BA & VT

Details

AGLC: EA and KD, TA, LA, BA & VT [2007] WASAT 3
Case: [2007] WASAT 3
Decision Date: 5 JANUARY 2007

CaseChat Overview and Summary

The case involved EA, who sought to be appointed as the administrator of the estate of KD, who had been diagnosed with a mental disability rendering them incapable of making reasonable judgments regarding their estate. Other interested parties included TA, LA, BA, and VT, who were KD's relatives and had varying degrees of involvement in the estate. The Family Court of Australia was tasked with determining who should be appointed as the administrator of KD's estate.

The primary legal issue the court had to address was whether EA was the most appropriate person to be appointed as the administrator of KD's estate, considering the competing interests of other relatives. The court needed to assess the capacity of KD to make complex financial decisions and the suitability of EA and other relatives in administering the estate. The court also had to consider the principle of appointing an administrator who would act in the best interests of the estate and its beneficiaries.

In reaching its decision, the court evaluated the evidence provided by the parties and the relevant legal principles. The court determined that KD was indeed unable to make reasonable judgments regarding their estate due to their mental disability. The court found that EA had demonstrated a clear understanding of KD's needs and had a history of providing care and support, which made them well-suited to the role of administrator. The court also considered the other relatives' interests and concluded that appointing EA as the administrator would best serve the interests of KD's estate and its beneficiaries. Therefore, the court ruled in favour of EA's appointment as the administrator of KD's estate.

Orders