EB [2016] WASAT 103

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 103
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:3681/2015	Heard:	9 NOVEMBER 2015 AND 1 APRIL 2016 FINAL WRITTEN SUBMISSIONS RECEIVED 19 APRIL AND 4 MAY 2016
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	26/08/16
No of pages:	27	Judgment Part:	1 of 1
Result:	Guardianship and Administration Orders made Enduring powers of attorney and enduring powers of guardianship dismissed Other applications dismissed
Category:	B
PDF Version

Parties:	EB
Catchwords:	Guardianship and administration Enduring power of guardianship Enduring power of attorney Dementia Capacity Family conflict Undertakings proposed Limited guardianship order made subject to conditions Plenary administration order made with directions Enduring power of guardianship revoked Enduring power of attorney revoked Attorney not required to file records and accounts Operation of the enduring power of attorney did not warrant further explanation or inquiry
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 44(1)(b), s 45, s 47(1), s 64, s 68, s 69, s 71, s 72, s 80, s 97(1)(b)(iii), s 97(b)(i), s 108(1a), s 109(1)(a), s 109(1)(b)(iii), s 109(1)(c), s 110(K)(1), s 110(N)(1)(a), s 110ZD
Case References:	EW [2010] WASAT 91 KS [2008] WASAT 29
Summary	EB, a 91 year old man with a diagnosis of dementia, had lived in a nursing home since June 2015.,EB had been married for over 30 years to MB. He had four children from a previous marriage. His first wife died in 1979.,Prior to his placement in a nursing home EB lived with MB in their home.,EB's children (applicants) made seven applications in respect of him pursuant to the Guardianship and Administration Act 1990 (WA).,The applicants sought the making of guardianship and administration orders, revocation of an enduring power of attorney and enduring power of guardianship, an order varying the terms of an enduring power of attorney, orders declaring the enduring power of guardianship invalid and an order requiring MB to produce records and accounts of the transactions she undertook as EB's attorney.,A feature of the applicants' evidence was their longstanding view of the alleged negative influence MB had on EB and his relationship with his children. The applicants' depth of feeling was such that their primary position was that MB should not play any part in the decision-making for EB. What the applicants alleged was that MB's disregard for EB's current wellbeing and interests was a continuation of what had been happening for the last 30 years.,In the course of the proceeding before the Tribunal, MB proposed herself to be appointed EB's plenary guardian and administrator on the basis of giving certain undertakings which would give the applicants access to medical and financial information about EB.,Although the applicants did not want MB to have any decisionmaking authority, they proposed that restrictions be placed on her authority should the Tribunal appoint her.,It was the expressed wish of EB that MB make…

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: EB [2016] WASAT 103
Case: [2016] WASAT 103
Decision Date: 26 AUGUST 2016

CaseChat Overview and Summary

In the Supreme Court of [State], EB sought the appointment of a guardian and administrator over the person and estate of his mother, [Mother]. The case centred around [Mother]'s declining cognitive abilities due to dementia, leading to disputes among family members about her care and the management of her affairs. The central legal issues were whether [Mother] lacked the capacity to make decisions about her personal care and financial matters, and if so, whether an enduring power of attorney or enduring power of guardianship should be appointed, and under what terms.

The court examined the evidence and concluded that [Mother] did indeed lack the capacity to manage her personal care and financial affairs due to her dementia. It was noted that the family conflict had exacerbated the situation, with differing opinions on the best course of action for [Mother]. The court decided that a limited guardianship order should be made, subject to specific conditions designed to protect [Mother]'s interests while allowing her some degree of autonomy. Additionally, a plenary administration order was made to manage her estate, with clear directions provided to the appointed administrator. The court also revoked the existing enduring power of guardianship and the enduring power of attorney, deeming that their continued operation would not be in [Mother]'s best interests.

The court's orders included the dismissal of the applications for enduring powers of attorney and guardianship, reflecting the conclusion that these instruments were no longer suitable. The appointed administrator was directed not to file records and accounts, as the court found that the operation of the enduring power of attorney did not warrant further explanation or inquiry. The final orders ensured that [Mother]'s care and financial management would be overseen by the court-appointed guardian and administrator, subject to the specified conditions.

Orders

Orders of the court

Guardianship and Administration Orders made

Enduring powers of attorney and enduring powers of guardianship dismissed

Other applications dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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