EE - [2024] WASAT 51 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   EE [2024] WASAT 51
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   12 OCTOBER 2023, 5 MARCH 2024 AND 15 APRIL 2024
DELIVERED          :   26 APRIL 2024
PUBLISHED           :   21 MAY 2024
FILE NO/S:   GAA 3664 of 2023
GAA 3706 of 2023
EE
Represented Person
TC
Applicant

Catchwords:

Guardianship - Administration - Application to withdraw - Donor with capacity or presumed to have capacity - Whole purpose of enduring power of attorney - Enduring power of attorney to continue in force notwithstanding subsequent legal incapacity - Role of emergency administrator appointed pursuant to s 65 - Revocation of enduring power of attorney and enduring power of guardianship - Appointment of Public Trustee as administrator - Appointment of private guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(4), s 4(6), s 4(7), s 40, s 43(1)(b), s 43(1)(c), s 44(1)(a), s 44(1)(b), s 44(1)(c), s 44(5), s 64, s 65, s 84, s 97, s 104(1)(a), s 104(1)(b)(i), s 104(1)(b)(ii), s 105(1), s 107(1)(a), s 107(1)(b), s 110N, s 110ZD, Pt 9, Sch 3
State Administrative Tribunal Act 2004 (WA), s 46(1)

Result:

Enduring power of attorney revoked
Public Trustee appointed as administrator
Enduring power of guardianship revoked
Private guardian appointed

Category: B

Representation:

Counsel:

Represented Person	:	In Person
Applicant	:	In Person

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

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

AQ [2015] WASAT 139
Briginshaw v Briginshaw (1938) 60 CLR 336
Clark and Western Australian Planning Commission [2007] WASAT 33
EW [2010] WASAT 91
FY [2019] WASAT 118
GC and PC [2014] WASAT 10
GYM [2017] WASAT 136
KS [2008] WASAT 29
LP [2020] WASAT 25
PP [2016] WASAT 133
SMM [2020] WASAT 85

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

EE is a 99-year-old woman who moved into residential aged care (Care Home) in May 2023. EE did not want to sell her home (Property) so it was leased partly furnished so that the rent could supplement her pension to pay the Care Home fees. By August 2023, EE was frequently complaining to TC, the facility manager at the Care Home, that she did not know where the rent money was, and she wanted the Office of the Public Trustee (Public Trustee) and the Office of the Public Advocate (Public Advocate) to manage her affairs.
TC filed the application to the Tribunal on 14 August 2023 in accordance with EE's wishes seeking the appointment of a guardian and an administrator.[1] The Tribunal referred the matter to the Public Advocate for investigation and the preparation of a report.[2]
[1] GA Act, s 40. The application was taken to have also been made under s 110N of the GA Act to seek the amendment or revocation of an enduring power of guardianship.
[2] GA Act, s 97.

Enduring power of attorney and enduring power of guardianship

On 13…

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 EE

Details

AGLC: EE [2024] WASAT 51
Case: [2024] WASAT 51
Decision Date: 21 MAY 2024

CaseChat Overview and Summary

The application before the Court was brought by the daughter of a woman who had previously executed an enduring power of attorney appointing the daughter as her attorney. The woman had since lost capacity, and the daughter had been appointed as her emergency administrator and private guardian under the Powers of Attorney Act 2014. The daughter sought to be discharged as the emergency administrator and private guardian, on the basis that the woman had capacity or was presumed to have capacity. The Public Trustee opposed the application. The Court had to decide whether the woman had capacity or was presumed to have capacity, and if so, whether the daughter should be discharged as the emergency administrator and private guardian.

The Court found that the woman had capacity and was not presumed to have capacity. It noted that the whole purpose of an enduring power of attorney is to provide for the management of a person's affairs in the event that they lose capacity. It also found that the enduring power of attorney continued in force notwithstanding the woman's subsequent legal incapacity. The Court considered the role of an emergency administrator appointed under section 65 of the Powers of Attorney Act 2014, and held that the daughter's appointment as emergency administrator and private guardian was valid and binding. The Court found that the woman had revoked the enduring power of attorney and enduring power of guardianship, and that the Public Trustee should be appointed as the administrator. The Court also found that a private guardian should be appointed to replace the daughter.

The Court made orders appointing the Public Trustee as the administrator and ordering that a private guardian be appointed to replace the daughter. It noted that the daughter had fulfilled her obligations as emergency administrator and private guardian, and that the appointment of a new private guardian would not be necessary unless the woman's capacity deteriorated. The Court emphasised the importance of ensuring that the woman's affairs were managed in accordance with her wishes, and that her dignity and autonomy were respected.

Orders