ES [2014] WASAT 91

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 91
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:741/2014	Heard:	17 APRIL 2014
Coram:	MS F CHILD (MEMBER)	Delivered:	21/07/14
No of pages:	19	Judgment Part:	1 of 1
Result:	Applicant appointed plenary administrator Public Advocate appointed limited guardian
Category:	B
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Parties:	ES
Catchwords:	Guardianship and Administration Represented person with diagnosis of dementia Conflict between his children about where he should live Whether the applicant son suitable for appointment as guardian and administrator because of opposition of the represented person to the orders and hostility to the son Son not suitable for appointment as guardian as in the best interests of the represented person to preserve their relationship Suitable for appointment as administrator as able to perform the functions Appointment of the son as administrator Appointment of the Public Advocate as limited guardian
Legislation:	Guardianship and Administration Act 1990 (WA), s 43, s 44(5), s 64(1)(a), s 64(1)(b), s 65
Case References:	Nil
Summary	Following applications for the appointment of a guardian and administrator for ES, an elderly man with a diagnosis of dementia, the Tribunal appointed his son as the administrator of his estate and the Public Advocate as his guardian.,Although disputed by both ES and his daughter, the Tribunal accepted the consistent medical and allied health professional evidence that ES had a diagnosis of dementia and that he could no longer manage his affairs. The recommendation by the health professionals was that ES required secure residential care. ES denied this was the case and maintained he could manage his own affairs. The applicant son provided evidence to the Tribunal that ES's financial affairs had been in disarray, probably for a lengthy period prior to the applicant's intervention and submitted that his father was vulnerable to financial exploitation.,Although the son also sought his appointment as his father's guardian to make personal decisions for him, the Tribunal decided that it was not in ES's best interests that his son be appointed because of the importance of the continuing relationship between them. ES had no insight into his situation and was openly hostile to his son for making the applications. The appointed guardian needed to make decisions such as entry into residential care for ES that both ES and his daughter opposed. Such decisions, if made by the son, would likely increase the conflict in the family and this was not in the best interests of ES in the longer term as his relationship with his son had been acknowledged to be the enduring one in his life up to the time of the applications being made to the Tribunal.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : ES [2014] WASAT 91 MEMBER : MS F CHILD (MEMBER) HEARD : 17 APRIL 2014 DELIVERED : 21 JULY 2014 FILE NO/S : GAA 741 of 2014

GAA 742…

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: ES [2014] WASAT 91
Case: [2014] WASAT 91
Decision Date: 21 JULY 2014

CaseChat Overview and Summary

In the matter of ES, the Supreme Court of Queensland was presented with a complex dispute between the children of an elderly man diagnosed with dementia, concerning his place of residence. The son, who was the applicant, sought to be appointed as both the guardian and administrator for his father, despite opposition from his father to the orders and hostility towards him. The daughter contested the application, arguing that the applicant was unsuitable to hold both roles due to his relationship with his father.

The central legal issue was whether the applicant son was fit to be appointed as the guardian and administrator of his father. The court had to consider the best interests of the represented person and the impact of the applicant's appointment on the father's relationships with his other children. The court also needed to assess whether the applicant could perform the functions of the administrator role effectively.

The court determined that while the applicant was not suitable to be appointed as the guardian due to the negative impact on his father's relationships, he was fit to be appointed as the administrator. The court found that the applicant could effectively manage the financial and property matters of his father. Consequently, the court appointed the applicant as the plenary administrator and the Public Advocate as the limited guardian to protect the represented person's interests.

Orders

Orders of the court

Applicant appointed plenary administrator

Public Advocate appointed limited guardian

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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