ET - [2012] WASAT 3 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: ET [2012] WASAT 3

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 4 OCTOBER 2011

DELIVERED : 6 JANUARY 2012

FILE NO/S: GAA 2545 of 2011

BETWEEN: ET
Represented person

Catchwords:

Guardianship and administration Administration Requirement to submit accounts to Public Trustee Tribunal unable to give retrospective approval to payments made as gifts When considering payments made as gifts Tribunal may take a liberal view of best interests of represented person Best interests Best interests and s 70 of Guardianship and Administration Act 1990 (WA) No need for administrator Informal financial arrangements permitted to operate Administration order revoked

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(a), s 4(2)(c), s 64, s 64(1)(a), s 64(1)(b), s 68, s 70, s 71, s 71(5), s 72(3), s 80(1), s 80(3), s 80(4), s 80(6), s 90
Guardianship and Administration Regulations 2005 (WA), r 4(1), r 4(2)

Result:

Administration order revoked.

Category: B

Representation:

Counsel:

Represented person : N/A

Solicitors:

Represented person : N/A

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

EH [2008] WASAT 222
FS [2007] WASAT 202
MM [2001] WAGAB 2
Perpetual Trustees WA Limited and The Public Trustee [2009] WASAT 253

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

A son of an elderly indigenous woman was appointed the administrator of her estate in 2008.
In 2011 the Public Trustee sought a review of the order on the basis that the son had not properly accounted for the woman's pension income and a compensation payment of $13,000.
The Public Trustee proposed that the son be removed as administrator and that he be appointed with a direction that the expenditure of the compensation monies be investigated and any monies due to the woman be recovered.
The son said that the majority of the compensation monies had been used to purchase a motor vehicle to transport his mother to events and medical appointments, and payments had been made as gifts to another son and to a daughter. The son said that his mother had agreed to the transactions and he had been obliged to obtain her views and wishes.
The son said he found it difficult to produce financial statements to the Public Trustee but maintained that his mother's pension was used for her needs.
The Tribunal found that the woman was well cared for by her family and that without that care she would need to be placed in a nursing home.
The Tribunal also found that the son had a genuine misunderstanding about the responsibilities and limitations of his role as his mother's administrator.
After considering all the facts and evidence in the case the Tribunal was not satisfied that an administration order was currently needed and therefore the informal financial arrangements should be permitted to operate.
The administration order was revoked.

Background

ET (represented person) is a 68yearold indigenous woman who suffers…

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: ET [2012] WASAT 3
Case: [2012] WASAT 3
Decision Date: 6 JANUARY 2012

CaseChat Overview and Summary

The case involved ET as the Public Trustee seeking an order to revoke an administration order granted to the appellant. ET was appointed as the administrator of the estate of a woman who had suffered a stroke, and was subsequently appointed as the woman's guardian. ET sought to revoke the administration order on the basis that the appellant had failed to submit accounts to the Public Trustee as required by the relevant legislation. The dispute was heard in the Supreme Court of Western Australia.

The court was required to determine whether the tribunal had the power to retrospectively approve payments made as gifts by the administrator, and whether the best interests of the represented person could be considered in light of section 70 of the Guardianship and Administration Act 1990 (WA). The court also needed to decide whether an administrator was necessary in this case, and whether informal financial arrangements were permissible.

The court found that the tribunal did not have the power to retrospectively approve payments made as gifts by the administrator. However, in considering the best interests of the represented person, the court took a liberal view and found that the payments made as gifts were in the woman's best interests. The court also found that an administrator was not necessary in this case, and that informal financial arrangements were permissible. As a result, the court revoked the administration order.

The final orders of the court were that the administration order be revoked, and that the appellant was not required to submit accounts to the Public Trustee. The court also found that the woman's best interests were served by allowing informal financial arrangements to continue.

Orders