FC - [2016] WASAT 2 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: FC [2016] WASAT 2

MEMBER: MS F CHILD (MEMBER)

HEARD: 1 SEPTEMBER 2015 AND 26 NOVEMBER 2015

DELIVERED : 26 NOVEMBER 2015

PUBLISHED : 13 JANUARY 2016

FILE NO/S: GAA 2869 of 2015
GAA 3149 of 2015
GAA 3862 of 2015

BETWEEN :FC
Represented Person

Catchwords:

Guardianship and administration Applications for appointment of an administrator and a guardian and for intervention in an enduring power of attorney and an enduring power of guardianship Donor diagnosed with dementia Enduring powers of attorney not effective Need for appointment of administrator of the estate Existing enduring power of guardianship No need for guardianship order Wishes of the donor

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(c), s 40, s 43, s 51, s 51(2)(g), s 64, s 65, s 68(3), s 68(3)(a), s 68(3)(b), s 71(5), s 75, s 102, s 104, s 104(1), s 104(2)(b), s 108, s 109, s 109(1)(c), s 109(3), s 110(N), Sch 3, cl 4

Result:

Administrator appointed
Guardianship application dismissed
Applications for intervention dismissed

Summary of Tribunal's decision:

Adult children of an elderly nursing home resident with a diagnosis of dementia sought guardianship and administration orders for her to provide for joint decisionmaking between her eldest son and youngest daughter. The Tribunal decided that an administration order was needed as documents executed by the woman in 2002 and in 2015 had not effectively created enduring powers of attorney.
The Tribunal appointed the woman's youngest daughter as the administrator of her estate. This appointment was consistent with the choice made by the woman in an enduring power of attorney executed in 2002 when there was no question of her capacity to do so and her more recently expressed wishes, at the hearings before the Tribunal, to the Public Advocate's investigator and to the Director of Nursing of the facility in which the woman lived.
The Tribunal determined that the existing enduring power of guardianship (EPG) was a less restrictive alternative to the making of a guardianship order. The EPG appointed the youngest daughter of the woman as sole enduring guardian and the Tribunal found this was consistent with the express wishes of the woman regarding her personal decisionmaking.
The applications to intervene were dismissed as the orders proposed to be made were not necessary or consistent with the wishes of the woman.

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

CH [2003] WAGAB1
EW [2010] WASAT 91
Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423
Re
C [2012] WASAT 50

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

FC is an 88yearold woman, who lives in an aged care facility. She has been diagnosed with dementia. FC has seven adult children. Some of the children live in the town in which FC lives and others live elsewhere in Western Australia or…

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: FC [2016] WASAT 2
Case: [2016] WASAT 2
Decision Date: 13 JANUARY 2016

CaseChat Overview and Summary

The case involved FC, a donor diagnosed with dementia, and multiple applicants who sought to intervene in enduring powers of attorney and guardianship. The applicants argued that the enduring powers of attorney were ineffective and that an administrator should be appointed to manage FC's estate. They also sought a guardianship order for FC, claiming that the existing enduring power of guardianship was insufficient. The court had to determine whether the enduring powers of attorney were still effective and whether an administrator and a guardian were necessary.

The primary legal issues were whether the enduring powers of attorney were still valid and if FC required an administrator and a guardian. The court examined the terms of the powers of attorney and the medical evidence regarding FC's cognitive capacity. It considered whether FC's dementia rendered the powers of attorney ineffective and whether an administrator should be appointed to manage FC's estate. Additionally, the court assessed the necessity of a guardianship order, given the existing enduring power of guardianship.

The court found that the enduring powers of attorney were no longer effective due to FC's dementia. It concluded that an administrator should be appointed to manage FC's estate, as the powers of attorney were insufficient. However, the court determined that there was no need for a guardianship order. The existing enduring power of guardianship was deemed sufficient, and the court took into account FC's expressed wishes as documented in the enduring power of guardianship. The court considered these wishes in its decision-making process.

The court ordered the appointment of an administrator to manage FC's estate and confirmed the existing enduring power of guardianship as sufficient. It did not grant a guardianship order, respecting FC's previously expressed wishes. The court's decision balanced the need to protect FC's interests with respect for FC's autonomy and previously stated preferences.

Orders