FH [2016] WASAT 95

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 95
Published:	08/08/2016
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:861/2016	Heard:	19 APRIL AND 8 JULY 2016
Coram:	MS F CHILD (MEMBER)	Delivered:	27/07/16
No of pages:	35	Judgment Part:	1 of 1
Result:	Public Advocate appointed limited guardian Public Trustee appointed plenary administrator Enduring power of attorney revoked Enduring power of guardianship revoked
Category:	B
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Parties:	FH
Catchwords:	Guardianship and administration Applications for appointment of a guardian and an administrator and intervention in an enduring power of guardianship Represented person with memory impairment but no diagnosed condition Whether a person for whom orders may be made Finding memory impairment to be a mental disability Need for orders Conflict of interest between attorney and enduring guardian appointed under an enduring power of attorney and under enduring power of guardianship and the represented person Not in best interests of represented person that these powers continue to be exercised Public Advocate appointed guardian Public Trustee appointed administrator Enduring power of attorney and enduring power of guardianship revoked
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 43(1)(b), s 44(5), s 51, s 51(2)(d), s 51(2)(g), s 64, s 107, s 108, s 110H, s 110J, s 110(N)(1) State Administrative Tribunal Act 2004 (WA), s 47
Case References:	BFO &ORS and KPW 2014 WASAT 68 EW [2010] WASAT 91 FS [2007] WASAT 202 LGM [2016] WASAT 45 MH [2016] WASAT 80 Public Trustee and KMH [2008] WASAT 171 Re SB [2013] EWCOP 1417 XYZ v State Trustees Ltd [2006] VSC444,
Summary	The Tribunal appointed the Public Trustee and Public Advocate as plenary administrator and limited guardian respectively for FH, an elderly man with significant memory problems but no formal diagnosis. The Tribunal found that the presumption that FH was capable of managing his affairs and making reasonable judgments about his estate and his person was displaced by the evidence which included his presentation at hearings before the Tribunal. ,The Tribunal found that FH was in need of an administrator of his estate and a guardian as the enduring power of attorney and enduring power of guardianship he had executed in favour of his daughter S, were not operating in his best interests. His daughter, who was the donee of the powers, had made decisions which were not in his best interests and had interests which conflicted or potentially conflicted with FH's interests.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : FH [2016] WASAT 95 MEMBER : MS F CHILD (MEMBER) HEARD : 19 APRIL AND 8 JULY 2016 DELIVERED : 27 JULY 2016 PUBLISHED : 8 AUGUST 2016 FILE NO/S : GAA 861 of 2016

GAA 1608 of 2016

GAA 1614 of 2016

MATTER : FH

Represented Person

Catchwords:

Guardianship and administration - Applications for appointment of a guardian and an administrator and intervention in an enduring power of guardianship - Represented person with…

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: FH [2016] WASAT 95
Case: [2016] WASAT 95
Decision Date: 8 AUGUST 2016

CaseChat Overview and Summary

The case involved an individual with memory impairment, referred to as FH, and was heard in the Supreme Court of New South Wales. The dispute centred around the appointment of a guardian and an administrator for FH, as well as the intervention in an enduring power of guardianship and an enduring power of attorney. The primary parties were FH, the Public Advocate, and the Public Trustee, with FH's attorney and enduring guardian also being involved. The legal issues before the court were whether FH qualified for the appointment of a guardian and an administrator, and if so, whether it was in FH's best interests to revoke the existing enduring powers of attorney and guardianship.

The court examined whether FH's memory impairment constituted a mental disability, and if the need for orders outweighed the right to autonomy of the represented person. It was found that FH's memory impairment did qualify as a mental disability, and that it was in FH's best interests for the existing enduring powers to be revoked due to a conflict of interest between the attorney, the enduring guardian, and FH. The court also considered the potential for abuse of power by the attorney and the enduring guardian, and found that it was not in FH's best interests for these powers to continue to be exercised. As a result, the court made orders appointing the Public Advocate as a limited guardian and the Public Trustee as a plenary administrator for FH, and revoked the existing enduring powers of attorney and guardianship.

The court's decision was based on the findings that FH's memory impairment was a mental disability, and that the conflict of interest and potential for abuse of power by the attorney and the enduring guardian warranted the revocation of the existing enduring powers. The court also considered the potential for the Public Advocate and the Public Trustee to act in FH's best interests, and found that their appointment as guardian and administrator, respectively, was in FH's best interests. The final orders of the court were that the Public Advocate be appointed as a limited guardian, the Public Trustee be appointed as a plenary administrator, and the existing enduring powers of attorney and guardianship be revoked.

Orders

Orders of the court

Public Advocate appointed limited guardian

Public Trustee appointed plenary administrator

Enduring power of attorney revoked

Enduring power of guardianship revoked

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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