G and N - [2009] WASAT 99

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: G and N [2009] WASAT 99

MEMBER: MS J TOOHEY (SENIOR MEMBER)
MR J MANSVELD (MEMBER)
MS S GILLETT (SENIOR SESSIONAL MEMBER)

HEARD: 5 MAY 2009 AND 6 MAY 2009

DELIVERED : 15 MAY 2009
Edited reasons delivered orally on 15 MAY 2009

FILE NO/S: GAA 2521 of 2008
GAA 2587 of 2008
GAA 1036 of 2009

BETWEEN: G
Applicant
AND
N
Represented Person

Catchwords:

Administration - Guardianship - Conflict between children and stepchildren - Agreement between parties that Enduring Powers of Attorney should be revoked - Whether attorney should be required to file records and accounts - Tribunal satisfied that attorney had kept records and accounts - Satisfactory accounts of dealings and transactions - Attorney not required to produce records and accounts to Tribunal and applicant - Wishes of the proposed represented person - Appointment of family members as administrator unworkable on account of conflict - Public Trustee appointed administrator - Applicant appointed guardian - Direction to consult with other family members

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 44(1), s 44(2), s 43, s 64(1), s 68(1), s 68(3), s 107(1)(a), s 107(1)(b), s 108(1a), s 109, s 119

Result:

Public Trustee appointed plenary administrator
Applicant appointed limited guardian
The enduring powers of attorney revoked

Category: B

Representation:

Counsel:

Applicant: Mr A Hershowitz
Represented Person : Ms E Needham

Solicitors:

Applicant: Metaxas & Hager
Represented Person : Paynes

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant sought orders under the Guardianship and Administration Act 1990 (WA) concerning her elderly father, N, who had dementia.
The applicant sought orders that she be appointed guardian and administrator for N and that an enduring power of attorney by which he had appointed his step-son his attorney be revoked. She also sought an order that the step-son produce records and accounts of dealings and transactions he had undertaken as attorney.
The step-son had assisted N over many years and the applicant had become involved in his affairs only recently.
There was conflict between the applicant and her sister on the one hand, and N's step-children on the other. However, they agreed that N was no longer capable of managing his estate and needed someone to act on his behalf. They agreed that an enduring power of attorney by which N appointed his step-son, and a later enduring power of attorney by which he appointed the applicant, should be revoked. The stepson had acted pursuant to the power for several years; the applicant had not exercised her powers. Each proposed their own appointment as administrator.
The applicant questioned dealings and transactions by the step-son as attorney and sought records and accounts. The Tribunal accepted the step-son's explanations for the transactions. It was satisfied he had kept records and acted properly in exercising his powers as attorney. It did not accept that he should…

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 G and N

Details

AGLC: G and N [2009] WASAT 99
Case: [2009] WASAT 99
Decision Date: 15 MAY 2009

CaseChat Overview and Summary

G and N involved a dispute between family members regarding the guardianship and administration of an elderly individual. The matter was heard in the Family Court of Australia. The primary issue for the court was whether the Enduring Powers of Attorney held by certain family members should be revoked, and if so, whether the attorney should be required to file records and accounts with the Tribunal. Additionally, the court had to consider the best interests of the proposed represented person and determine if family members could be appointed as administrators given the existing conflicts between them.

The court examined the agreement among the parties that the Enduring Powers of Attorney should be revoked. It was necessary to assess whether the attorney should be compelled to file records and accounts with the Tribunal and the applicant. The Tribunal had already been satisfied that the attorney had maintained the records and accounts. The court also reviewed whether the accounts provided by the attorney were satisfactory in detailing the dealings and transactions concerning the proposed represented person. Ultimately, the court found that the attorney was not required to produce the records and accounts to the Tribunal and the applicant.

In considering the wishes of the proposed represented person, the court noted that appointing family members as administrators was unworkable due to the existing conflict between them. Consequently, the court appointed the Public Trustee as the administrator. The applicant was appointed as the guardian. The court directed that the Public Trustee consult with other family members regarding the administration and the proposed represented person's wishes. This decision balanced the interests of the proposed represented person with the practicalities of family dynamics.

Orders