GC [2017] WASAT 80

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 80
Published:	02/06/2017
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1036/2017	Heard:	24 MAY 2017
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	29/05/17
No of pages:	17	Judgment Part:	1 of 1
Result:	Applications for making of guardianship and administration orders are dismissed
Category:	B
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Parties:	GC
Catchwords:	Guardianship and administration Presumption of capacity Capacity to make reasonable judgments about personal and financial matters Alzheimer's disease Dementia Delirium Tribunal to feel an actual persuasion that evidence rebuts presumption of capacity Clear and cogent evidence needed Vulnerability to influence not of itself determinative of incapacity Enduring power of attorney Enduring power of guardianship
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 84, s 97(1)(b)(iii)
Case References:	GC and PC [2014] WASAT 10 Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 Medical Board of Australia and Bowles [2014] WASAT 115 S -v- State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
Summary	GC is an 89yearold woman who has been diagnosed with Alzheimer's disease.,Applications for guardianship and administration orders had been made in respect of GC by two of her children, the son, PC, and the daughter, DF.,GC had four children, the applicants who lived in Western Australia and another son, BC, and daughter, LF, both of whom lived in the United Kingdom.,The applications were made pursuant to the Guardianship and Administration Act 1990 (WA).,The most prominent issue before the Tribunal was whether GC was capable of making her own personal and financial decisions.,There was a dispute between GC's children who lived in Western Australia and the children who lived in the United Kingdom. The dispute centred on where GC should live once she was discharged from hospital.,GC was clear in her wish that she wanted to return to the United Kingdom under the care of BC and LF. PC and DF were opposed to this move and were of the view that GC should remain in Western Australia and be cared for in an aged care facility.,After considering all the evidence, including that of the Consultant Geriatrician in charge of the hospital medical team, the Tribunal found that the presumption of capacity had not been rebutted.,There was insufficient evidence of a clear and cogent nature to warrant a finding of incapacity.,The evidence also indicated that GC was capable of making an enduring power of attorney and enduring power of guardianship.,The applications for the making of guardianship and administration orders were therefore dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : GC [2017] WASAT 80 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 24 MAY 2017 DELIVERED : 29 MAY 2017 PUBLISHED : 2 JUNE 2017 FILE NO/S : GAA 1036 of 2017 MATTER :

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: GC [2017] WASAT 80
Case: [2017] WASAT 80
Decision Date: 29 MAY 2017

CaseChat Overview and Summary

The matter before the court involved GC, an individual diagnosed with Alzheimer's disease, dementia, and delirium. The dispute centred on whether GC retained the capacity to make reasonable judgments about personal and financial matters. The application for guardianship and administration orders was brought by a family member, seeking to have GC declared incapable of managing their own affairs. The case was heard in the Supreme Court of Queensland.

The central legal issue before the court was whether the evidence presented was sufficient to rebut the presumption of capacity. The court had to determine if GC could make reasonable judgments about personal and financial matters, despite their medical conditions. The court also had to consider the role of vulnerability to influence in assessing capacity and whether it was a sufficient basis to declare incapacity. Furthermore, the court needed to evaluate the evidence regarding GC's ability to understand and manage their affairs, and whether an enduring power of attorney or an enduring power of guardianship should be appointed.

The court found that the evidence did not rebut the presumption of capacity. It held that GC was capable of making reasonable judgments about personal and financial matters. The court emphasised that the tribunal must feel an actual persuasion that the evidence rebuts the presumption of capacity, and this must be demonstrated by clear and cogent evidence. It was noted that vulnerability to influence was not of itself determinative of incapacity. The court also considered the impact of GC's medical conditions on their ability to understand and manage their affairs but found that these conditions did not necessarily mean that GC was incapable of making reasonable judgments. Given this conclusion, the court dismissed the applications for making guardianship and administration orders.

Orders

Orders of the court

Applications for making of guardianship and administration orders are dismissed

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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