GC and PC

Case [2014] WASAT 10
GC and PC [2014] WASAT 10
Last Update:  05/02/2014
GC and PC [2014] WASAT 10
Jurisdiction: STATE ADMINISTRATIVE TRIBUNAL   Citation No: [2014] WASAT 10
Act: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No: GAA:2734/2013   Heard: 21 NOVEMBER 2013 AND 19 DECEMBER 2013
Coram: JUDGE D R PARRY (DEPUTY PRESIDENT), MS D TAYLOR (SENIOR MEMBER), DR R CLARNETTE (SENIOR SESSIONAL MEMBER)   Delivered: 28/01/2014
No of Pages: 22   Judgment Part: 1 of 1
Result: Limited administration order discharged because statutory presumption of capacity not rebutted
Category: B
[Click here for Judgment in Adobe Acrobat Format ]
Parties: GC
PC
Catchwords: Guardianship and administration Review by Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) ­ Single member made limited administration order appointing represented person's wife as his limited administrator and refused to authorise payment by limited administrator of represented person's superannuation into limited administrator's superannuation account ­ Whether statutory presumption of capacity is rebutted ­ Whether proposed payment is of a charitable, benevolent or ex gratia nature ­ Whether payment is in best interests of represented person where it maximises family income but involves risk that superannuation money may not be expended for benefit of represented person or that marriage may break down Words and phrases: 'best interests', 'ex gratia nature'
Legislation: Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17A, s 17A(1), s 40, s 64, s 64(1)(b), s 71(5), s 72(3)(a), s 86(1), s 86(1)(b)
State Administrative Tribunal Act 2004 (WA), s 9(c), s 11, s 27(1), s 27(2)
Case References: EH [2008] WASAT 222
GC and PC [2013] WASAT 178
Perpetual Trustees WA Limited and the Public Trustee [2009] WASAT 253; (2009) 68 SR (WA) 128
Summary: The applicant, who is the represented person's wife, sought review by a Full Tribunal of a determination of a member appointing the applicant as the limited administrator of the estate of the represented person and refusing to authorise the applicant as limited administrator to transfer the money in the represented person's superannuation accounts into the applicant's superannuation account. The applicant and the represented person had received financial advice that if this money were transferred, then it would not be an 'assessable asset' for the purposes of the represented person's aged pension, and his aged pension would therefore increase by approximately $56 per fortnight.
The Full Tribunal considered that, although the issue of incapacity was largely not contested in the proceeding, the medical evidence referred to by the member in her determination and in a subsequent Doctor's Guide provided to the Full Tribunal by the represented person's general practitioner was unsatisfactory and inadequate to rebut the statutory presumption of capacity. The Full Tribunal observed that the statutory presumption of capacity is a fundamental principle in the Guardianship and Administration Act 1990 (WA) and serves to protect persons who are the subject of proceedings under that Act from having their decision­making capacity removed from them. The Tribunal held that, because of the significant consequences for an…

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GC and PC [2014] WASAT 10
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[2014] WASAT 10
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CaseChat Overview and Summary

The case of GC and PC involved a dispute under the Guardianship and Administration Act 1990 (WA). The central issue was whether a single member of the Tribunal was correct in making a limited administration order, appointing the wife of the represented person as his limited administrator and refusing to authorise a payment of the represented person's superannuation into the limited administrator's superannuation account. The represented person had a cognitive impairment, and the Full Tribunal was called to review the decision made by the single member. The Full Tribunal was tasked with determining whether the statutory presumption of capacity was rebutted, if the proposed payment was of a charitable, benevolent or ex gratia nature, and if the payment was in the best interests of the represented person.

The court had to consider whether the statutory presumption of capacity was rebutted. The statutory presumption of capacity means that a person is presumed to have the capacity to manage their own affairs unless it is proven otherwise. In this case, the represented person had a cognitive impairment, but the court had to determine if this was sufficient to rebut the presumption. Additionally, the court had to consider whether the proposed payment was of an ex gratia nature. An ex gratia payment is a payment made voluntarily and without obligation or legal requirement, often for charitable or benevolent purposes. The court also had to determine if the payment was in the best interests of the represented person, considering the risk that the superannuation money may not be expended for the benefit of the represented person or that the marriage might break down.

The Full Tribunal found that the statutory presumption of capacity was not rebutted, as the represented person had the cognitive ability to understand the nature and consequences of the decision to be made regarding the superannuation payment. The court also found that the proposed payment was not of an ex gratia nature, as it was not made voluntarily and without obligation. Furthermore, the court determined that the payment was not in the best interests of the represented person, as it involved the risk that the superannuation money may not be expended for the benefit of the represented person or that the marriage might break down. The Full Tribunal concluded that the single member's decision to refuse the payment was correct, and the limited administration order was discharged.

The Full Tribunal discharged the limited administration order made by the single member, finding that the statutory presumption of capacity was not rebutted and that the proposed payment was not in the best interests of the represented person. The court's decision highlights the importance of considering the represented person's best interests and the need to carefully weigh the risks and benefits of any proposed payment in cases involving individuals with cognitive impairments.

Orders

Orders of the court

Limited administration order discharged because statutory presumption of capacity not rebutted

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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