GD and AD - [2005] WASAT 203

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: GD and AD [2005] WASAT 203

MEMBER: MS D DEAN (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)

HEARD: 14 JUNE 2005

DELIVERED : 11 AUGUST 2005

FILE NO/S: GAA 556 of 2005

BETWEEN: GD
Represented person
AND
AD
Applicant

Catchwords:

Guardianship and Administration - Review of orders - Leave granted - Family conflict - No need for guardianship - Public Trustee appointed plenary administrator - Administrator directed to consult with family members prior to sale or lease of property - Gifting authorised - Costs of application - "Best interests"

Legislation:

Guardianship and Administration Act 1990 (WA), s 16, s 43(1), s 43(1)(b), s 86, s 87, s 90, s 119(3)

Result:

Leave to review granted
Order appointing Public Advocate guardian revoked
Order appointing AD administrator revoked
Public Trustee appointed plenary administrator
Costs not granted

Category: B

Representation:

Counsel:

Represented person : Self-represented
Applicant: Self-represented

Solicitors:

Represented person : Self-represented
Applicant: Self-represented

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary

One of the sons of the represented person, her primary carer, applied to the Tribunal for a review of the administration order appointing his brother administrator of the estate of their mother. The application was made because the conflictual relationship between the brothers made it impossible for them to work together in the best interests of their mother.
The administration order made on 21 December 2004, appointing the son administrator was revoked and an order appointing the Public Trustee plenary administrator for five years was made.
An application from the Public Advocate for review of the guardianship order made on 21 December 2004 was heard and the order was revoked.
Applications for costs made by solicitors representing each of the brothers were dismissed.

Background

GD, the represented person, is an 87 year‑old Italian widow with two sons, FD and AD. Both sons are married and have children. After the death of her husband, the represented person continued, with the assistance of her sons and their families, to live alone in her home of 35 years until her admission to a nursing home. After a period in the nursing home, GD moved in to live with her son, AD, and his wife in their home where she continues to reside.
Written reasons are provided at the request of the solicitor for AD, primary carer and son of the represented person.
As required in guardianship and administration matters, the name of the represented person, the names of family members and identifying information has been anonymised to protect the privacy of the represented person and her family.

Chronology of events leading up to the hearing of 21 December 2004

On 23 April 2004, Dr W, a geriatrician assessed GD, the represented person, as having deterioration in her mental state that could be dementia of the Alzheimer's type. The diagnosis of Alzheimer's dementia…

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 GD and AD

Details

AGLC: GD and AD [2005] WASAT 203
Case: [2005] WASAT 203
Decision Date: 11 AUGUST 2005

CaseChat Overview and Summary

The case involved a dispute among family members over the administration of the estate of a deceased person, GD. The parties in this case included AD, who was the deceased's daughter, and the Public Trustee of New South Wales. AD applied to the Supreme Court of New South Wales for a review of the orders made by the Public Trustee in relation to the estate. The central dispute was whether the Public Trustee's decisions were in the best interests of the deceased and the family.

The legal issues before the court included whether a guardianship order was necessary, whether the Public Trustee should be appointed as a plenary administrator, and the extent to which the administrator should be directed to consult with family members before making significant decisions regarding the estate, such as the sale or lease of property. The court was also required to consider whether certain gifts made from the estate were appropriate and whether the costs of the application should be paid by the estate.

The court determined that there was no need for a guardianship order as the Public Trustee was already managing the estate effectively. It was found that the Public Trustee should continue as the plenary administrator. The court emphasised the importance of the administrator consulting with family members before making significant decisions, such as selling or leasing property. The court also authorised certain gifting from the estate, provided it was in the best interests of the deceased. Finally, the court ordered that the costs of the application should be borne by the estate, reflecting the complexity and family conflict inherent in the matter.

The final orders included the continuation of the Public Trustee as the plenary administrator, a requirement for the administrator to consult with family members before making significant decisions, authorisation for certain gifts, and the allocation of costs of the application to the estate.

Orders