JCM - [2018] WASAT 126

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   JCM [2018] WASAT 126
MEMBER:   MS F CHILD (MEMBER)
HEARD:   22 AUGUST 2018
DELIVERED          :   20 NOVEMBER 2018
FILE NO/S:   GAA 2013 of 2018
GAA 2347 of 2018
JCM
Represented Person

Catchwords:

Guardianship and Administration - Competing applications for the appointment of guardian - Applications for intervention in an enduring power of guardianship and enduring power of attorney - Dementia diagnosis - Conflict between spouse and adult children of represented person - Enduring power of guardianship invalid as represented person not of full legal capacity at time of execution - Need for guardian - No need for appointment of administrator as no evidence existing enduring power of attorney not operating to meet needs - Joint appointments of spouse and Public Advocate as guardians

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43(1), s44(1)(b), s 44(5), s 51(2)(g), s 64(1), s 71(2), s 104, s 107, s 109, s 109(1)(a), s109(1)(c), s 110B, s 110J, s 110K, s 110N, s 110ZD, Pt 9, Pt 9A, Sch 2, Pt B, cl(e), cl(f)

Result:

Guardians appointed
Applications dismissed

Category: B

Representation:

Counsel:

Represented Person

Mr D Kirchner

Solicitors:

Represented Person

Templar Legal

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

EW [2010] WASAT 91

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These are the reasons for the decisions made in respect of applications made under the Guardianship and Administration Act 1990 (WA) (the GA Act) for JCM (the represented person) announced on 22 August 2018 following a hearing on that day.

Background

The represented person is a 94-year-old man with multiple health problems. At the time of the hearing he was a patient in hospital and attended part of the hearing by telephone.
The represented person's first wife died in 1984. He has four children of that marriage; C, J, P and D (the children). The represented person married L in 2001 and they hold two properties in their joint names; a holiday house in the country and their home in the metropolitan area.
The represented person executed an enduring power of attorney (EPA) in 2015 appointing L as his attorney.
Up until May 2018 the represented person lived with and was cared for by L in their home. On 13 May 2018 L suffered a broken hip and was hospitalised. L arranged for her daughter DM to care for the represented person. His children say that the represented person did not want to remain with DM and they took him to D's home.
On 22 May 2018 the children arranged for a referral of the represented person to a geriatrician, Dr M, for assessment of his capacity.
When L was discharged from hospital on 26 May 2018 she says she asked that the represented person be returned to her care but this did not occur.
L says that repeated requests for the represented person to be returned to her were refused and contact…

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: JCM [2018] WASAT 126
Case: [2018] WASAT 126
Decision Date: 20 NOVEMBER 2018

CaseChat Overview and Summary

The case before the court involved competing applications for the appointment of a guardian for an individual diagnosed with dementia. The represented person, a 94-year-old woman, had been living with her husband, the first applicant, for 76 years. She had two adult children, the second and third applicants, who sought to intervene in an enduring power of attorney and an enduring power of guardianship. The first applicant, the husband, sought to be appointed as the sole guardian of the represented person, while the second and third applicants sought to be appointed as joint guardians. The court was required to determine which of the applicants should be appointed as the guardian of the represented person.

The legal issues before the court included whether the enduring power of guardianship was validly executed by the represented person and whether there was a need for a guardian to be appointed. The court also had to determine whether there was a need for an administrator to be appointed in respect of the represented person's property, and if so, who should be appointed. The court considered the evidence of medical experts, who diagnosed the represented person with dementia, and the evidence of the applicants, who provided conflicting accounts of the represented person's mental capacity at the time the enduring powers were executed.

The court held that the enduring power of guardianship was invalid as the represented person was not of full legal capacity at the time of execution. The court found that the represented person had dementia and was unable to understand the nature and effect of the document. The court also found that there was a need for a guardian to be appointed to meet the represented person's needs, and that the husband and the Public Advocate should be appointed as joint guardians. The court found that there was no need for an administrator to be appointed as the existing enduring power of attorney was not operating to meet the represented person's needs. The court made orders appointing the husband and the Public Advocate as joint guardians of the represented person.

Orders