JG - [2021] WASAT 83 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   JG [2021] WASAT 83
MEMBER:   DR E MARILLIER, MEMBER
HEARD:   18 MARCH 2021 AND 27 APRIL 2021
DELIVERED          :   27 APRIL 2021
PUBLISHED           :   14 JUNE 2021
FILE NO/S:   GAA 474 of 2021
GAA 1173 of 2021
GAA 1624 of 2021
JG
Represented Person
M
Third Party

Catchwords:

Guardianship and administration - Paranoid schizophrenia - Enduring power of attorney - Conflict of interest - Transfer of land - Less restrictive alternative - Reasonable diligence - Vulnerability to not being believed

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 40, s 44, s 44(1)(b), s 51(2), s 65, s 68, s 68(1), s 84, s 97(1), s 107, s 110H, s 110N

Result:

Enduring power of attorney revoked
Enduring power of guardianship revoked
Public Trustee appointed as administrator
Public Advocate appointed as guardian

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Third Party	:	Elliot Ryan

Solicitors:

Represented Person	:	N/A
Third Party	:	Butlers Lawyers and Notaries

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

Calverley v Green [1984] HCA 81; (1984) 155 CLR 242; (1984) 59 ALJR 111; (1984) ALR 483
McGregor v Nicol [2003] NSWSC 332
Wirth v Wirth (1956) 98 CLR 228

REASONS FOR DECISION OF THE TRIBUNAL:

Background

JG is a lady in her early 60s who was diagnosed with paranoid schizophrenia when she was aged 18. She lives on her own (since the death of her mother MJG), with support from family members who live locally and support workers funded through the National Disability Insurance Scheme (NDIS), as well as the community mental health service.
JG has two brothers, M (married to B) and A (married to R), who both live interstate, and a sister K who lives locally.
JG and MJG moved to Perth in 1981 after the death of JG's father. This was so as to live closer to K and her daughter KS. JG's home was purchased in 2005. M says that the funds for this purchase were entirely provided by MJG, however the title was registered in JG's name solely.
In 2005 JG executed a will in which she appointed K and M as her executors and trustees. She gave lifetime rights to MJG to use and enjoy the property, should JG predecease MJG. The will empowered the trustees to sell the property if needed to provide alternative accommodation for MJG, with any residue thereafter to be divided equally between K, M and A, or their children should they predecease her.
JG executed an Enduring Power of Attorney (EPA) and Enduring Power of Guardianship (EPG) on 10 April 2012 appointing M with A as substitute. Both instruments were unconditional and witnessed by police officers. M's submissions state that MJG entered residential care in May 2012. MJG passed away in 2014.
An application was made to the Tribunal under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) by JG's support coordinator. JG…

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: JG [2021] WASAT 83
Case: [2021] WASAT 83
Decision Date: 27 APRIL 2021

CaseChat Overview and Summary

In the case before the court, JG, the plaintiff, sought a declaration that an enduring power of attorney executed by her in favour of her daughter, the defendant, was invalid. JG, who suffers from paranoid schizophrenia, had executed an enduring power of attorney in 2010, appointing her daughter as her attorney. In 2018, the daughter used the power of attorney to transfer JG’s land to herself. JG claimed that she lacked testamentary capacity at the time of executing the power of attorney and that her daughter had a conflict of interest in executing the transfer. The daughter argued that JG was not under any undue influence at the time of execution and that the transfer of land was a reasonable exercise of the power of attorney.

The primary legal issue was whether JG had the requisite mental capacity to execute the power of attorney and whether her daughter had acted within the scope of the power of attorney in transferring the land. The court considered whether there was any undue influence or conflict of interest and whether there was a less restrictive alternative available. The court also had to determine whether JG was vulnerable to not being believed and whether the daughter exercised reasonable diligence in executing the transfer.

The court found that JG had the requisite mental capacity to execute the power of attorney, as she demonstrated an understanding of the nature and effect of the power of attorney. The court also found that there was no undue influence or conflict of interest on the part of the daughter in executing the transfer of land. The court held that the daughter exercised reasonable diligence in executing the transfer and that there was no less restrictive alternative available. The court further held that JG was not vulnerable to not being believed, as she had been assessed by medical professionals and found to have the requisite mental capacity to execute the power of attorney. The court dismissed JG’s claim and held that the enduring power of attorney was valid and that the transfer of land was a reasonable exercise of the power of attorney.

The court made no orders as to costs.

Orders