JS - [2018] WASAT 120

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   JS [2018] WASAT 120
MEMBER:   MS F CHILD (MEMBER)
HEARD:   3 AUGUST 2018, 4 SEPTEMBER 2018 AND 7 SEPTEMBER 2018
DELIVERED          :   7 NOVEMBER 2018
FILE NO/S:   GAA 795 of 2018
GAA 796 of 2018
JS
Represented Person
JNS
Applicant
L
Interested Party

Catchwords:

Guardianship and Administration Applications for the appointment of guardian and administrator and for intervention in enduring power of guardianship and enduring power of attorney - Evidence of incapacity at time instruments made - Dementia Capacity - Need for orders - Informal arrangements insufficient to meet needs - Suitability for appointment Need for independent oversight of care needs and of the estate - Enduring powers of attorney and guardianship revoked - Public Advocate appointed limited guardian - Public Trustee appointed plenary administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(4), s 40, s 43(1), s 44, s 44(1)(b), s 51(2)(d), s 51(2)(g), s 64(1), s 68, s 76, s 97(1)(a), s 104, s 104(1)(a), s 107, s 107(1), s 108, s 109, s 109(1)(c), s 110B, s 110E, s 110E(1)(c), s 110H(a), s 110J, s 110K, s 110N, s 110ZD, Pt 9, Pt 9A

Result:

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

Category: B

Representation:

Counsel:

Represented Person	:	Ms Taylor
Applicant	:	In Person
Interested Party	:	Mr Hedges

Solicitors:

Represented Person	:	Lavan Legal
Applicant	:	N/A
Interested Party	:	Kavanagh Legal

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

Burns v Corbett [2018] HCA 15
GS [2018] WASAT 72

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

JS is an 85-year-old woman with a diagnosis of a dementia. On 6 March 2018, JNS, the sister of JS, (the applicant) filed applications with the Tribunal seeking the appointment of a guardian and administrator for JS (the represented person) pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (the GA Act) and pursuant to s 110N and s 109(1)(c)of the GA Act for revocation or variation of an enduring power of guardianship (EPG) and an enduring power of attorney (EPA).
The applicant is a resident of New South Wales and had been appointed by the represented person together with the represented person's daughter, L, as the represented person's joint and several attorney under an EPA dated 29 November 2013 and together with L as her joint enduring guardian under an EPG dated 28 March 2016.
Although initially proposing herself for appointment, by email dated 14 March 2018, the applicant proposes the Public Advocate be appointed as the guardian of the represented person and confirmed in the hearings before the Tribunal that she proposes the Public Trustee be appointed as administrator of the represented person's estate.
The background of the applications is that in February 2018 the represented person was hospitalised and the joint enduring guardians, the applicant and L disagreed about the plan…

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 JS

Details

AGLC: JS [2018] WASAT 120
Case: [2018] WASAT 120
Decision Date: 7 NOVEMBER 2018

CaseChat Overview and Summary

The matter before the court involved an application for the appointment of a guardian and administrator for an individual, JS, who was alleged to be suffering from dementia. The case required the court to determine whether JS was incapacitated and, if so, who should be appointed to manage her care and estate. The court was also asked to consider whether the existing enduring powers of attorney and enduring power of guardianship should be revoked and replaced with statutory appointments.

The legal issues centred on the capacity of JS at the time the enduring powers were made, the adequacy of informal arrangements for her care and estate, and the necessity for independent oversight. The court had to assess whether JS's dementia had rendered her incapable of managing her affairs and whether she required a statutory guardian and administrator to ensure her needs were met. Additionally, the court needed to determine whether the existing enduring powers should be revoked and replaced with statutory appointments to provide the necessary oversight.

The court found that JS was indeed incapacitated due to her dementia and that informal arrangements were insufficient to meet her needs. The existing enduring powers were revoked, and the Public Advocate was appointed as a limited guardian to manage JS's care, while the Public Trustee was appointed as a plenary administrator to manage her estate. The court concluded that independent oversight was necessary to ensure that JS's care needs and estate were properly managed. The court's decision provided JS with the statutory support required to manage her affairs effectively.

The court made orders revoking the existing enduring powers of attorney and enduring power of guardianship. It appointed the Public Advocate as a limited guardian to manage JS's care and the Public Trustee as a plenary administrator to manage her estate. The court also made ancillary orders to facilitate the transition of care and estate management to the new statutory appointees.

Orders