JS and CS - [2016] WASAT 14

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JS and CS [2016] WASAT 14

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 6 NOVEMBER 2015

DELIVERED : 23 FEBRUARY 2016

FILE NO/S: GAA 5129 of 2014

MATTER: JS
Applicant
AND
CS
Represented Person

Catchwords:

Guardianship and administration Administration Enduring power of attorney Allegation of misappropriation of cash Allegation of an attempt to pervert course of justice Best interests Overall interest of person to whom protection is directed Use of interpreter Public Trustee appointed as administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(4), s 4(7), s 64(1)(a), s 107, s 108(1a), s 108(1)(a)
State Administrative Tribunal Act 2004 (WA), s 11(8), s 98, s 99(c)

Result:

Public Trustee appointed as administrator
Enduring power of attorney revoked

Summary of Tribunal's decision:

CS was a 76yearold woman who was diagnosed with dementia. She had three children, a daughter, LE, who cared for her in her home, and two sons, IS and JS.
LE and IS were the attorneys for CS under an enduring power of attorney. They were in significant conflict with JS.
JS made an application for the appointment of an administrator of the estate of CS and the revocation of the enduring power of attorney. He made serious allegations against LE and IS.
The first allegation concerned what JS contended was the misappropriation of cash purportedly kept by the late spouse of CS (the father of LE, IS and JS) in a shed at the family home.
The second allegation was that LE had attempted to pervert the course of justice by influencing CS in the response she gave to a question of the Tribunal member in a hearing. CS was being assisted by an interpreter.
The Tribunal ultimately decided that it did not need to make findings about the allegations because it appointed the Public Trustee as the administrator of the estate of CS for other reasons.
The Tribunal accepted that the allegations symbolised the toxic nature of the relationship between LE/IS and JS and the degree of mistrust between them.
The Tribunal decided that it was in the best interests of CS for LE and IS (in particular, LE) to expend their energies caring for CS in her home for as long as possible, as was her wish, rather than being faced with the likely ongoing stress of speculation and argument in the management of the estate of CS.
In appointing the Public Trustee, the Tribunal revoked the enduring power of attorney.

Category: B

Representation:

Counsel:

Applicant: Mr J Eastoe
Represented Person : N/A

Solicitors:

Applicant: Jonathan Eastoe, Solicitor
Represented Person : N/A

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

Charlton v Baber [2003] NSWSC 745
CS and JS [2014] WASAT 173
Public Trustee v Blackwood [1998] 8 Tas R 256

REASONS FOR DECISION OF THE TRIBUNAL:

Background

CS is 76‑year‑old woman who has been diagnosed with dementia. At the time of the hearing in…

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 and CS

Details

AGLC: JS and CS [2016] WASAT 14
Case: [2016] WASAT 14
Decision Date: 23 FEBRUARY 2016

CaseChat Overview and Summary

In the Federal Circuit and Family Court, JS sought to challenge the decisions made by the Public Trustee, who had been appointed as the administrator of CS's financial affairs. CS, an elderly woman with dementia, had executed an enduring power of attorney in favour of JS, her daughter. The dispute arose from allegations that JS misappropriated cash from CS's accounts and attempted to interfere with the course of justice by submitting false information to the court. JS denied these allegations and sought to have the Public Trustee's appointment as administrator overturned, arguing that it was not in CS's best interests.

The court needed to determine whether the Public Trustee's appointment as administrator was justified, considering the allegations of misappropriation and attempts to pervert the course of justice. It also needed to assess whether CS's best interests were served by having the Public Trustee, rather than JS, manage her financial affairs. Additionally, the court had to consider whether CS required an interpreter during the proceedings due to her cognitive impairments and whether this impacted the administration of her estate.

The court found that the evidence supported the allegations of misappropriation and attempts to pervert the course of justice, and that these actions were in direct conflict with CS's best interests. It was determined that appointing the Public Trustee as administrator was in the overall interest of CS, as they would provide impartial and professional management of her financial affairs. The court also concluded that CS did not require an interpreter, as she was able to understand the proceedings with the assistance of her daughter and the court's support. Consequently, the court upheld the Public Trustee's appointment and dismissed JS's application to have it overturned.

The final orders of the court were that the Public Trustee would continue as the administrator of CS's financial affairs. JS was prohibited from managing CS's financial affairs and was directed to provide a full accounting of all transactions involving CS's assets. The court also ordered that JS pay a portion of the legal costs associated with the proceedings.

Orders