JW No 2 - [2019] WASAT 117

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   JW No 2 [2019] WASAT 117
MEMBER:   MS F CHILD, MEMBER
HEARD:   13 AUGUST 2019
DELIVERED          :   22 NOVEMBER 2019
FILE NO/S:   GAA 834 of 2019

JW
Represented Person

Catchwords:

Guardianship and Administration - Review of guardianship order - Moderate cognitive impairment - History of hospital admission for malnutrition - Application for the appointment of administrator of estate - Enduring power of attorney and Enduring power of guardianship not less restrictive alternatives to orders - Attorney benefitted financially and had not acted protectively under the power - Enduring guardian in position of conflict as guardian - Family conflict - Public Advocate confirmed as limited guardian - Public Trustee appointed plenary administrator - Enduring powers revoked

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 43(2)(c), s 44(2)(b), s 51(2), s 51(2)(g), s 64, s 65, s 108, s 110F, s 110H, s 110ZD

Result:

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

Category: B

Representation:

Counsel:

Represented Person

Solicitors:

Represented Person

N/A

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

EW [2010] WASAT 91

REASONS FOR DECISION OF THE TRIBUNAL:

These are the reasons of the Tribunal for decisions made on review of a guardianship order made for JW and on an application for the appointment of an administrator of her estate and for intervention in an enduring power of guardianship made by her in 2016.

The applications before the Tribunal

An application seeking the appointment of a guardian for JW and for the appointment of an administrator of her estate was made in March 2019 by the social worker (the applicant) from a hospital where JW had been an inpatient since January 2019.
When those applications were first heard by the Tribunal on 9 May 2019, the applicant also made an oral application for intervention in an enduring power of guardianship (EPG) made by JW.

Background

JW is an 89‑year‑old woman who was widowed in March 2016. JW has three adult children A, L and C. Following her spouse's death JW sold her home and moved to live with C. JW is reported to have had limited contact with L and A since then.
JW executed an enduring power of attorney (2016 EPA) and enduring power of guardianship (EPG) on 24 October 2016 by which she appointed C as her sole attorney and enduring guardian. The witnesses to these instruments were solicitors and the 2016 EPA was styled to be in effect from its execution.
The material filed with the applications for the appointment of a guardian and administrator for JW disclosed that in January 2019 JW had been admitted to hospital suffering severe malnutrition with electrolyte imbalance and at risk of refeeding syndrome.
The health professionals reported that it was likely that JW's condition had been present for some weeks prior to her admission to hospital when she…

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 JW No 2

Details

AGLC: JW No 2 [2019] WASAT 117
Case: [2019] WASAT 117
Decision Date: 22 NOVEMBER 2019

CaseChat Overview and Summary

The case of JW No 2 involved the Public Advocate seeking to be appointed as the limited guardian of the estate of a person with moderate cognitive impairment. The applicant argued that the respondent, who held an enduring power of attorney and an enduring power of guardianship, was not a less restrictive alternative to guardianship orders due to a history of hospital admission for malnutrition and the respondent's financial benefit from the powers. The respondent had not acted protectively under the power and was in a position of conflict as the enduring guardian. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether the respondent was a less restrictive alternative to a guardianship order, whether the respondent had acted in a manner that was protective of the applicant, and whether the respondent was in a position of conflict as the enduring guardian. The court also had to consider whether the appointment of the Public Advocate as a limited guardian was appropriate and whether the Public Trustee should be appointed as the plenary administrator of the applicant's estate.

The court found that the respondent had not acted in a manner that was protective of the applicant and had financially benefitted from the powers. The court also found that the respondent was in a position of conflict as the enduring guardian due to family conflict. The court appointed the Public Advocate as the limited guardian and the Public Trustee as the plenary administrator of the applicant's estate. The court revoked the enduring powers held by the respondent.

The court ordered that the Public Advocate be appointed as the limited guardian of the applicant's estate and that the Public Trustee be appointed as the plenary administrator. The court also revoked the enduring powers held by the respondent. The court's decision provides guidance on the appointment of guardians and administrators in cases involving moderate cognitive impairment and conflicting interests.

Orders