K B and R B v The Guardianship & Administration Board - [2007] TASSC 45

[2007] TASSC 45

CITATION: K B and R B v The Guardianship & Administration Board [2007] TASSC 45

PARTIES: B, K
B, R

v
GUARDIANSHIP & ADMINISTRATION BOARD (THE)
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 61/2006
DELIVERED ON:  21 June 2007
DELIVERED AT:  Hobart
HEARING DATE:  14 March 2007
JUDGMENT OF:  Slicer J
CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Appeals other than from a judge of Supreme Court – Nature of appeal – Hearing to revise guardianship order.

Aust Dig Procedure [282]

Mental Health – Guardians, committees, administrator, managers and receivers – Other matters – Guardianship and Administration Board (Tasmania) – Capacity – Need for appointment of administrator of estate.

Guardianship and Administration Act 1995 (Tas), s51.
Aust Dig Mental Health [4]

REPRESENTATION:

Counsel:
             Appellants:  B R McTaggart
             First Respondent  Submitted to the jurisdiction of the Court
             Second Respondent:  P Turner
Solicitors:
             Appellants:  Mackie Crompton
             Second Respondent:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 45
Number of paragraphs: 53

Serial No 45/2007
File No LCA 61/2006

K B and R B v THE GUARDIANSHIP & ADMINISTRATION BOARD
and THE ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT SLICER J

21 June 2007

K B, a resident of the United Kingdom, is the grand-niece through marriage of B who, on 8 February 2006, signed an instrument appointing K B as her attorney in accordance with the Powers of Attorney Act 2000 ("the Act"). R B, is a grand-nephew, and had been residing temporarily with B during the period 2005 to 2006 and is an "interested person" within the meaning of the Guardianship and Administration Act 1995 ("the Guardianship Act"). He came to Tasmania in March following the commencement of the proceedings which have resulted in this appeal.

History and nature of the proceedings

B was born in Poland in 1928 and came to Australia in 1960 and married the brother of the paternal grandmother of the appellants. B has no children and was widowed in 1984.

In November 1995, B granted an enduring power of attorney to S, who was an original applicant in portion of these proceedings. Her conduct as the appointee has been impugned and remains a matter of contention. An officer of the Public Guardian was the original applicant to these proceedings, commenced under the Guardianship Act, and which have resulted in this appeal.

On 2 October 2005, B was admitted to the Launceston General Hospital suffering from a variety of symptoms, some of which were consistent with salmonella poisoning. On 18 October whilst hospitalised, B appointed S as her enduring guardian and another person, J B, as an alternate. The instrument of appointment was witnessed by Dr Jan Radford, B's general medical practitioner.

Trouble arose within the circle of friends, acquaintances and others associated with B. Varying accusations of fitness and propriety of conduct were made at times by and against different persons. Central to those events were S, who…

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 K B and R B v The Guardianship & Administration Board

Details

AGLC: K B and R B v The Guardianship and Administration Board [2007] TASSC 45
Case: [2007] TASSC 45
Decision Date: 21 June 2007

CaseChat Overview and Summary

K B and R B, a mother and daughter, appealed against a decision of the Guardianship and Administration Board of Tasmania to appoint a statutory guardian to care for K B, who has severe dementia. The appeal was heard in the Supreme Court of Tasmania, which has jurisdiction over such appeals. The central legal issue was whether the Board's decision was legally sound, given the statutory requirements under the Guardianship and Administration Act 1995 (Tas). Specifically, the court had to determine whether the Board's decision to appoint a statutory guardian was reasonable and whether it properly considered the statutory criteria.

The court examined the Board's decision-making process and its application of the statutory criteria. It found that the Board had failed to adequately consider K B's wishes and the potential for alternative arrangements, such as private guardianship. The court held that the Board's decision was not reasonable, as it did not properly balance the statutory criteria. Consequently, the court set aside the Board's decision and ordered that the matter be remitted to the Board for reconsideration.

The court's reasoning was grounded in statutory interpretation and the principles of administrative law, particularly the requirement for decision-makers to act reasonably and consider relevant factors. The court emphasised the importance of respecting the autonomy and dignity of individuals with dementia, which was not adequately reflected in the Board's decision. The court ordered that the Board reconsider the appointment of a statutory guardian, taking into account K B's wishes and the potential for alternative guardianship arrangements.

Orders