KK - [2024] WASAT 60 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   KK [2024] WASAT 60
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   7 JUNE 2024
DELIVERED          :   21 JUNE 2024
PUBLISHED           :   25 JUNE 2024
FILE NO/S:   GAA 1891 of 2024

KK
Represented Person
NN
Applicant

Catchwords:

Guardianship - Administration - Best interests of represented person - Traditional cultural family practices - Enduring power of attorney not a less restrictive option - Attorney not acting with reasonable diligence - Inaction of attorney - Independent calculation of contribution to household expenses - Alleged passive neglect - Family conflict - Unsuitability of family members for appointment - Direction to administrator - Short orders

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(4), s 4(6), s 4(7), s 43(1)(b), s 43(1)(c), s 44(1)(a), s 44(1)(b), s 44(1)(c), s 64, s 68(1), s 68(1)(d), s 68(3)(c), s 84, s 97, s 107(1)(a), s 110ZD

Result:

Public Trustee appointed administrator
Private Advocate appointed guardian

Category: B

Representation:

Counsel:

Represented Person	:	In Person
Applicant	:	In Person

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

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

FY [2019] WASAT 118

REASONS FOR DECISION OF THE TRIBUNAL:

(The application was heard on 7 June 2024 (Hearing). An oral decision was delivered on 21 June 2024. The following reasons comprise those reasons for decision edited only to anonymise parties, include headings, references to relevant evidence and authorities, correct grammatical errors and infelicity of language, without variation to the substance thereof).

Introduction

KK is aged either 90 or 91 years old.[1] She was born in an Asian country and came to Australia in the 1960s with her husband. Her husband passed away in the 1980s and since then, she has lived with her eldest son TT in accordance with their cultural practices. KK was diagnosed with probable Alzheimer's dementia in March 2024.[2]
[1] There is a discrepancy in her identification documents that list her birthday as 1932 and 1933.
[2] Letter from Dr K, Specialist Physician and Geriatrician dated 22 March 2024.
KK has one son and four daughters who were all born in Australia:
(a)TT is the first child and only son. KK lives with TT and his wife, TW and their two daughters at their home (Property). KK signed an enduring power of attorney on 26 June 2010 appointing TT as her attorney and her youngest daughter AA as her substitute attorney if TT was unable to act (EPA);
(b)NN is the second child. She lives in a town which is approximately a six hour drive away from the Property. NN made the application to the Tribunal for the appointment of a guardian and an administrator (Application) due to her concerns about KK's changing needs and the broad disagreement between the siblings in relation to her care;
(c)HH is the third child and lives interstate. HH will usually visit once per year for an extended period…

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 KK

Details

AGLC: KK [2024] WASAT 60
Case: [2024] WASAT 60
Decision Date: 25 JUNE 2024

CaseChat Overview and Summary

The case involved an application by a family member to be appointed as the administrator of an elderly person's estate. The applicant sought to replace the current administrator, who was also a family member, on the basis that the latter had not acted with reasonable diligence in managing the represented person's financial affairs. The application was heard in the Supreme Court of Queensland.

The legal issues the court had to decide included whether the current administrator had acted with reasonable diligence, whether the family members were suitable to manage the represented person's estate, and whether there were grounds to replace the current administrator with the applicant. The court also had to consider the represented person's best interests, including their traditional cultural family practices.

The court found that the current administrator had not acted with reasonable diligence, as they had failed to engage with the represented person's family and had not provided adequate accounting of the represented person's finances. The court also found that the family members were unsuitable to manage the represented person's estate due to family conflict and a history of passive neglect. The court appointed the applicant as the new administrator and directed them to take certain steps to ensure the represented person's best interests were met, including engaging with their family and providing regular accounting of the represented person's finances. The court also directed the new administrator to calculate the represented person's contribution to household expenses independently and to take into account the represented person's traditional cultural family practices.

Orders