KRM [2017] WASAT 135

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 135
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1094/2017	Heard:	21 APRIL, 14 SEPTEMBER AND 9 OCTOBER 2017
Coram:	MS C WALLACE (SENIOR MEMBER) MS M CONNOR (MEMBER) DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)	Delivered:	20/10/17
No of pages:	38	Judgment Part:	1 of 1
Result:	Guardianship application dismissed Public Trustee appointed as plenary administrator with directions
Category:	B
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Parties:	KRM
Catchwords:	Guardianship and administration Dementia Whether the statutory presumption of capability rebutted Questions of cognitive capability and need are distinct separate questions Capability is a medical question and need is a legal question Whether a need for administrator Financial exploitation Directions to administrator required
Legislation:	Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43(3)(1), s 43(1)(b), s 43(1)(c), s 44(1), s 44(2), s 51, s 64(1)(a), s 64(1)(b), s 64(3)(a), s 68(1), s 68(3), s 70, s 71(4), s 84(a), s 111
Case References:	Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 GYM [2017] WASAT 136 Ms G [2017] WASAT 108
Summary	This matter involved an application brought pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking the appointment of a guardian and an administrator for the represented person (KRM) who suffers from dementia. ,KRM contended that the statutory presumption of capability could not be displaced on the medical evidence and thus the Tribunal could not appoint either a guardian or administrator for him. The Tribunal received written and oral evidence from both a geriatrician, Dr Harper, and a neuropsychologist, Professor Foster. Dr Harper's view was that KRM suffered with dementia and lacked capability to make reasonable judgments in respect to financial and estate matters and also in respect of accommodation and services decisions. Professor Foster's detailed assessment also found that KRM suffered with dementia and presented with significant deficits in his executive functioning. Despite those assessment results, Professor Foster found that KRM could be supported to make 'assisted decisions' largely based on his view that KRM had the benefit of significant family support. However, at the hearing Professor Foster sought to change the conclusion in his report and stated that KRM lacked the capability to make complex financial/estate decisions. This is because Professor Foster, when presented with a more comprehensive factual background, formed the view that KRM did not have the option of 'assisted decisionmaking'. The Tribunal noted that but for Professor Foster confusing the questions of cognitive capacity with the legal question of need (and whether less restrictive options are available) his report would have concluded that KRM lacked capability in financial/estate decisions. Thus his revised conclusion at the hearing was entirely consistent with the assessment results set out in his written report, and also consistent with the views of Dr Harper.,In summary the Tribunal found that the medical evidence before it was sufficient to rebut the presumption of capability for KRM in respect of financial/estate decisions, but was not…

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.

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Details

AGLC: KRM [2017] WASAT 135
Case: [2017] WASAT 135
Decision Date: 20 OCTOBER 2017

CaseChat Overview and Summary

The case before the court involved a dispute concerning the need for an administrator to be appointed for an elderly woman suffering from dementia. The application for an administrator was brought by her children, who sought to replace the current administrator, the Public Trustee. The court had to determine whether the statutory presumption of capability had been rebutted, and whether there was a need for an administrator due to the woman's cognitive impairment and alleged financial exploitation. The case hinged on the distinction between questions of cognitive capability and questions of need, with the former being a medical question and the latter a legal one.

The court examined the statutory presumption of capability in the context of dementia, holding that the presumption had not been rebutted by the evidence presented. The court emphasised that capability and need were distinct and separate questions. While the woman's cognitive impairment was evident, the court found that there was no evidence of a need for an administrator due to her condition. However, the court did find evidence of financial exploitation, which necessitated the appointment of an administrator. The court considered it necessary to provide directions to the administrator to protect the woman's financial interests and prevent further exploitation.

In light of the court's findings, the application for an administrator was dismissed, and the Public Trustee was appointed as the plenary administrator with specific directions to safeguard the woman's financial interests and prevent further exploitation. The directions included requirements for the administrator to monitor the woman's financial affairs closely, report regularly to the court, and take appropriate action to protect her assets. The court's decision emphasised the importance of distinguishing between questions of cognitive capability and need, and the need for careful consideration of the evidence in each case.

Orders

Orders of the court

Guardianship application dismissed

Public Trustee appointed as plenary administrator with directions

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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