LGM [2016] WASAT 45

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 45
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:3856/2015	Heard:	16 OCTOBER 2015 AND 3 DECEMBER 2015 AND 5 FEBRUARY 2016
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	4/05/16
No of pages:	20	Judgment Part:	1 of 1
Result:	Guardianship and administration orders made
Category:	B
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Parties:	LGM
Catchwords:	Guardianship and administration Capacity Represented person diagnosed with anxiety and depression Represented person also diagnosed with Post Traumatic Stress Disorder Inconsistency in the evidence of the represented person's general practitioner Other evidence preferred which was indicative of the represented person having a much greater functional impairment than was assessed by the general practitioner Enduring power of attorney Enduring power of guardianship Only one qualified witness Defective as to form Son of the represented person not suitable to be appointed guardian and administrator Public Advocate appointed as limited guardian Public Trustee appointed as plenary administrator Enduring power of attorney revoked
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 65, s 68, s 69, s 84, s 104(2)(a), s 108(1a)(a), s 110(1)(c), s 110N(1)(a)
Case References:	GC and PC [2014] WASAT 10 Re C [2012] WASAT 50 XYZ v State Trustees Ltd [2006] VSC 444
Summary	Applications for guardianship and administration orders were made in respect to LGM, the represented person, who at the time of the hearing was 64 years of age.,The represented person was living in temporary accommodation at the time the applications were made. He was not in receipt of an income and had a credit card debt of approximately $6,000.,Bank funds of approximately $17,600 the represented person had in November 2014 had all been expended.,Family members, including his exspouse and his sister, were concerned that the represented person was not functioning well and was under the influence of his son whom the exspouse (and mother of the son) said had a history of illicit drug use and would put his interests before those of the represented person.,The represented person had appointed the son as his attorney under an enduring power of attorney and as his guardian under an enduring power of guardianship. The instruments were defective in form because they had only one qualified witness.,The represented person's general practitioner was of the view that the represented person was capable of making his own personal and financial decisions. The represented person was said to suffer from anxiety and depression but that there had been a marked improvement in his mood in recent times.,In one document, the general practitioner had diagnosed the represented person with Post Traumatic Stress Disorder but he said that diagnosis and prognosis related only to the represented person's employment prospects. ,Other evidence before the Tribunal which was preferred, came from different sources, particularly the represented person's sister, the Public Advocate and the Public Trustee and which was indicative of the represented…

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: LGM [2016] WASAT 45
Case: [2016] WASAT 45
Decision Date: 4 MAY 2016

CaseChat Overview and Summary

The case involved a represented person, who was diagnosed with anxiety, depression, and post-traumatic stress disorder. The dispute centred around the represented person's capacity to manage their affairs and the necessity of appointing a guardian and administrator. The matter was brought before the court, which was tasked with determining the appropriate course of action for the represented person's welfare.

The court was required to address several legal issues, including the inconsistency in the evidence provided by the represented person's general practitioner, the assessment of the represented person's functional impairment, and the suitability of the son to be appointed as the guardian and administrator. Furthermore, the court needed to consider the validity of the enduring power of attorney and the enduring power of guardianship, as well as the necessity of appointing alternative guardians and administrators.

The court found that the represented person had a much greater functional impairment than assessed by the general practitioner, and that the evidence provided by other witnesses was more reliable. The enduring power of attorney was deemed defective due to the lack of a qualified witness, and the son was considered unsuitable to be appointed as the guardian and administrator. Consequently, the court appointed the Public Advocate as the limited guardian and the Public Trustee as the plenary administrator. Additionally, the enduring power of attorney was revoked to prevent any potential misuse or conflict of interest.

The court made guardianship and administration orders, appointing the Public Advocate as the limited guardian and the Public Trustee as the plenary administrator for the represented person. The enduring power of attorney was revoked, ensuring that the represented person's interests were protected and that appropriate measures were taken to manage their affairs.

Orders

Orders of the court

Guardianship and administration orders made

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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