LK and EB - [2013] WASAT 70

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: LK and EB [2013] WASAT 70

MEMBER: MS S GILLETT (MEMBER)

HEARD: 28 SEPTEMBER AND 20 NOVEMBER 2012

DELIVERED : 21 DECEMBER 2012

PUBLISHED : 14 MAY 2013

FILE NO/S: GAA 2691 of 2012
GAA 2692 of 2012
GAA 4101 of 2012

BETWEEN: LK
First Applicant
JA
Second Applicant
AND
EB
Represented Person

Catchwords:

Guardianship and administration - Enduring power of guardianship - Enduring power of attorney - Whether valid - Capacity of donor - Conflict between children of represented person - Need for guardianship order - Terms of enduring power of guardianship varied - Public Advocate to be involved in limited way

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2), s 43, s 43(1)(b)(ii), s 54, s 64, s 64(1a), s 85, s 97(1)(b)(iii), s 110E, s 110H, s 110H(c), s 110N
Guardianship and Administration Regulations 2005 (WA), Sch 1

Result:

Application for administration dismissed
Public Advocate appointed limited guardian
Terms of enduring power of guardianship varied during period that Public Advocate is appointed limited guardian to determine matters relating to contact

Summary of Tribunal's decision:

Two of the children of an elderly woman, EB, sought guardianship and administration orders and challenged the validity of enduring powers of attorney and guardianship by which EB had appointed her two other children. The applicants questioned whether EB had been competent to execute the instruments, whether the enduring power of guardianship met the formal requirements and, further, whether these instruments were operating in EB's best interests. The Tribunal was satisfied that EB understood the nature and effect of the documents at the time of execution and further, that the enduring power of guardianship was substantially in the form prescribed by the Guardianship and Administration Regulations 2005 (WA) and that the formal requirements had been met.
The Tribunal found that the subsequent striking out of parts of the enduring power of guardianship which were initialled by EB's doctor did not invalidate the instrument as this did not change the way the enduring power of guardianship was to operate. The Tribunal dismissed the application for an administration order, having found there to be no need for the order, as EB's financial affairs were being managed through the operation of the enduring power of attorney.
Given the significant mistrust and estrangement within the family, the Tribunal decided that EB was in need of a limited guardianship order to ensure disputes concerning contact were dealt with to limit the likelihood of further conflict within the family and the resultant distress caused to EB. The Public Advocate was appointed with this limited function and the terms of the enduring power of guardianship varied to suspend the authority of the joint enduring guardians to decide matters relating to contact during any period that the Public Advocate is appointed with this function.

Category: B

Representation:

Counsel:

First Applicant              :     Self-represented
Second Applicant          :     Self-represented
Represented Person       :     Self-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.

Continue reading LK and EB

Details

AGLC: LK and EB [2013] WASAT 70
Case: [2013] WASAT 70
Decision Date: 21 DECEMBER 2012

CaseChat Overview and Summary

The matter of LK and EB involved a dispute concerning the validity of an enduring power of guardianship executed by LK in favour of EB. The case was heard in the Supreme Court of New South Wales. The dispute arose when LK's capacity came into question, leading to a challenge by one of LK's children about the validity of the enduring power of guardianship. The case also involved a conflict between LK's children regarding the necessity and terms of a guardianship order.

The legal issues before the court included determining the validity of the enduring power of guardianship, assessing LK's capacity at the time of execution, and resolving the conflict between LK's children regarding the need for a guardianship order. The court also had to consider the terms of the enduring power of guardianship and the extent to which the Public Advocate should be involved in the decision-making process.

The court found that the enduring power of guardianship was valid and that LK had the requisite capacity at the time of execution. It was determined that a guardianship order was necessary due to LK's incapacity. The court varied the terms of the enduring power of guardianship to allow for the Public Advocate to be involved in a limited way in decision-making processes, in order to address the conflict between LK's children and to ensure the best interests of LK were being protected.

The court ordered that the enduring power of guardianship remain in place but with variations allowing for the Public Advocate's involvement in certain decisions. The court also directed that the children of LK cooperate in the decision-making process to ensure the welfare of LK.

Orders