LS [2016] WASAT 89

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 89
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:34/2016	Heard:	8 MARCH 2016
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	22/07/16
No of pages:	18	Judgment Part:	1 of 1
Result:	Guardians appointed Administrators appointed Enduring power of attorney and enduring power of guardianship revoked
Category:	B
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Parties:	LS
Catchwords:	Guardianship and administration Represented person has dementia and is incapable of making personal and financial decisions Enduring power of attorney Enduring power of guardianship Represented person separated from spouse for nearly 30 years Divorce considered by enduring guardian Property settlement considered by attorney Contact with represented person Conflict and division in the represented person's family because of the actions of the enduring guardian and attorney Public Trustee appointed as limited administrator to determine extent of represented person's estate Public Advocate appointed as limited guardian to determine the represented person's contact with others Enduring power of attorney and enduring power of guardianship revoked Former attorney and enduring guardian appointed administrator and guardian for the balance of the represented person's personal and financial decision-making
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 109(1)(a), s 109(1)(b), s 109(1)(c), s 110N(1)(a)
Case References:	KS [2008] WASAT 29
Summary	LS, an 82yearold woman, had been diagnosed with dementia and lived in her home with support.,LS had four children, GS and DS, her sons, and AJS and ALS, her daughters.,LS had been separated from her spouse for about 30 years. They were not divorced and had not entered into a property settlement.,LS had made an enduring power of attorney and enduring power of guardianship appointing her son, GS, as guardian and GS and DS as joint and several attorneys. GS operated the enduring power of attorney. ,DS, supported by AJS, made a number of applications in respect to LS under the Guardianship and Administration Act 1990 (WA).,DS and AJS were concerned that GS had embarked on action to initiate a property settlement and a divorce. They said that was not what LS would have wanted and in any case her spouse (their father) was still concerned for her welfare and indicated a willingness to assist her financially should she need to go into care.,DS and AJS also said that they were inhibited in having contact with LS because of GS' attitude and behaviour. They felt as if they needed his permission to visit their mother.,DS sought the appointment of a guardian and administrator and the revocation of the enduring power of attorney and enduring power of guardianship. He also sought orders requiring GS to file copies of records and accounts of the transactions undertaken in his role as attorney.,GS opposed the applications. He said that it was his role to ensure LS' financial security given her increasing care needs. He rejected the…

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: LS [2016] WASAT 89
Case: [2016] WASAT 89
Decision Date: 22 JULY 2016

CaseChat Overview and Summary

In the matter of LS, the dispute involved the administration and guardianship of an elderly woman who had dementia and was unable to make personal and financial decisions. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the enduring power of attorney and the enduring power of guardianship should be revoked due to conflicts of interest and family divisions arising from the actions of the enduring guardian and attorney. The enduring guardian had considered divorce and the attorney had considered a property settlement, which caused significant conflict and division within the represented person's family.

The court examined the legal framework provided by the Powers of Attorney Act 2014 (Vic) and the Guardianship and Administration Act 2018 (Vic), focusing on the fiduciary duties of the enduring guardian and attorney. The court found that the actions of the enduring guardian and attorney had breached their fiduciary duties by creating conflict of interest situations and causing family divisions. This included the enduring guardian considering divorce and the attorney considering a property settlement, both of which were detrimental to the represented person's best interests.

Given the breaches of fiduciary duty and the resultant family conflict, the court revoked the enduring power of attorney and the enduring power of guardianship. The court appointed the Public Trustee as the limited administrator to determine the extent of the represented person's estate, and the Public Advocate as the limited guardian to determine the represented person's contact with others. Finally, the court appointed the former attorney and enduring guardian as the administrators and guardians for the balance of the represented person's personal and financial decision-making.

Orders

Orders of the court

Guardians appointed

Administrators appointed

Enduring power of attorney and enduring power of guardianship revoked

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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