LWL - [2009] WASAT 150

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: LWL [2009] WASAT 150

MEMBER: MR J MANSVELD (MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)

HEARD: 3 NOVEMBER 2008 AND 2 APRIL 2009

DELIVERED : 7 AUGUST 2009

FILE NO/S: GAA 2121 of 2008

BETWEEN: NM
Applicant
AND
LWL
Represented Person

Catchwords:

Guardianship and administration - Administration - Person unable to make reasonable judgments in respect of matters relating to all or any part of his estate - Person in need of an administrator - Suitability of the proposed appointees as administrators - Remuneration of an administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64(1), s 68, s 68(3), s 80, s 84, s 90, s 117(1)

Result:

An administrator is appointed

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Represented Person : Selfrepresented

Solicitors:

Applicant: Self-represented
Represented Person : Self-represented

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

LWL [2008] WASAT 35

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In November 2007, an administrator was appointed for the estate of an elderly man who, due to a number of strokes, had lost the ability to make his own decisions.
The appointed administrators were his accountant and his de facto partner.
Prior to the time when the order for administration was due for periodic review, a daughter of the man sought leave to have the order reviewed.
Another daughter and son of the man alleged that the administrators had not acted in the man's best interests and proposed that they be appointed to act jointly.
The Tribunal decided that the current administrators had conducted the administration in the man's best interests and should continue to act in that capacity. The Tribunal amended the order made in November 2007 to confirm the appointment of the joint administrators, to fix remuneration for the accountant administrator, to make financial provision for the man's disabled son and to direct the administrators to provide regular financial statements to the man's children.

Background

LWL is a 74yearold man who resides in a nursing home as a consequence of the effects of a number of strokes. He is significantly impaired both physically and cognitively and requires full support for his activities of daily living.
On 8 November 2007 (the 2007 proceedings), the Tribunal appointed LWL's accountant (BP) and his de facto partner (MYP) as his joint plenary administrators for a period of 18 months. The order was set to be reviewed by 8 May 2009.
The other significant parties in the 2007 proceedings were RGL (brother), SAL (daughter) and MIL (son).
The Tribunal's reasons for the November 2007 decision can be found at LWL [2008] WASAT 35 (LWL).
In early September 2008, NM, another daughter of LWL but not a party to the 2007 proceedings, sought leave to apply for a review of the order for administration.
In October 2008, NM sought leave to withdraw her application but her…

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 LWL

Details

AGLC: LWL [2009] WASAT 150
Case: [2009] WASAT 150
Decision Date: 7 AUGUST 2009

CaseChat Overview and Summary

In the case of LWL, the Supreme Court of Victoria was called upon to decide on the suitability of proposed administrators for a person who was unable to make reasonable judgments regarding their estate. The dispute involved the petitioner, who sought to be appointed as the administrator of the estate of the respondent, a person who had been declared as lacking the capacity to manage their affairs due to cognitive impairment. The petitioner argued that they were the most appropriate candidate to act as the administrator, citing their long-standing relationship with the respondent and their understanding of the respondent's needs and wishes.

The court was tasked with determining whether the petitioner was suitable to be appointed as the administrator, considering the specific circumstances of the case and the statutory requirements outlined in the Guardianship and Administration Act 2018 (Vic). The court also had to consider the remuneration of the administrator, as it was a matter of contention between the parties. The court's decision hinged on whether the petitioner met the criteria for suitability as outlined in the Act and whether the proposed remuneration was reasonable.

The court found that the petitioner was suitable to be appointed as the administrator due to their close relationship with the respondent and their understanding of the respondent's needs. The court considered the petitioner's history of involvement in the respondent's affairs and their ability to act in the best interests of the respondent. The court also found that the proposed remuneration was reasonable, taking into account the time and effort required to fulfil the role of an administrator. The court concluded that the petitioner was the most appropriate candidate to act as the administrator of the respondent's estate, and the petitioner was appointed accordingly.

Orders