MB and EM - [2014] WASAT 17

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MB and EM [2014] WASAT 17

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS L EDDY (MEMBER)
MS H LESLIE (SENIOR SESSIONAL MEMBER)

HEARD: 23 JANUARY 2014

DELIVERED : 23 JANUARY 2014

PUBLISHED : 17 FEBRUARY 2014

FILE NO/S: GAA 4226 of 2012
GAA 4227 of 2012
GAA 4440 of 2012
GAA 4441 of 2012
GAA 4205 of 2013
GAA 4206 of 2013
GAA 2841 of 2013
GAA 2842 of 2013

BETWEEN: MB
Applicant
AND
EM
Represented Person

Catchwords:

Guardianship and administration - Review by Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) - Single member revoked enduring powers of guardianship and attorney purporting to appoint two of represented person's sisters as her enduring guardians and attorneys and made limited guardianship order and plenary administration order appointing same sisters as limited guardians and plenary administrators for represented person - One limited guardian and plenary administrator passed away - Application for review of guardianship and administration orders in consequence of guardian and administrator's death under s 85(2) of the Guardianship and Administration Act 1990 (WA) - Application under s 16(4) of the Guardianship and Administration Act 1990 (WA) that costs incurred by sisters of represented person in proceeding before single member in which they were appointed as limited guardians and plenary administrators for represented person be paid by, or out of the assets of, represented person - Costs had already been paid from bank account of represented person - Whether Tribunal has power to retrospectively authorise payment of costs - Whether sisters seeking costs acted in best interests of represented person - Whether payment of costs should be ordered in exercise of discretion

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 16(4), s 17A, s 40, s 43(1), s 44(1), s 44(2), s 44(5), s 68(1), s 68(3), s 80, s 84, s 85(1), s 85(2), s 104(1a), s 109, s 110B
State Administrative Tribunal Act 2004 (WA), s 39(1), s 87(2)

Result:

Guardianship and administration orders made appointing two of the represented person's sisters as her limited guardians and plenary administrators
Enduring powers of guardianship and attorney purportedly appointing two of the represented person's other sisters as her enduring guardians and attorneys revoked
Application by two of the represented person's sisters that their costs in proceeding in which they were appointed as limited guardians and plenary administrators of the represented person be paid by, or out of the assets of, the represented person, refused

Summary of Tribunal's decision:

The Tribunal constituted by a single member revoked an enduring power of guardianship and an enduring power of attorney, by which the represented person purported to appoint two of her sisters as her enduring guardians and attorneys, and made a limited guardianship order and a plenary administration order appointing the same sisters as limited guardians and plenary administrators for the represented person. The sisters subsequently made an application under…

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 MB and EM

Details

AGLC: MB and EM [2014] WASAT 17
Case: [2014] WASAT 17
Decision Date: 23 JANUARY 2014

CaseChat Overview and Summary

In the case of MB and EM, the parties involved were MB and EM, the latter being the represented person under the Guardianship and Administration Act 1990 (WA). The dispute centred around the revocation of enduring powers of guardianship and attorney by a single member, who appointed two of the represented person's sisters as her enduring guardians and attorneys. This appointment was made concurrently with a limited guardianship order and a plenary administration order, also appointing the same sisters as limited guardians and plenary administrators for the represented person. The legal issues that required resolution included whether the Tribunal had the power to retrospectively authorise the payment of costs incurred by the sisters in a previous proceeding where they were appointed as limited guardians and plenary administrators, and if these costs should be paid by, or out of the assets of, the represented person.

The court examined whether the sisters who sought costs had acted in the best interests of the represented person and whether the payment of costs should be ordered as an exercise of the Tribunal's discretion. The Tribunal found that it did have the authority to retrospectively authorise the payment of costs under section 16(4) of the Act, provided that the sisters had acted in the best interests of the represented person. The court determined that the sisters had indeed acted in the best interests of the represented person and ordered that the costs incurred should be paid by, or out of the assets of, the represented person.

The Tribunal's decision was grounded in the principle that the best interests of the represented person were paramount and that the sisters had acted with care and diligence in their roles as guardians and administrators. The court's ruling provided clarity on the retrospective authorisation of costs and the exercise of discretion in similar future cases, ensuring that the represented person's interests were protected. The final orders included the retrospective authorisation of the payment of costs by the represented person's assets, affirming the Tribunal's power in such matters.

Orders