MB and EM - [2013] WASAT 106

MB and EM [2013] WASAT 106

Last Update: 09/10/2013

MB and EM [2013] WASAT 106
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 106
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:4584/2012, GAA:4226/2012, GAA:4441/2012, GAA:4440/2012	Heard:	20 DECEMBER 2012, 27 MARCH 2013, 13 JUNE 2013
Coram:	MR M ALLEN (SENIOR MEMBER)	Delivered:	05/07/2013
No of Pages:	22	Judgment Part:	1 of 1
Result:	Enduring power of attorney and enduring power of guardianship revoked Plenary administration order made Guardianship order revoked and replaced with a new limited guardianship order
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	MB EM
Catchwords:	Guardianship and administration Elderly woman with intellectual disability Applications for revocation of enduring power of attorney and enduring power of guardianship, an administration order, and review of guardianship order Findings that represented person unable to care for herself or make reasonable judgments about her personal or financial affairs, and was not capable of making an enduring power of attorney or enduring power of guardianship at the time of executing those documents Enduring powers of attorney and guardianship revoked Orders made appointing two sisters as joint administrators and joint guardians, but subject to conditions that administrators and guardians provide information to, and consult, other siblings of the represented person
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4, s 16(4), s 43, s 44(1), s 44(2), s 64, s 68(1), s 68(3), s 80, s 86, s 104(1a), s 104(1)(b)(i), s 108, s 109, s 109(1)(c), s 110B, s 110F, s 110K, s 110N, Div 3 Pt 5, Pt 9A
Case References:	RS & Anor and DV [2011] WASAT 144
Summary:	The proceedings before the Tribunal concerned a 68yearold woman with an intellectual disability and involved applications for the revocation of an enduring power of attorney and an enduring power of guardianship, for an administration order and the review of a limited guardianship order concerning the woman. At an early stage of the proceeding the Tribunal had made a limited guardianship order for the woman under which the Public Advocate was to determine issues relating to accommodation, contact with other persons, and consent to further neuropsychological assessment of whether the woman was capable of making decisions or managing her personal and financial affairs and expressing views and wishes concerning such matters. The Tribunal was satisfied that, currently, the woman lacks capacity to make reasonable judgments about, or manage, her financial and personal affairs and was not capable of understanding the nature and effect of the enduring power of attorney and the enduring power of guardianship when those documents were executed in 2011. Accordingly, the Tribunal revoked the enduring power of attorney and enduring power of guardianship and concluded that an administration order and a guardianship order were needed in the best interests of the woman. The Tribunal concluded that two of the woman's sisters had been most active in looking after the woman's interests in the past and that they…

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: MB and EM [2013] WASAT 106
Case: [2013] WASAT 106
Decision Date

CaseChat Overview and Summary

The matter before the State Administrative Tribunal of Western Australia involved the appointment of an administrator and a guardian for EM, a woman with intellectual disability and other mental health conditions. Two of EM's sisters, MM and LB, had executed an enduring power of attorney (EPA) and an enduring power of guardianship (EPG) on behalf of EM, but MB, a cousin of EM, challenged the validity of the EPA and EPG and sought orders to be appointed as EM's administrator and guardian. The Tribunal found that EM lacked the capacity to execute an EPA and EPG in 2011 and revoked both documents. The Tribunal then considered who should be appointed as EM's administrator and guardian. The Tribunal decided that MM and LB should be appointed as joint plenary administrators and joint limited guardians of EM, subject to conditions that they consult with other family members and provide them with information about EM's care and financial affairs. The Tribunal rejected MB's application to be appointed as EM's administrator and guardian, finding that it was not in EM's best interests to live with MB again, and that the appointment of MM and LB would result in EM having more contact with her family members. The final orders revoked the EPA and EPG, appointed MM and LB as joint administrators and guardians of EM, and imposed conditions on their appointment.

Orders