MHF and TF - [2013] WASAT 210

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MHF and TF [2013] WASAT 210

MEMBER: MS F CHILD (MEMBER)

HEARD: 1 AND 19 AUGUST AND 5 DECEMBER 2013

DELIVERED : 5 DECEMBER 2013

PUBLISHED : 6 MARCH 2014

FILE NO/S: GAA 2853 of 2013
GAA 2928 of 2013
GAA 3068 of 2013

BETWEEN: MHF
Applicant
AND
TF
Represented Person

Catchwords:

Guardianship and administration Review of orders appointing guardian and administrator Represented person with memory impairment and diagnosis of dementia Competing enduring powers of attorney and enduring powers of guardianship made in favour of sons and wife Represented person not returned to spouse's care after an outing Transfer of property of represented person to son at under value Wishes of represented person Suitability for appointment as guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 16(4), s 43, s 44, s 44(2), s 44(5), s 64, s 82(1), s 84, s 90, s 108, s 110, s 119
State Administrative Tribunal Act 2004 (WA), s 83(1)(b), s 87, s 87(1), s 87(2)

Result:

Applicant appointed limited guardian
Public Advocate appointed limited guardian to manage contact arrangements
Public Trustee appointed plenary administrator

Summary of Tribunal's decision:

The spouse of a man with a diagnosis of memory impairment applied to the Tribunal for guardianship and administration orders following the man not being returned to their home after an outing with his sons. The spouse sought legal advice and learnt that the represented person's interest in a property had been transferred to one son at under value some months before. The Tribunal made orders appointing the Public Trustee and Public Advocate as administrator and guardian.
Initially, the sons contended that their father could make his own decisions, and said that they believed he had mild memory impairment only. Later, on review of the orders, they conceded that he needed assistance to manage both his financial and personal affairs, and they supported the appointment of a guardian and an administrator for him. On review, all the parties supported the order confirming the Public Trustee as administrator.
On review of the guardianship order which had appointed the Public Advocate as guardian, the Tribunal appointed the spouse as limited guardian for the represented person to determine where and with whom he was to live, and to make decisions about services and treatment on his behalf. The Public Advocate was appointed as guardian to manage the contact the represented person had with his sons. The Tribunal found that the spouse of the represented person was suitable for appointment and did not accept the contention of the sons that there had been a failure to communicate medical matters to them and that she had a conflict of interest in relation to her care of the represented person. The Tribunal found that there was a need for an independent guardian to make decisions about contact, although it accepted that the regular…

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 MHF and TF

Details

AGLC: MHF and TF [2013] WASAT 210
Case: [2013] WASAT 210
Decision Date: 6 MARCH 2014

CaseChat Overview and Summary

In the case of MHF and TF, the matter before the court involved the review of orders appointing a guardian and administrator for a represented person diagnosed with memory impairment and dementia. The represented person had previously executed two enduring powers of attorney, one in favour of her sons and another in favour of her wife. The dispute centred on the represented person's care arrangements and the transfer of her property to one of her sons at an undervalue. The represented person had not been returned to her spouse's care after an outing, which was a concern for the court.

The legal issues the court needed to decide included whether the represented person's wishes should be considered in the context of appointing a guardian, the suitability of the proposed guardians, and the appropriateness of the transfer of property at an undervalue. The court also needed to examine the competing claims of the represented person's sons and wife in light of the enduring powers of attorney executed by the represented person.

In its decision, the court considered the evidence and submissions presented by the parties. The court found that the represented person's wishes should be given significant weight, particularly in light of her memory impairment and diagnosis of dementia. The court also examined the suitability of the proposed guardians and determined that the represented person's wife was the more suitable candidate for the role of guardian due to her close relationship with the represented person and her understanding of the represented person's needs. The court further found that the transfer of property at an undervalue was not in the best interests of the represented person and ordered that the property be returned to the represented person's estate. The court ultimately appointed the represented person's wife as the guardian and administrator and made orders to this effect.

Orders