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…
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- AGLC
- MHF and TF [2013] WASAT 210
- Case
- [2013] WASAT 210
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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