MK - [2013] WASAT 146

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MK [2013] WASAT 146

MEMBER: MS F CHILD (MEMBER)

HEARD: 30 MAY, 20 JUNE AND 19 JULY 2013

DELIVERED : 19 JULY 2013

PUBLISHED : 6 SEPTEMBER 2013

FILE NO/S: GAA 1698 of 2013
GAA 1699 of 2013

MATTER :MK
Represented person

Catchwords:

Guardianship and administration - Application for appointment of a guardian and an administrator - Represented person with diagnosis of Alzheimer's disease and dementia - Refusal of services by spouse - Need for an independent guardian to consent to services and determine treatment - Transfer of funds from represented person's bank account to a joint bank account in the names of her spouse, son and daughter - High level of family conflict - Need for independent administrator to manage estate

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 64

Result:

Public Trustee appointed as administrator
Public Advocate appointed limited guardian

Summary of Tribunal's decision:

Applications were made to the Tribunal for the appointment of a guardian and an administrator for an elderly woman, MK, who has a diagnosis of Alzheimer's dementia. The applicant was one of the daughters of MK who said she was encouraged to make the applications by the social worker and geriatrician from the Aged Care Assessment Team from the local hospital, as there were concerns from the team that MK needed services at home but that these had apparently been refused by her husband who was her primary carer.
Unfortunately, the applications caused an estrangement between the applicant daughter and her father and appeared to increase existing conflict between her siblings who opposed the applications.
The Tribunal found that MK was a person for whom a guardian and an administrator could be appointed because of her advanced dementia. It also found she was in need of a guardian and an administrator because her husband, who was her primary carer, was also elderly, had health problems of his own, and did not appear to appreciate the level of care his wife required and had refused services which she needed. The Tribunal also found he could not protect MK's financial interests because of his own memory problems.
The Tribunal learned that, prior to the hearing of the applications, but after receiving notice of the hearing date, the husband had gone with his son, A, and daughter, D, to the bank and the funds of MK had been removed from her bank account and placed in an account in the joint names of the husband, the daughter and the son. At a subsequent hearing, the husband denied any knowledge of the transfer and it was apparent that he did not remember it. On an application by the Public Trustee, who had been appointed in an interim capacity at the first hearing, the Tribunal made an order freezing the operation of the joint account.
The Tribunal determined that there was a need for an independent administrator to…

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 MK

Details

AGLC: MK [2013] WASAT 146
Case: [2013] WASAT 146
Decision Date: 19 JULY 2013

CaseChat Overview and Summary

The case involved an application for the appointment of a guardian and an administrator for a represented person diagnosed with Alzheimer's disease and dementia. The primary issue was the refusal of medical services by the represented person's spouse, necessitating an independent guardian to consent to necessary services and determine treatment. The represented person had also transferred funds from her sole bank account to a joint account in the names of her spouse, son, and daughter, raising concerns about the estate's management amidst significant family conflict.

The court was tasked with determining whether there was a valid reason to appoint a guardian and an administrator for the represented person. This included assessing the necessity of an independent guardian to make decisions regarding the represented person's care and an independent administrator to manage the estate. The court had to consider the represented person's diagnosis, the refusal of services by her spouse, and the potential for mismanagement of her estate due to the family conflict.

In its decision, the court found that the represented person's condition warranted the appointment of a guardian to make decisions about her care and an administrator to manage her estate. The court acknowledged the represented person's declining cognitive abilities and the need for an independent decision-maker to act in her best interests. The court also recognised the potential for mismanagement of her estate due to the family conflict and the need for an independent administrator to ensure the estate was managed properly. Consequently, the court granted the application for the appointment of a guardian and an administrator.

Orders