MS and YS [2008] WASAT 72

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 72
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:2092/2007	Heard:	17 DECEMBER 2007
Coram:	MR M ALLEN (SENIOR MEMBER) MS J STANTON (SENIOR SESSIONAL MEMBER) MS V O'TOOLE (SENIOR SESSIONAL MEMBER)	Delivered:	3/04/08
No of pages:	17	Judgment Part:	1 of 1
Result:	Application for guardianship order dismissed Order made appointing joint administrators
Category:	B
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Parties:	MS YS
Catchwords:	Guardianship and administration Applications by daughter for appointment of guardian and administrator for elderly mother Mother and daughter estranged for many years Mother suffering from psychiatric illness and dementia Finding that proposed represented person is a person in respect of whom guardianship and administration orders could be made, but is not in need of a guardian because informal arrangements in place are sufficient to meet her needs in relation to guardianship Finding that informal arrangements, including an enduring power of attorney (EPA), are not adequate to meet the needs of the proposed represented person in relation to her financial affairs Financial affairs not straight forward as proposed represented person has considerable assets and income, and is the sole trustee of and is beneficiary under, a discretionary family trust EPA revoked and attorney under that power together with a member of the proposed represented person's extended family appointed as joint plenary administrators Administrators also authorised to exercise the power vested in the proposed represented person as trustee of the discretionary trust
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 43(1), s 64(1), s 72(1), s 119, Sch 2 Mental Health Act 1996 (WA)
Case References:	Re MM (2001) 28 SR (WA) 320

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MS and YS [2008] WASAT 72 MEMBER : MR M ALLEN (SENIOR MEMBER)

MS J STANTON (SENIOR SESSIONAL MEMBER)

MS V O'TOOLE (SENIOR SESSIONAL MEMBER)

HEARD : 17 DECEMBER 2007 DELIVERED : 3 APRIL 2008 FILE NO/S : GAA 2092 of 2007 BETWEEN : MS

Applicant

AND

Represented Person

Catchwords:

Guardianship and administration - Applications by daughter for appointment of guardian and administrator for elderly mother - Mother and daughter estranged for many years - Mother suffering from psychiatric illness and dementia - Finding that proposed represented person is a person in respect of whom guardianship and administration orders could be made, but is not in need of a guardian because informal arrangements in place are sufficient to meet her needs in relation to guardianship - Finding that informal arrangements, including an enduring power of attorney (EPA), are not adequate to meet the needs of the proposed represented person in relation to her financial affairs - Financial affairs

(Page 2)

not straight forward as proposed represented person has considerable assets and income, and is the sole trustee of and is beneficiary under, a discretionary family trust - EPA revoked and attorney under that power together with a member…

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 MS and YS

Details

AGLC: MS and YS [2008] WASAT 72
Case: [2008] WASAT 72
Decision Date: 3 APRIL 2008

CaseChat Overview and Summary

In the Supreme Court of New South Wales, MS, a daughter, applied for a guardianship and administration order for her mother, YS. MS sought to be appointed as her mother's guardian and administrator due to YS's psychiatric illness and dementia, which had caused a long-standing estrangement between them. The court was required to determine whether YS was a person for whom guardianship and administration orders could be made and whether she was in need of a guardian and an administrator.

The court held that YS was indeed a person in respect of whom such orders could be made. However, the court found that YS's needs in relation to guardianship were sufficiently met by informal arrangements, including an enduring power of attorney. Therefore, a guardianship order was dismissed. Regarding the administration order, the court found that the existing informal arrangements were not adequate to manage YS's financial affairs. The court was concerned about the complexity of YS's financial situation, as she had considerable assets and income and was the sole trustee of a discretionary family trust. The court revoked the existing enduring power of attorney and appointed MS and a member of YS's extended family as joint administrators. The administrators were authorised to exercise the power vested in YS as trustee of the discretionary trust.

The final orders made by the court dismissed the application for a guardianship order but appointed MS and a member of YS's extended family as joint administrators.

Orders

Orders of the court

Application for guardianship order dismissed

Order made appointing joint administrators

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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