NDB - [2024] WASAT 34

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   NDB [2024] WASAT 34
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   23 FEBRUARY 2024, 12 MARCH 2024 AND 28 MARCH 2024
DELIVERED          :   18 APRIL 2024
PUBLISHED           :   24 APRIL 2024
FILE NO/S:   GAA 173 of 2024
GAA 967 of 2024
NDB
Proposed Represented Person
RA
Applicant

Catchwords:

Application for guardianship and administration - Best interests of represented person - Weight given to medical opinion of specialist geriatrician - Reliance on screening tools to establish capacity - Multiple RUDAS tests - Three wills prepared within three months - Evidence of impaired judgment in 'real world' - Independence of interpreters used in Tribunal proceedings - Family members proposed as guardian and administrator - Family members found to be unsuitable to be guardian and administrator - Entrenched family conflict

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(6), s 4(7), s 43(1)(b), s 43(1)(c), s 44(1), s 44(1)(a), s 44(1)(b), s 44(1)(c), s 44(2)(d), s 64, s 64(1)(b), s 65, s 68(1), s 68(1)(c), s 68(1)(d), s 68(3)(a), s 68(3)(b), s 68(3)(c), s 70(2)(d), s 72, s 107(1)(a), s 107(1)(b), s 109(1)(a)
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4)

Result:

Public Trustee appointed plenary administrator
Public Advocate appointed limited guardian

Category: B

Representation:

Counsel:

Proposed Represented Person	:	In Person
Applicant	:	MG Di Martino

Solicitors:

Proposed Represented Person	:	N/A
Applicant	:	MGD Law

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
FY [2019] WASAT 118
GC and PC [2014] WASAT 10
LP [2020] WASAT 25
XYZ (Guardianship) [2007] VCAT 1196

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

NDB is a 102-year-old man who has lived alone at his home (Property) for 40 years since the passing of his wife. He has two sons, RA and JJ, and two daughters, SV and TW. NDB's grandson, JJ's son, has the same name as NDB and is referred to as 'GS' in these reasons.
NDB appointed his sons RA and JJ to be his joint and several attorneys by an enduring power of attorney dated 28 April 2017 (EPA) prepared by Law Firm H. From 2020, JJ was trusted by his siblings to manage NDB's finances and personal matters. He received a carer's pension in respect of same.
RA, SV, TW and RA's wife MA first became concerned about NDB's welfare and the management of his finances in June 2023 following allegations of significant financial exploitation by a neighbour. By September 2023, the relationship between RA, MA, SV and TW on the one hand, and JJ and GS on the other, had deteriorated. JJ's view is that his siblings only became involved when NDB prepared a new will on 29 November 2023 (November Will) that made a significant gift to GS and correspondingly reduced their anticipated inheritance.
In respect of safety, RA says that NDB's home is in a state of…

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 NDB

Details

AGLC: NDB [2024] WASAT 34
Case: [2024] WASAT 34
Decision Date: 24 APRIL 2024

CaseChat Overview and Summary

In the case of NDB, the dispute arose in the Family Court of Australia concerning an application for guardianship and administration. The applicant sought to become the guardian and administrator of an elderly person, identified as NDB, due to concerns about NDB's capacity to manage their own affairs. The application followed a series of events including the preparation of three wills within three months, which raised concerns about NDB's judgment and decision-making abilities. The court had to determine the best interests of NDB, weighing various medical opinions and the suitability of potential guardians.

The court was required to decide whether NDB lacked the capacity to manage their own affairs and, if so, who should be appointed as their guardian and administrator. Key issues included the weight to be given to the medical opinion of a specialist geriatrician and the reliance on screening tools such as the Rowland Universal Dementia Assessment Scale (RUDAS) to establish capacity. Additionally, the court had to consider the suitability of family members proposed as guardians, in light of entrenched family conflict and concerns about their ability to act impartially in NDB's best interests.

The Family Court found that NDB did lack capacity to manage their own affairs, primarily due to evidence of impaired judgment in real-world situations and multiple RUDAS tests indicating cognitive decline. The court also noted the independence of interpreters used in Tribunal proceedings, ensuring that NDB's views were accurately represented. Despite family members being proposed as guardians, the court found them unsuitable due to entrenched family conflict and concerns about their ability to act in NDB's best interests. Ultimately, the court appointed an independent professional as NDB's guardian and administrator, ensuring that NDB's interests were protected.

The final orders of the court appointed an independent professional as the guardian and administrator of NDB, with specific directions regarding the management of NDB's affairs and ongoing medical assessments. The court also directed that family members would have supervised contact with NDB, reflecting the need to balance NDB's best interests with the importance of maintaining family relationships.

Orders