NE

Case [2023] WASAT 30


JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   NE [2023] WASAT 30

MEMBER:   MS F CHILD, MEMBER

HEARD:   1 SEPTEMBER 2022 AND 11 JANUARY 2023

DELIVERED          :   12 APRIL 2023

FILE NO/S:   GAA 2923 of 2022

GAA 3367 of 2022

NE

Represented Person


Catchwords:

Guardianship and Administration - Application for review of administration order pursuant to s 85 of the Guardianship and Administration Act 1990 (WA) alleging neglect, misconduct or default - Statutory review pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) of administration and guardianship orders falling due - Reviews heard together - Whether s 77 of the Guardianship and Administration Act 1990 (WA) permits represented person to appoint an agent - Application for review dismissed - Appointments of guardians confirmed - Potential legal action to assert represented person's equitable interest in property of her parents - Need for independent administrator - Public Trustee confirmed as administrator

Legislation:

Family Law Act 1975 (WA) (C'wealth)
Guardianship and Administration Act 1990 (WA), Pt 9, s 3, s 4, s 4(3), s 4(4), s 4(6), s 4(7), s 43, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44(1)(b), s 44(2)(b), s 44(2)(d), s 64, s 64(1), s 64(1)(a), s 64(1)(b), s 69(3), s 70, s 70(1), s 70(2), s 70(2)(e), s 70(2)(g), s 71, s 71(2), s 71(4), s 72(3)(a), s 72(3)(b), s 77, s 77(1), s 77(1)(a), s 77(1)(b), s 79(1), s 84, s 85, s 85(1)(c), s 85(2), s 87, s 102, s 108(1a), s 108(2)(a), s 108(2)(b), s 112, s 113
Guardianship and Administration Act 2019 (Victoria)
Mental Health Act 2014 (WA)
Property Law Act 1969 (WA)
Public Trustees Act 1941 (WA), s 43, s 47, s 47(2), 47(3), s 60

Result:

Guardianship orders confirmed
Public Trustee confirmed as plenary administrator

Category:    B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

CD [2020] WASAT 41

Ford and Marshall v Marshall & Anor [2003] WASC 116

Full Board of the Guardianship and Administration Board, Re (2003) 27 WAR 475

Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423

KS [2008] WASAT 29

RK [2022] WASAT 112

SAL and JGL [2016] WASAT 63

SM [2019] WASAT 22

Szozda v Szozda [2010] NSWSC 804

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

  1. L and R (applicants), sisters of NE applied to the Tribunal pursuant to s 85(2) of the Guardianship and Administration Act 1990 (WA) (GA Act) for review of an order dated 11 October 2021 by which the Public Trustee is appointed as the plenary administrator of NE's estate.  The application alleged the Public Trustee had been guilty of neglect or misconduct and was unfit to continue as the administrator of NE's estate.[1]

    [1] Application form filed 4 July 2022.

  2. The administration order and guardianship orders made for NE, fell due for review pursuant to s 84 of the GA Act in October 2022.[2] 

    [2] Section 84 of the…

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Details
AGLC
NE [2023] WASAT 30
Case
[2023] WASAT 30
Decision Date

CaseChat Overview and Summary

The case involves an application for review of administration and guardianship orders made under the Guardianship and Administration Act 1990 (WA), with the primary focus on whether a represented person can appoint an agent and the scope of section 77 of the Act. The application for review was dismissed, and the appointments of guardians were confirmed. The potential for legal action to assert the represented person's equitable interest in the property of her parents was noted, and the Public Trustee was confirmed as the administrator.

The legal issues addressed in this case centred around the interpretation and application of section 77 of the Guardianship and Administration Act 1990 (WA). The court had to determine whether the section permits a represented person to appoint an agent and the extent to which the represented person can be excluded from making decisions regarding their estate. The case also examined whether the plenary administrator's powers are absolute during the currency of an administration order, and whether these powers are consistent with other provisions of the Act.

The court examined the language of section 77(1) of the Guardianship and Administration Act 1990 (WA) and concluded that the words 'in respect thereof' refer to the estate of the represented person, not limiting the scope of the represented person's powers. The court found that the plenary administrator's authority to deal with the estate of the represented person during the currency of the administration order is supported by other provisions of the Act. The court also noted that the represented person is conclusively presumed incapable of performing any act that affects their estate or affairs while an administration order is in force.

The final orders confirmed the appointments of guardians, dismissed the application for review, and acknowledged the potential for legal action to assert the represented person's equitable interest in the property of her parents. The Public Trustee was confirmed as the administrator.

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

In SM [2019] WASAT 22, a decision of the Tribunal was concerned with the powers of an appointed administrator to make a binding death benefit nomination on behalf of a represented person. It also addressed whether s 77(1)(a) of the GA Act prohibited a person the subject of an administration order from making a testamentary disposition and not whether the represented person could appoint an agent nor the scope of s 77 generally.[55] [55] Following Full Board of the Guardianship and Administration Board, Re (2003) 27 WAR 475 that s 77(1) of the GA Act does not apply to the making of any will or testamentary instrument. I consider that a plain reading of s 77(1)(b) of the GA Act is not limited in the way suggested. With respect, the better view is that the words 'in respect thereof' refer to the estate of the represented person having regard to the preceding words in s 77(1)(a) of the GA Act. The reference to any power being conferred on an agent and that the authorisation of the administrator and consent of the Tribunal is required, in my view supports this interpretation. The submission that s 77(1)(b) of the GA Act should be read narrowly is also not, in my view, consistent with other provisions[56] of the GA Act as they relate to administration orders. Those provisions reinforce the authority of the plenary administrator to deal with[57] the estate[58] of the represented person during the currency of the administration order to the exclusion of others, including the represented person. Those provisions make subordinate the donee of any surviving EPA to the administrator.[59] I consider that this interpretation is consistent with the relevant authorities.[60] [56] GA Act, s 71(2) provides that a plenary administrator may perform or refrain from performing in relation to the estate or any part of the estate, any function that the represented person could perform if of full legal capacity.[57] With limited exclusions see GA Act, s 72(3)(a) and (b).[58] The 'estate' of a represented person is a reference to 'the aggregate of their property, their assets and liabilities, and in practice encompasses the entirety of their real and personal property and all of their financial affairs: SAL and JGL [2016] WASAT 63 at [22].[59] GA Act, s 108(1a), the Tribunal shall revoke an EPA inconsistent with administration order made, s 108(2)(b) the EPA may be revoked by an administrator and s 108(2)(a) the attorney is accountable to the administrator.[60] See for example JNRD and the Protected Estates Act (1992) 28 NSWLR 728 where the majority held that whilst an administration order is in force the subject person is to be conclusively presumed in law, incapable of performing any act which effects their estate or affairs following Gibbons v Wright (1954) 91 CLR 439­440. Referring to persons about whom a declaration of incapacity had been made the High Court said, 'Such a person is held incompetent to dispose of his property, not because of a lack of understanding (indeed he remains incompetent even in a lucid interval), but because the control, custody and power of disposition of his property has passed to the Crown to the exclusion of himself'. Cited in Johnson v Staniforth [2002] WASCA 97,117 per Roberts­Smith J. While Johnson and Staniforth was found to have been wrongly decided and the decision set aside. (See Full Board of the Guardianship Board) this was on other grounds.