NS - [2024] WASAT 130

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   NS [2024] WASAT 130
MEMBER:   MS F CHILD, MEMBER
HEARD:   13 MAY 2024 AND 14 OCTOBER 2024
DELIVERED          :   29 NOVEMBER 2024
PUBLISHED           :   29 NOVEMBER 2024
FILE NO/S:   GAA 1794 of 2024

NS
Proposed Represented Person

Catchwords:

Guardianship and administration - Application for the appointment of guardian and administrator - Proposed represented person with diagnosis of dementia - Whether proposed represented person lacking capacity to make reasonable judgments about her person and her estate - Whether a need for an administrator - Large complex estate jointly held with spouse - Allegations of lack of capacity and coercion in the execution of an enduring power of attorney - No persuasive evidence of coercion - Presumption of capacity to execute instrument - Enduring power of attorney a less restrictive alternative to meet financial decision-making needs - No need for administration order - Whether a need for a guardian to make decisions about medical treatment services accommodation and restrictive practices - Spouse demonstrating cognitive impairment - Need for a guardian - No less restrictive means to meet needs - Conflicting proposals for appointment as guardian - Suitability for appointment - Ongoing family conflict - Criteria to be considered - Compatibility of proposed appointee with appointed attorneys analogous to compatibility with an appointed administrator and a relevant consideration - Public Advocate appointed guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 43(1)(b), s 43(1)(c), s 44, s 44(2)(a), s 44(2)(b), s 64(1), s 68, s 87, s 102, s 104, s 104(1a), s 107(1)(a), s 107(1)(b), s 107(1)(c), s 108, s 109, s 110A, s 110B, s 110ZD, s 110ZD(2)(a), s 110ZD(3), s 110ZH(a)(iii), Sch 3

Result:

Public Advocate appointed limited guardian
Leave granted to withdraw application for the appointment of an administrator

Category: B

Representation:

Counsel:

Proposed Represented Person

Mr H Chew

Solicitors:

Proposed Represented Person

Success Legal

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

Attorney-General v Parnther (1792) 29 ER 632
Banks v Goodfellow (1870) LR 5 QB 549
Crago v McIntyre [1976] 1 NSWLR 729
EW [2010] WASAT 91
Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423
Murphy v Doman [2003] NSWCA 249
Ricetti v Registrar of Titles [2000] WASC 98
Szodzda v Szodzda [2010] NSWCA 804

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These are the reasons for the decisions made on an application for the appointment of a guardian and administrator for NS brought under the Guardianship and Administration Act 1990 (WA) (GA Act).
In all reported decisions of the Tribunal in GA Act matters, any identifying information is removed to protect the privacy of NS.

Application and proceeding before the Tribunal

An application seeking the appointment of a guardian and an administrator of NS's estate was made to the Tribunal on 10 April 2024 by NS's daughter-in-law, C and her son R (the…

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.

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Details

AGLC: NS [2024] WASAT 130
Case: [2024] WASAT 130
Decision Date: 29 NOVEMBER 2024

CaseChat Overview and Summary

In the matter of NS, the Full Court of the Federal Circuit and Family Court of Australia was called upon to determine the appointment of a guardian and administrator for a person diagnosed with dementia. The application was brought by the daughter of the proposed represented person, who sought to have herself appointed as both guardian and administrator. The court was required to decide whether the represented person lacked the capacity to make reasonable judgments concerning her person and estate, and if an administrator was necessary due to the complexity of her estate, jointly held with her spouse. Additionally, the court needed to assess the validity of an enduring power of attorney, which the daughter alleged was executed under coercion, and to evaluate the suitability of various proposed guardians amidst allegations of ongoing family conflict.

The court found that there was insufficient evidence to conclude that the represented person lacked capacity to execute an enduring power of attorney, and the presumption of capacity was not rebutted. Given that the estate was large and complex, jointly held with her spouse, the court held that an administration order was not necessary. Regarding the need for a guardian, the court determined that the represented person's spouse, who also exhibited cognitive impairment, necessitated a guardian to manage decisions about medical treatment, services, accommodation, and restrictive practices. The court concluded that no less restrictive means were available to meet these needs, and thus, a guardianship order was required. The court also considered the suitability of various proposed guardians, including the daughter, and ultimately appointed the Public Advocate as guardian, given the ongoing family conflict and the lack of a less restrictive alternative.

The court's final orders included the appointment of the Public Advocate as the guardian for the represented person, tasked with making decisions about her medical treatment, services, accommodation, and restrictive practices. The court dismissed the application for an administration order, finding no need for an administrator. The decision highlighted the importance of considering the represented person's capacity, the appropriateness of an enduring power of attorney, and the suitability of proposed guardians, while also acknowledging the need to balance family dynamics and the least restrictive means to meet the represented person's needs.

Orders