PB [2016] WASAT 122

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 122
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:3024/2016	Heard:	4 OCTOBER 2016
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	7/10/16
No of pages:	20	Judgment Part:	1 of 1
Result:	The Public Trustee appointed as limited administrator
Category:	B
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Parties:	PB
Catchwords:	Guardianship and administration Enduring power of attorney Enduring power of guardianship Presumption of capacity Terminal illness Poor prognosis Illness and treatment impacting on cognitive capacity Presumption of capacity not displaced for personal matters Family Court action Property settlement Case guardian in the Family Court Family Court Rules 2004 Administrator appointed for Family Court action Enduring power of attorney varied to remove inconsistency with the power given under the administration order
Legislation:	Family Court Rules 2004 Family Law Rules 2004, r 6 Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(5), s 4(6), s 43, s 44, s 45, s 45(2)(g), s 45(2)(h), s 64, s 68, s 69, s 69(4), s 84, s 97, s 97(1)(b)(iii), s 108(1), s 108(1a), s 108(1a)(a), s 109(1)(c), s 110F, s 110N(1)(a), s 110ZD
Case References:	GC and PC [2014] WASAT 10
Summary	PB, a 62yearold man, had been diagnosed with a terminal illness. The prognosis at the time of the Tribunal hearing was measured in months.,PB lived with his de facto partner, JL, who was his attorney under an enduring power of attorney (EPA) and his guardian under an enduring power of guardianship (EPG).,PB separated from his former spouse, VB, in about June 2013 and was formally divorced in about July 2015.,VB made four applications in respect to PB, pursuant to the Guardianship and Administration Act 1990 (WA). The applications were for the appointment of a guardian, the appointment of an administrator and revocation of the EPA and EPG (applications).,Prior to making the applications VB had commenced action in the Family Court for a property settlement (Family Court action).,The medical evidence before the Tribunal was consistent in regards to PB's current capacity to make decisions concerning his medical treatment, accommodation and the provision of support services. These were the main areas in PB's personal life that required decisions to be made as he approached his death.,The Tribunal found that in the arrangements he had consented to for his care, PB was currently capable of looking after his own health and safety and able to direct the oversight he needed. The Tribunal further found that PB was currently able to make reasonable judgments about his treatment, living situation and support services.,The Tribunal found that in personal matters the presumption of capacity was not displaced.,If in the near future, PB became incapable of making these decisions, the Tribunal decided that the EPG should be allowed to operate.,The applications for the appointment of a guardian and the revocation of the EPG were therefore dismissed.,There were two aspects to the management of PB's estate.,The first was the management of PB's pension income and how it…

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: PB [2016] WASAT 122
Case: [2016] WASAT 122
Decision Date: 7 OCTOBER 2016

CaseChat Overview and Summary

The parties involved in this case were PB, who held an enduring power of attorney and an enduring power of guardianship, and the Public Trustee of Victoria. The dispute arose from the need to determine whether PB had the capacity to manage her personal affairs and engage in family law proceedings in light of her terminal illness and poor prognosis. The matter was heard in the Family Court of Australia. The central legal issues the court had to address were whether PB's capacity to manage her personal affairs and engage in family law proceedings had been affected by her terminal illness and whether the presumption of capacity under the Powers of Attorney Act 2014 had been displaced. The court also needed to consider the implications of PB's capacity on the administration of her property in the context of a family law proceeding.

The Family Court found that while PB's terminal illness and the associated treatments had impacted on her cognitive capacity, the presumption of capacity under the Powers of Attorney Act 2014 had not been displaced in relation to personal matters. The court held that PB retained the capacity to manage her personal affairs, including her ability to engage in family law proceedings. However, the court did determine that PB lacked the capacity to manage her property. Consequently, the Public Trustee was appointed as a limited administrator to manage PB's property in the Family Court action. To remove any inconsistencies between the enduring power of attorney and the administration order, the enduring power of attorney was varied accordingly.

The court's decision underscored the importance of assessing capacity in the context of terminal illness and highlighted the need for clear distinctions between personal and property matters. The final orders included the appointment of the Public Trustee as a limited administrator for the Family Court action and the variation of the enduring power of attorney to align with the administration order.

Orders

Orders of the court

The Public Trustee appointed as limited administrator

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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