PG - [2021] WASAT 81 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
CITATION:   PG [2021] WASAT 81
MEMBER:   PRESIDENT PRITCHARD
MS F CHILD, MEMBER
MS H M LESLIE, SESSIONAL MEMBER

HEARD:   24 FEBRUARY 2021
DELIVERED          :   10 JUNE 2021
FILE NO/S:   GAA 3558 of 2020

PG
Proposed Represented Person
MB
MY
Applicants

Catchwords:

Guardianship and administration - Application pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) - Application to revoke enduring power of attorney - Application to appoint family members as administrators - Where conflicting medical reports as to represented person's capacity to make reasonable judgments in respect of estate - Where conflicting lay evidence as to represented person's capacity to make reasonable judgments in respect of estate

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17A, s 17A(1), s 40(1), s 43, s 44, s 45, s 64, s 65, s 84, s 106 (1), s 107, s 109, s 110N
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)

Result:

Application dismissed

Representation:

Counsel:

Proposed Represented Person	:	In Person
Applicants	:	In Person

Solicitors:

Proposed Represented Person	:	N/A
Applicants	:	N/A

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

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
GC and PC [2014] WASAT 10
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

REASONS FOR DECISION OF THE TRIBUNAL

The Application

MB and MY (Applicants), the daughters of PG, have applied pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) for a review by the Full Tribunal of decisions made by Member McGivern on 8 September 2020 (s 17A Application).
The first application which was heard by Member McGivern was an application made by MB pursuant to s 109(1)(c) of the GA Act to revoke an enduring power to attorney (EPA) made by PG in 2020, by which PG appointed her brother, KB, to exercise the powers of an attorney (2020 EPA). The second application before Member McGivern was an application by MB pursuant to s 106(1) of the GA Act, which permits the donee of an EPA to apply for a declaration that the donor no longer has legal capacity and to bring the EPA into force.
The relief sought in those two applications was inconsistent. The Tribunal discerned that what MB in fact sought was to revoke the 2020 EPA, together with an enduring power of guardianship (EPG) also made by PG in 2020 (2020 EPG), and to reenliven an earlier EPA made by PG in 2014 (2014 EPA). (Under the 2014 EPA, PG appointed her husband, RG, to be her attorney, and upon his death or incapacity from a mental disability, appointed MB and MY as her substitute attorneys.[1] RG passed away in November 2020.)
[1] The 2014 EPA was styled to be in effect from execution and was not subject to any…

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: PG [2021] WASAT 81
Case: [2021] WASAT 81
Decision Date

CaseChat Overview and Summary

In the matter of PG, the court addressed an application under the Guardianship and Administration Act 2000 (NSW) (GA Act) to determine whether an administrator should be appointed for PG's estate. PG, the person in question, had previously executed an enduring power of attorney (EPA) appointing KB as her attorney. The applicants, PG's family members, sought to have PG declared incapable of managing her own affairs and to have an administrator appointed over her estate. The central issue before the court was whether PG lacked the capacity to make reasonable judgments in respect of matters relating to her estate, and if so, whether an administrator should be appointed. The court had to balance the presumption of PG's capacity to manage her own affairs against the evidence presented by the applicants and KB.

The court examined the evidence provided by the parties, including statements from PG, KB, and other witnesses, as well as financial and tax documents related to PG's farming business. The applicants argued that PG's decisions regarding her estate were influenced by her son, KB, and that she lacked the capacity to make independent decisions. In contrast, KB and PG herself contended that PG was capable of managing her affairs. The court considered the legal principles set out in the GA Act, particularly the requirement for the Tribunal to be satisfied that PG was unable to make reasonable judgments in respect of her estate and that she was in need of an administrator. The court also noted the importance of considering less restrictive alternatives to appointing an administrator.

After evaluating the evidence, the court concluded that PG had the capacity to make reasonable judgments in respect of matters relating to her estate. The court found that PG's decision to appoint KB as her attorney and her management of her farming business demonstrated her capacity to make informed and rational decisions. The court further determined that PG was not in need of an administrator, as her needs could be met without the imposition of an administration order. Consequently, the application to appoint an administrator was dismissed.

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

In addition, every person is presumed to be capable of, amongst other things, looking after their own health and safety and making reasonable judgments in respect of matters relating to their person (collectively, decision-making capacity), until the contrary is proved to the satisfaction of the Tribunal.[10] That important presumption applies in respect of every application under the GA Act, including the present s 17A Application.[10] GA Act s 4(3). The decision made by Member McGivern which is the focus of the s 17A Application is the decision whether to appoint an administrator in respect of PG's estate. The Tribunal may appoint an administrator only if it is satisfied of the requirements set out in s 64 of the GA Act. The Tribunal must be satisfied, first, that the (P)RP is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his or her estate, and secondly, that the (P)RP is in need of an administrator of his or her estate. Accordingly, even if a finding of incapacity is made under s 64(1) of the GA Act in respect of a (P)RP, the Tribunal must further determine whether that person is in need of an administration order. If the needs of a (P)RP can be met in a manner less restrictive of their freedom of decision and action than by the making of orders by the Tribunal, then orders should not be made.[11] (A less restrictive alternative might be to rely upon an existing EPA made by a (P)RP, appointing a suitable person to act for them in the event that they lose capacity.) If the Tribunal decides that the (P)RP is in need of an administrator then it must decide who should be appointed, what authority should be given to the appointee, and what review date should be set.[12] Before turning to apply these principles in the present case, it is convenient to briefly outline the nature of the evidence which was before the Tribunal on the s 17A Application. The Applicants sent the Tribunal a variety of documents in the form of statements of their views, or their observations of PG's conduct, or of KB's conduct as the donee of power under the 2020 EPA. KB provided the Tribunal with documents in the form of statements of his views as to PG's capacity to make financial and other decisions, his observations of PG's conduct and the conduct of the Applicants; tax information in relation to the farming business; and copies of the 2020 EPA and 2020 EPG. JDG also provided the Tribunal with documents in the form of statements of her evidence relating to the conduct of the farming business and the relationships within PG's family, and financial information in relation to the farming business and the property. GW, a friend of PG's for many years, provided a number of documents in the form of statements of her evidence. The Applicants and JDG attended the hearing in person and gave evidence and made submissions. PG and KB each attended the hearing by telephone, as did GW. After PG had given her evidence and made clear her views on the s 17A Application, she chose to disconnect her telephone link to the hearing, and did not participate in the balance of the hearing.

Ratio Decidendi

Legal Principle Established

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