PG and KRL - [2010] WASAT 30

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PG and KRL [2010] WASAT 30

MEMBER: MS F CHILD (MEMBER)

HEARD: 13 NOVEMBER 2009

DELIVERED : 25 FEBRUARY 2010

FILE NO/S: GAA 2622 of 2009
GAA 2621 of 2009

BETWEEN: PG
Applicant
AND
KRL
Represented Person

Catchwords:

Guardianship and administration Application for the appointment of a guardian and an administrator - Conflict between family and friends of the represented person - Diagnosis of dementia - Existing enduring power of attorney - Wishes of the represented person - Need for independent decisionmaker to decide where the represented person should live

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44(2)
State Administrative Tribunal Act 2004 (WA), s 76

Result:

Public Advocate appointed limited guardian
Application for the appointment of an administrator dismissed

Category: B

Representation:

Counsel:

Applicant: Mr R McDonald
Represented Person : Self-represented

Solicitors:

Applicant: William Hughes
Represented Person : Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Public Advocate was appointed the limited guardian of an elderly woman whose capacity to make personal decisions was impaired.
The Tribunal decided that an independent guardian was needed because, although the woman had a supportive network, conflict had arisen among her close friends and the donees of her enduring power of attorney as to what decisions were appropriate for her. Some of the friends disputed that the woman's capacity to make decisions was impaired. The conflict which had arisen was distressing to her and, in the judgment of the Tribunal, she required an independent guardian to advocate for her interests in any decision made about where she was to live.
The application before the Tribunal for the appointment of an administrator was dismissed. The woman had executed an enduring power of attorney in 2006 and there was no evidence this was not working effectively to manage her finances. The Tribunal decided there was no need for an administration order to be made.

The applications

These reasons relate to determinations of the Tribunal of applications filed in October 2009 regarding KRL (represented person). An application for the appointment of a guardian for the represented person was submitted by PG, (applicant), who is her accountant and one of the donees of her enduring power of attorney (EPA).
The represented person is a widow, has no children, and her brothers and sisters reside outside Western Australia. In March 2006, she appointed her accountant and a niece as the donees of her EPA.
The appointment of a guardian was said to be required for the represented person because she was in hospital and there was a need for decisions about medical treatment for her.
The application was treated as an application for the appointment of an administrator as well. In the course of the submissions in respect of the application, it is clear that the applicant believed that the EPA made in favour 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 PG and KRL

Details

AGLC: PG and KRL [2010] WASAT 30
Case: [2010] WASAT 30
Decision Date

CaseChat Overview and Summary

PG applied to the State Administrative Tribunal to have a guardian and an administrator appointed for KRL, an elderly woman whose capacity to make personal decisions was impaired. PG was KRL's accountant and one of the donees of her enduring power of attorney. KRL was in hospital and required decisions to be made about her medical treatment. The application was treated as an application for the appointment of an administrator as well. The represented person was in a care-awaiting placement facility, having been discharged from hospital. There was a disagreement as to whether the represented person should move into residential care or should return to her own home with support services. It was reported that the represented person had expressed differing views about this issue to those within her network and a dispute had arisen between them, in particular, her friends and neighbours and the donees of her EPA.

The legal issues the court was required to decide included whether KRL was a person for whom a guardianship order could be made and whether an independent guardian was needed because of the conflict between KRL's close friends and the donees of her enduring power of attorney as to what decisions were appropriate for her. The court was also required to decide whether an administration order should be made to appoint an administrator for KRL's estate.

The court found that KRL was a person for whom a guardianship order could be made because she was incapable of looking after her own health and safety and was unable to make reasonable judgments in respect of matters relating to her person. The court found that an independent guardian was needed because of the conflict between KRL's close friends and the donees of her enduring power of attorney as to what decisions were appropriate for her. The court found that the application for the appointment of an administrator should be dismissed because there was no evidence that the donees of KRL's enduring power of attorney were not working effectively to manage her finances.

The court appointed the Public Advocate as KRL's limited guardian with the following functions: (a) to decide where KRL is to live, whether permanently or temporarily; (b) to decide with whom KRL is to live; (c) subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990, to consent to any treatment or health care of KRL; and (d) to determine the services to which KRL should have access. The court approved delegation by the Public Advocate of her functions as guardian of KRL to an officer or employee employed in the Office of the Public Advocate. The court dismissed the application for the appointment of an administrator for KRL's estate.

Orders