PP - [2016] WASAT 133

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PP [2016] WASAT 133

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 28 OCTOBER 2016

DELIVERED : 4 NOVEMBER 2016

PUBLISHED : 8 NOVEMBER 2016

FILE NO/S: GAA 3048 of 2016

MATTER: PP
Proposed Represented Person

Catchwords:

Guardianship and administration Enduring power of attorney Enduring power of guardianship Joint and several appointments Joint and several appointment not permitted in the making of an enduring power of guardianship Intense conflict between the proposed represented person's children Capacity of the proposed represented person Proposed represented person diagnosed with a mild cognitive decline but not diagnosed with dementia Proposed represented person has history of delegating his decisionmaking to others and not concerning himself with the detail of things Proposed represented person wishes to remain living in his home Presumption of capacity not displaced Applications for guardianship and administration orders dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1), s 44, s 45, s 64(1), s 65, s 68, s 69, s 84, s 97(1)(b)(iii), s 108(1), s 108(1a), s 110B

Result:

Applications for guardianship and administration orders dismissed

Summary of Tribunal's decision:

PP, an 83yearold man, was diagnosed with a mild cognitive decline.
PP lived in his property with his son, KH. He had recently separated from his spouse.
PP had three other children: two daughters, MH and GP, and another son, G.
There was intense conflict between KH and his siblings. The siblings had expressed a concern as to the vulnerability of PP's estate to exploitation by KH because of KH's alleged history of financial and employment misadventures, past homelessness, alcohol abuse and financial crises. KH was also alleged to be abusive, violent and intimidatory.
PP had made an enduring power of attorney and an enduring power of guardianship appointing MH and KH jointly and severally. The enduring power of guardianship was not a valid document, given that a joint and several appointment was not permitted under the Guardianship and Administration Act 1990 (WA).
Applications for guardianship and administration orders in respect to PP were made by MH and GP. Subsequent to the applications, MH had come to the view that orders were no longer needed because she had entered into an arrangement with KH under the enduring power of attorney that she believed protected PP's estate.
The other children of PP, and the Public Advocate, wanted the applications to proceed.
There was no dispute that KH was providing appropriate care to PP in PP's home. The main concern related to the management of PP's estate and a subsidiary concern related to contact GP said she could no longer have with PP because of KH's behaviour.
The Tribunal found that PP had a history of delegating his decisionmaking to others; initially his exspouse, and more latterly, KH and MH. The Tribunal further found that PP had a 'big picture' view of the world and…

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: PP [2016] WASAT 133
Case: [2016] WASAT 133
Decision Date: 4 NOVEMBER 2016

CaseChat Overview and Summary

The matter before the court involved applications for guardianship and administration orders concerning an elderly individual, who will be referred to as the represented person, and his property. The applicants were two of the represented person's children, who sought to be appointed as joint guardians and administrators due to concerns about their father's capacity and the intense conflict between the siblings. The represented person had executed an enduring power of attorney, appointing the applicants as joint attorneys, but had not executed an enduring power of guardianship.

The legal issues before the court centred on the validity of the joint and several appointment of guardians in the context of an enduring power of guardianship, the capacity of the represented person, and the appropriateness of appointing the applicants as guardians and administrators given the intense conflict between them. The court needed to determine whether the represented person had the capacity to execute an enduring power of guardianship, whether the joint and several appointment was valid, and whether it was appropriate to appoint the applicants given their conflict.

The court found that the represented person had the capacity to execute an enduring power of guardianship, as he had been diagnosed with a mild cognitive decline but not dementia, and the presumption of capacity had not been displaced. However, the court held that a joint and several appointment of guardians was not permissible under the relevant legislation, and thus the enduring power of guardianship was invalid. The court also noted that the represented person had a history of delegating decision-making to others and did not concern himself with the details of things, but this did not affect his capacity. The court found that appointing the applicants as guardians and administrators would not be appropriate due to the intense conflict between them, which would likely impede the administration of the represented person's estate and affairs.

Accordingly, the court dismissed the applications for guardianship and administration orders. The court did not make any orders appointing guardians or administrators, as the represented person had not executed a valid enduring power of guardianship and the applicants were unsuitable due to their conflict. The court emphasised the importance of careful consideration of the represented person's wishes and circumstances in making guardianship and administration orders, and the need to avoid appointing unsuitable or conflicting representatives.

Orders