RC and LP and AC - [2006] WASAT 370

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RC and LP and AC [2006] WASAT 370

MEMBER: MS D DEAN (MEMBER)
MR J MANSVELD (MEMBER)
DR G HAMILTON (SENIOR SESSIONAL MEMBER)

HEARD: 9 MAY 2006
12 JUNE 2006
9 OCTOBER 2006

DELIVERED : 18 DECEMBER 2006

FILE NO/S: GAA 590 of 2006

BETWEEN: RC and LP
Applicants
AND
AC
Represented Person

Catchwords:

Application for administration - Capacity to make reasonable decisions - Family conflict - Enduring power of attorney revoked - Need for an administrator - Public Trustee appointed administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 64(1), s 70, s 107, s 108(1)(a)

Result:

The Public Trustee appointed plenary administrator for a period of 5 years
The enduring power of attorney executed 21 April 2006 is revoked

Category: B

Representation:

Counsel:

Applicants: G Papamihail
Represented Person : Self-represented

Solicitors:

Applicants: George Papamihail Barristers & Solicitors
Represented Person : Self-represented

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal’s decision

The applicants, RC and LP, son and daughter of AC, sought the appointment of an administrator for their father, AC, because of concerns that he had recently changed his will leaving the family home to his other son, KC, and daughter‑in‑law, NC. This would effectively leave AC's disabled daughter with little or no funds for her future care. In the past, AC's wills had always made significant provision for his disabled daughter.
A further concern was the fact that AC had recently revoked an enduring power of attorney in which he appointed RC and KC as donees. AC subsequently executed an enduring power of attorney appointing KC as sole donee. KC had been operating the enduring power of attorney and making decisions which the applicants believed were not in their father's best interests. The applicants said that the enduring power of attorney was not workable because of the level of conflict and lack of communication between them and their brother, KC, who, they said, did not include them in any of the major financial decisions in respect of their father, AC.
The matter was heard over three hearings, being adjourned the second time to allow additional clarifying information about AC's capacity to be sought. At the third hearing, and with the benefit of capacity reports from two geriatricians, it was agreed by all parties that AC did not have the capacity to make reasonable judgments about matters relating to his estate.
Evidence was provided at the hearings that AC had a history of overspending his Centrelink income by approximately $150 per fortnight. KC, who by his own account had been managing his father's financial affairs for some years, had not put in place any strategies to manage this problem. The siblings decided to take out a reverse mortgage on the family home to repay AC's debts and to ensure that he had adequate funds to last him several…

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 RC and LP and AC

Details

AGLC: RC and LP and AC [2006] WASAT 370
Case: [2006] WASAT 370
Decision Date: 18 DECEMBER 2006

CaseChat Overview and Summary

The application was made by AC, a daughter of LP, who sought the appointment of an administrator for her mother, LP, in the Family Court. LP had previously revoked an enduring power of attorney granted to AC and was the subject of family conflict. The court was tasked with determining whether AC had the capacity to make reasonable decisions and whether an administrator was needed to manage LP's affairs. The court considered whether the revocation of the power of attorney was valid and if AC was capable of making reasonable decisions regarding her mother's care.

The court was required to consider the validity of the revocation of the power of attorney and assess whether AC had the capacity to make reasonable decisions for LP. It also needed to determine if the appointment of an administrator was necessary due to the family conflict and the potential for abuse or neglect. The court examined the circumstances surrounding the revocation of the power of attorney and the reasons provided by LP for doing so. Furthermore, the court assessed AC's ability to make reasonable decisions, considering her relationship with LP and the impact of the family conflict on their interactions.

The court found that the revocation of the power of attorney was valid, as LP had the mental capacity to revoke it. However, the court determined that AC did not have the capacity to make reasonable decisions for LP due to the ongoing family conflict, which affected her ability to act in her mother's best interests. The court appointed the Public Trustee as the administrator to manage LP's affairs, recognising the need to protect her from potential abuse or neglect. The court's decision was based on the evidence presented regarding LP's mental capacity, the family conflict, and the impact on AC's ability to make reasonable decisions.

The final orders of the court included the appointment of the Public Trustee as the administrator for LP, with AC being notified of the decision and given the opportunity to provide input regarding her mother's care. The court also ordered that AC's capacity to make reasonable decisions be reviewed in the future, should circumstances change. The orders aimed to protect LP's interests while considering the family conflict and the need for an administrator to manage her affairs.

Orders