JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RE AM; EX PARTE JS [2012] WASAT 137
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 13 FEBRUARY 2012
DELIVERED : 9 MARCH 2012
PUBLISHED : 3 JULY 2012
FILE NO/S: GAA 3643 of 2011
GAA 3644 of 2011
GAA 4082 of 2011
GAA 538 of 2012EX PARTE
AM
First applicantBA
Second applicantAND
JS
Represented person
Catchwords:
Guardianship and administration - Enduring power of attorney - Conflict between children of represented person - Restraining order - Action for recovery of money - Allegations of financial mismanagement - Whether money owed by son to represented person - Need for guardianship order - Consent to medical treatment - Represented person's contact with children - Public Advocate to be involved in limited way - Need for administration order - Public Trustee to be involved in limited way - Enduring power of attorney revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(a), s 4(2)(b), s 4(2)(c), s 4(2)(d), s 16(4), s 43, s 43(1)(b), s 43(1)(b)(ii), s 64, s 64(1), s 64(1)(a), s 97(1)(b)(iii), s 108(1a)(a), s 109, s 109(1)(b), s 109(1)(c), s 110ZD(5)(a), s 110ZD(5)(b)
Transfer of Land Act 1893 (WA), s 143(1)
Result:
Guardianship and administration orders made
Enduring powers of attorney revoked
Category: B
Representation:
Counsel:
First applicant : No appearance
Second applicant : Ms H Athanasiou
Represented person : No appearance
Solicitors:
First applicant : N/A
Second applicant : Ferrier, Athanasiou & Kakulas
Represented person : N/A
Case(s) referred to in decision(s):
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The children of an elderly woman were in conflict about what personal and financial decisions should be made for her. Two of the children, a daughter and son, lived outside of Western Australia. The woman lived with another daughter in Western Australia.
The mistrust that existed between the daughter in Western Australia and the woman's other children (and their respective partners) was of such intensity that allegations had been made that the woman was not being adequately cared for, and that her estate was not being managed in her best interests. There had been legal action on several fronts purportedly in the woman's best interests, including action for a restraining order against the daughter living interstate and action for return of the woman's funds that were being held by that daughter and the woman's son.
Applications were made for guardianship and administration orders for revocation of an enduring power of attorney, and for an order requiring the records and accounts kept by the current attorney (the daughter in Western Australia) to be audited. It was also alleged that the son owed the woman the balance of a loan she had given him some years previously.
The Tribunal found that the woman was receiving appropriate care and support from the daughter with whom she was living, and that it was in her…
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- AGLC
- Re AM; ex parte JS [2012] WASAT 137
- Case
- [2012] WASAT 137
- Decision Date
CaseChat Overview and Summary
The primary legal issues were whether a guardianship order was needed to manage AM's personal and financial affairs and whether an administration order was necessary to address the allegations of financial mismanagement. The court also had to consider the role of the Public Advocate and the Public Trustee in these matters. Furthermore, the court had to decide on the validity of the enduring power of attorney that was in place and whether it had been properly revoked.
The court concluded that a guardianship order was necessary to manage AM's personal and financial affairs due to AM's incapacity. The Public Advocate was appointed to assist in a limited capacity, focusing on ensuring AM's welfare and rights were protected. An administration order was also granted, with the Public Trustee appointed to manage AM's financial affairs in a limited way to address the allegations of mismanagement. The court found that the enduring power of attorney had been revoked, which influenced the decision to appoint the Public Trustee. The court also considered the need for AM to maintain contact with her children and the necessity for consent to medical treatment.
The final orders included the appointment of the Public Advocate as AM's guardian and the Public Trustee as AM's administrator, both in limited capacities. The court also granted restraining orders to protect AM from undue influence and financial mismanagement by her children. The enduring power of attorney was declared revoked, and the court outlined the specific roles and limitations of the Public Advocate and the Public Trustee in managing AM's affairs.
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
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Ratio Decidendi
Legal Principle Established
Established by: MR J
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