Re AM; - [2012] WASAT 137

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 2012
EX PARTE
AM
First applicant
BA
Second applicant
AND
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):

KS [2008] WASAT 29

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…

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 Re AM;

Details

AGLC: Re AM; ex parte JS [2012] WASAT 137
Case: [2012] WASAT 137
Decision Date: 9 MARCH 2012

CaseChat Overview and Summary

In the Family Court of Australia, the case of Re AM involved the guardianship and administration of AM, who had been diagnosed with dementia. The dispute centred around the management of AM's affairs and the conflicting interests of AM's children, particularly concerning allegations of financial mismanagement and the recovery of money. The court was tasked with determining whether a guardianship order and an administration order were necessary to manage AM's affairs effectively.

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