Re George & Hilda (Guardianship) - [2022] ACAT 68

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

RE GEORGE & HILDA (Guardianship) [2022] ACAT 68

GT 157/2021 and GT 158/2021

Catchwords: GUARDIANSHIP – application for review of appointment – suitable person – suitability – conflict of interest

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 9, 31, 32
Court Procedures Act 2004 s 52B
Guardianship and Management of Property Act 1991 ss 5, 9, 10, 16, 19
Supreme Court Act 1970 s 84

Cases cited:Attorney-General v Wentworth (1988) 14 NSWLR 481
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
In the Matter of LQL [2018] ACAT 53

Tribunal:Presidential Member H Robinson
Member AM Delahunt

Date of Orders:  15 June 2022
Date of Reasons for Decision:      27 July 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          GT 157/2021
& GT 158/2021

RE GEORGE & HILDA

TRIBUNAL:Presidential Member H Robinson
Member AM Delahunt

DATE:15 June 2022

ORDER

The Tribunal orders that:

The orders under review, being the orders of 11 February 2022, confirming the appointment of [Sally] as guardian and manager, are reviewed and confirmed.
The Tribunal directs that where [Mark] seeks reimbursement for expenses he has incurred in relation to the care and treatment of the protected person, he must:
(a)Provide the Guardian, [Sally], with an original receipt, or a clear, and complete copy of the full original receipt (not a virtual photograph) in respect of each expense; and
(b)Provide a bundle of receipts to [Sally] on not less than a fortnightly basis;
(c)Include in the bundle a covering document that lists the receipts attached; and
(d)Leave the bundle at either the protected person’s home, or send by post or email to [Sally] at a nominated address.
Pursuant to section 32(2)(c) of the ACT Civil and Administrative Tribunal Act 2008, the applicant, [Mark] is directed not to make a further application for review of this appointment without the leave of the Tribunal. Leave may be sought by writing to the Registrar setting out the grounds upon which the review is sought,
including details of changed circumstances, and attaching any documentation to be relied upon at the hearing.

……………Signed…………..

Presidential Member H Robinson
for and on behalf of the Tribunal

REASONS FOR DECISION

This matter concerns two jointly heard applications for review of the appointment of a guardian and manager under section 9(1) of the Guardianship and Management of Property Act 1991 (GMP Act). The protected persons, George[1] and Hilda[2] are an elderly married couple. The current guardian and manager for both protected persons is their daughter, Sally,[3] who was appointed by a differently constituted tribunal on 21 December 2021. The applications for review were brought by the protected persons’ son, Mark,[4] who sought to have Sally removed as guardian and/or manager and himself appointed in her stead. The Tribunal heard the applications jointly on 6 June 2022 and delivered its decision on 15 June 2022. The Tribunal advised the parties that it would publish its reasons.…

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

Case: [2022] ACAT 68
Decision Date: 15 June 2022

CaseChat Overview and Summary

The case of Re George & Hilda (Guardianship) involved a dispute regarding the appointment of a guardian for George and Hilda, two protected persons under the Guardianship and Management of Property Act (GMP Act). Mark applied for a review of the appointment of Sally as the guardian and manager of George and Hilda. The Australian Capital Territory Civil and Administrative Tribunal (ACAT) reviewed the appointment and confirmed the previous tribunal's decision that Sally was suitable for the role.

The primary legal issue before the court was whether Sally was a suitable person to be appointed as the guardian and manager of George and Hilda. The court was required to consider the criteria outlined in section 10 of the GMP Act, including the compatibility of Sally with the protected persons, her availability and accessibility, and whether her interests and duties were likely to conflict with the protected persons' interests. The court also needed to consider the desirability of preserving existing relationships with family and any other carers, as well as the views and wishes of George and Hilda.

The court found that Sally was a suitable person to be appointed as the guardian and manager of George and Hilda, having regard to the considerations in section 10 of the GMP Act. The previous tribunal had the benefit of speaking with both the protected persons, neither of whom were able to attend before this Tribunal. The court also noted that the previous tribunal had considered the interests and duties of Sally and found that they were not likely to conflict with the interests of George and Hilda to the detriment of their interests. Additionally, the court found that the previous tribunal had given appropriate consideration to the desirability of preserving existing relationships with family and any other carers, as well as the views and wishes of George and Hilda.

The tribunal ordered that the orders under review, being the orders of 11 February 2022, confirming the appointment of Sally as guardian and manager, are reviewed and confirmed. The tribunal also directed that where Mark seeks reimbursement for expenses he has incurred in relation to the care and treatment of the protected person, he must provide Sally with an original receipt or a clear and complete copy of the full original receipt in respect of each expense, provide a bundle of receipts to Sally on not less than a fortnightly basis, include a covering document that lists the receipts attached, and leave the bundle at either the protected person's home or send it by post or email to Sally at a nominated address. Finally, the tribunal directed that Mark is not to make a further application for review of this appointment without the leave of the tribunal.

Orders

Orders of the court

The Tribunal orders that:

The orders under review, being the orders of 11 February 2022, confirming the appointment of [Sally] as guardian and manager, are reviewed and confirmed.

The Tribunal directs that where [Mark] seeks reimbursement for expenses he has incurred in relation to the care and treatment of the protected person, he must:

(a) Provide the Guardian, [Sally], with an original receipt, or a clear, and complete copy of the full original receipt (not a virtual photograph) in respect of each expense; and

(b) Provide a bundle of receipts to [Sally] on not less than a fortnightly basis;

(d) Leave the bundle at either the protected person’s home, or send by post or email to [Sally] at a nominated address.

Pursuant to section 32(2)(c) of the ACT Civil and Administrative Tribunal Act 2008, the applicant, [Mark] is directed not to make a further application for review of this appointment without the leave of the Tribunal. Leave may be sought by writing to the Registrar setting out the grounds upon which the review is sought,

including details of changed circumstances, and attaching any documentation to be relied upon at the hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The considerations that apply when deciding who to appoint as guardian are set out in section 10 of the GMP Act:10 Considerations affecting appointment(1)A person must not be appointed as a guardian or manager unless the person consents in writing to the appointment.(2)A person (except the public trustee and guardian or a trustee company) must not be appointed as a guardian or manager unless the person is an adult and has informed the ACAT on oath whether the person—(a)has been convicted or found guilty of an offence involving violence, fraud or dishonesty; or(b)has been, either in the ACT or elsewhere, refused appointment as a guardian or manager, or removed from office as a guardian or manager; or(c)is bankrupt or personally insolvent (and, if so, has given particulars to the ACAT).Note Bankrupt or personally insolvent—see the Legislation Act, dictionary, pt 1.(3)Someone (other than the public trustee and guardian) may be appointed as a guardian or manager only if the ACAT is satisfied that the person will follow the decision-making principles and is otherwise suitable for appointment.(4)For subsection (3), the matters the ACAT must take into account include—(a)the views and wishes of the person (the protected person) for whom a guardian or manager is to be appointed; and(b)the desirability of preserving existing relationships with family and any other carers; and(c)whether the proposed guardian or manager is compatible with the protected person; and(d)whether the proposed guardian or manager lives in the ACT; and(e)whether the proposed guardian or manager will be available and accessible to the protected person; and(f)the nature of the functions to be exercised under the order and whether the proposed guardian or manager is competent to exercise them; and(g)whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests.(5)The interests and duties of the domestic partner or a relative of a person must not be taken to be likely to conflict with the interests of the person only because of the fact of being the domestic partner or relative. A differently constituted tribunal found that Sally was a suitable person to be appointed, having regard to the considerations in section 10 of the GMP Act., and confirmed that appointment on review. That previous tribunal had the benefit of speaking with both the protected persons, neither of whom were able to attend before this Tribunal. Section 19(1) of the GMP Act provides that the Tribunal may, at any time, on its initiative or on application, conduct a review of the appointment of a guardian or a manager.19 Review of guardians and managers(1)The ACAT may at any time, on application or on its own initiative, hold a hearing to consider—(a)whether an order appointing a guardian or manager should be—(i) varied; or(ii) revoked on the ground that the need for guardianship or management no longer exists; or(b)whether a guardian or manager should be removed under section 31.…