Re: JAB - [2009] WASAT 151

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: Re: JAB [2009] WASAT 151

MEMBER: MS F CHILD (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 11 AUGUST 2009

FILE NO/S: GAA 1679 of 2009

IN THE MATTER
OF :AS
Applicant
AND
JAB
Represented Person

Catchwords:

Guardianship and administration - Application for leave to apply for review of administration order - Applicant the administrator but seeking leave as the partner and advocate of the represented person - Whether the application for leave discloses a change in circumstances or any other reason for review of the order - No reasons disclosed requiring a review - Periodic order falling due for review - Application for leave dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 19, s 86, s 86(1), s 87, s 87(1), s 109(1)(c)

Result:

Application for leave dismissed

Category: B

Representation:

Counsel:

Applicant: N/A
Represented Person : Selfrepresented

Solicitors:

Applicant: Hammond Worthington
Represented Person : Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal dismissed an application made in June 2009 for leave to apply for review of an administration order which appointed an administrator of the estate of a woman with a diagnosis of dementia. The application for leave was made by the partner of the woman. The partner had consented to her appointment as the administrator when the order had been made by the Tribunal in May 2008. The order had been set for periodic review in August 2009.
The partner's request for leave primarily addressed dissatisfaction with the original decision of the Tribunal to appoint an administrator of the estate and the evidence on which this decision had been based and did not disclose any change in circumstances or any other reason for the grant of leave.
Having considered the reasons advanced by the applicant the Tribunal determined that the request did not support the grant of leave and that the application should be refused.

Reasons of the Tribunal

These written reasons relate to the determination of a single Member of the Tribunal to dismiss an application for leave to apply for review of an administration order dated 12 May 2008 by which AS was appointed the plenary administrator of the estate of JAB (the represented person). The order appointing the administrator is due for review by 12 August 2009. AS is the applicant for leave (applicant).
In the orders made on 12 May 2008, enduring powers of attorney (EPA) which had been executed by the represented person, the first appointing MO her attorney dated 17 March 2007 and the second by which she had appointed the applicant and present administrator, AS, dated 21 January 2008, were revoked by the Tribunal.
As with all written reasons produced in respect of proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act), names and any identifying information have been removed consistent with the requirements of the legislation and to protect the privacy of the represented person.

The legislation

Section 87 of the GA Act provides for the grant of leave on a request for leave to apply for a review of an administration or guardianship order made by the Tribunal in circumstances where the Tribunal is satisfied that because of a change of circumstances or for any other reason, a review should be held. The Tribunal may grant leave either conditionally or subject to any condition.
Section 19 of the GA Act provides an appeal, by leave, from a determination of the Tribunal when constituted by three members not including the President to a single Judge of the Supreme Court.

Application

The present applicant is the partner of the represented person. The applicant was appointed the administrator of the estate of the represented person in orders made by the Tribunal on 12 May 2008.
As the administrator the applicant has the right of review pursuant to s 86 of the GA Act. In material before the Tribunal the applicant confirms her application is made as the advocate and partner of the represented person. Since she makes the application not in the capacity as the appointed administrator, she requires leave to bring the application.
In the present application, the applicant seeks the following orders:
1)That the orders made on 12 May 2008 be revoked and that the EPA given to AS on 21 January 2008 be reinstated; and
2)That the accounts and records submitted by the former EPA, PS, be audited.
The orders sought in respect of the EPA, for 'reinstatement' and for audit of records kept by the former donee, are misconceived since they were made pursuant to an application under s 87(1) of the GA Act. As noted above s 87(1) of the GA Act deals with requests for leave to apply for review under s 86(1) of the GA Act for review of orders made for the appointment of an administrator (or a guardian).
It is noted that the applicant was given leave to withdraw an earlier application under s 109(1)(c) of the GA Act for intervention in respect of the EPA in favour of PS in the orders made on 12 May 2008. In respect of the revocation of an EPA, the Tribunal does not have the capacity to 'reinstate' an EPA that has been revoked.
In respect of the request for leave to review the order, the applicant says in her application:
Additional evidence leaves me in no doubt that there has been a gross miscarriage of justice, and that [the represented person] has been placed under an inappropriate administration order, due to known errors of fact being presented by a vexatious relative (niece) ..., and by [the represented person's] former GP ... and by consultant geriatrician (and senior SAT member). All three individuals knowingly made fraudulent (and therefore criminal) attempts to sway the outcome of hearings on 3 April 2008 and 12 May 2008. Furthermore, the reasons for the SAT decisions and orders of 12 May 2008, as provided by [the Tribunal] on 26 September 2008 clearly demonstrate [the Tribunal's] inability to form an impartial opinion as to the fraudulent activities of her SAT colleague ... [The Tribunal's] 'reasons' also demonstrate a clear bias against my allegations in relation to the financial activities of [the represented person's] formal EPA, PS. Under the circumstances, I suggest it is only appropriate for any review to be undertaken by a Judge alone.
In her submission, the applicant provides some background in respect of the represented person and takes issue with both the processes and with the medical evidence before the Tribunal regarding the capacity of the represented person at the Tribunal hearing.
A range of allegations are made, regarding witnesses before the Tribunal including former medical practitioners treating the represented person and alleging bias by the Tribunal for accepting the report of a witness.
The submission while wide-ranging essentially challenges the original decision made. With the submission of the applicant, a medical report dated 5 August 2008 was submitted. The report is a letter to a general practitioner from a consultant geriatrician following a review of the represented person. The report traces the history from when the geriatrician first assessed the represented person in 2004.
The assessment by the geriatrician was apparently sought because the represented person wished to 'redo her will'. The report notes:
... I took an initial history from her on 26 June which indicated she did know what a will was, she knew what the nature and extent of her estate was and she knew how she wished to dispose of her property after death.
...
On examination today her mini mental state examination showed her to score 25/30 using spelling. Clearly this is stable compared with that done by Dr [W] twelve months earlier. ...
I assessed her capacity and in fact I have taped the interview and I will provide a transcript of the interview to her lawyer along with my report. In summary however I do think she has the capacity to make a Will in that she knows what a will does, she knows what she wishes to do with her property, she understands the nature and extent of her estate. She also has given me the same information on two dates separated by approximately six weeks which indicates that this is a held belief and not her fluctuating from day to day as some people with very poor memory do.
In terms of her dementia she is currently stable and I would recommend staying on the Aricept 10 mg daily. ...
Following receipt of the submission and report from the applicant, the Tribunal wrote to the applicant on 16 June 2009 setting out the provisions of s 87(1) and s 19 of the GA Act, and advising that the administration order was due for periodic review by 12 August 2009. The applicant was advised that '[g]iven the short time before the s 84 review, you may wish to wait until then and then submit any information you consider relevant'.
By letter dated 17 June 2009, the applicant responded that she was seeking a review in her capacity as life partner and advocate for the represented person, not in her capacity as a plenary administrator and that she did not wish to wait until the periodic review. A further letter was sent by the Tribunal on 19 June 2009 asking the applicant for any additional evidence which could be put before the Tribunal in respect of her application for leave. By letter dated 22 June 2009, the applicant responded referring the Tribunal to the 18page attachment to her application of 11 June 2009 which she says details the 'additional evidence'.
As noted above, the submission of the applicant takes issue with the original determination of the Tribunal that the represented person is incapable of making reasonable judgments about her estate and that she was in need of an administrator for her estate. It does not provide any additional evidence in respect of a change of circumstances or provide any information which persuades me that there is any other reason for the grant of leave. Therefore, the application for leave is dismissed.

Order

The application for leave is dismissed.

I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER