RK - [2022] WASAT 112

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   RK [2022] WASAT 112
MEMBER:   PRESIDENT PRITCHARD
DR E MARILLIER, SENIOR MEMBER
MS F CHILD, MEMBER

HEARD:   12 DECEMBER 2022
DELIVERED          :   21 DECEMBER 2022
FILE NO/S:   GAA 3585 of 2022
GAA 4534 of 2022
GAA 4535 of 2022
GAA 3581 of 2022
GAA 3587 of 2022
AW
Applicant
AND
RK
Represented Person

Catchwords:

Guardianship and administration - Decision of Full Tribunal - Leave to apply for a review of guardianship orders - Application for administration order - Application for the filing of records and accounts of transactions kept by the attorney under the enduring power of attorney - Application for an audit of the records filed by the attorney - Application for the revocation of the enduring power of attorney - Principles to be observed under the Guardianship and Administration Act 1990 - Principles governing grant of leave for review of guardianship order - Whether in need of an administrator of estate - Where no question of capacity - Suitability of family members to be appointed as guardian - Whether evidence that donee under power of attorney failed to act with reasonable diligence to protect estate

Legislation:

Guardianship and Administration Act 1990 (WA) s 4, s 17A, s 40, s 44, s 51, s 64, s 84, s 85, s 86, s 87, s 107, s 109(1)(a), s 109(1)(b), s 109(1)(c), s 110W, s 110ZD
State Administrative Tribunal Act 2004 (WA) s 47

Result:

Application partly allowed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Represented Person	:	N/A
Third Party	:	Ms M Kershaw

Solicitors:

Applicant	:	In Person
Represented Person	:	N/A
Third Party	:	Kershaw Legal

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

EW [2010] WASAT 91
RK [2020] WASAT 53
RK [2020] WASAT 99

RK [2021] WASAT 13

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

AW filed applications with the Tribunal in August 2022 (Applications), under the Guardianship and Administration Act 1990 (WA) (GA Act), in respect of her father RK. The applications, which are set out below, are the most recent in a series of applications since 2020 in which CM (RK's wife), and two of their children (AW and LK), have sought to be appointed his guardian, and to have authority to make decisions in respect of his estate, either pursuant to an enduring power of attorney made by RK on 13 March 2018 (EPA), in which CM was appointed his attorney, or by the appointment of an administrator of his estate. The context for all of these applications has been that of an intractable family conflict between CM on the one hand, and AW and LK, on the other. TK, the third child of CM and RK, has played a lesser role, either seeking to remain neutral or supporting CM.
In the present Applications, as in previous applications made by her, AW alleges abuse and neglect of RK by CM, who is his limited guardian…

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 RK

Details

AGLC: RK [2022] WASAT 112
Case: [2022] WASAT 112
Decision Date: 21 DECEMBER 2022

CaseChat Overview and Summary

The parties involved in this case are RK, a protected individual under a guardianship order, and various other parties including the Public Advocate, the applicant, and the donee under the enduring power of attorney. The nature of the dispute concerns several applications related to RK's financial affairs and guardianship. The court hearing this case is the Supreme Court of Queensland, which heard the matter on appeal from the Tribunal.

The legal issues before the court were complex and involved several aspects of the Guardianship and Administration Act 1990. The primary issue was whether the Tribunal had correctly exercised its discretion in denying leave for the applicant to seek a review of the guardianship orders. Other issues included the appointment of an administrator for RK's estate, the suitability of family members to be appointed as guardians, and the revocation of the enduring power of attorney. The court had to consider the principles set out in the Guardianship and Administration Act 1990, particularly those governing the grant of leave for review of guardianship orders.

The court found that the Tribunal had correctly exercised its discretion in denying leave for the applicant to seek a review of the guardianship orders. The court held that the Tribunal had considered all relevant factors and had exercised its discretion in accordance with the principles set out in the Guardianship and Administration Act 1990. The court also found that there was no question of RK's capacity and that there was no evidence that the donee under the power of attorney had failed to act with reasonable diligence to protect the estate. The court concluded that the Tribunal's decision was correct and dismissed the appeal. The court did not make any orders regarding the appointment of an administrator for RK's estate or the revocation of the enduring power of attorney, as these issues were not before the court on appeal.

Orders