RK - [2021] WASAT 13 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   RK [2021] WASAT 13
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
DR B DE VILLIERS, MEMBER
MS F CHILD, MEMBER

HEARD:   14 DECEMBER 2020
DELIVERED          :   5 FEBRUARY 2021
FILE NO/S:   GAA 3363 of 2020

RK
Represented Person

Catchwords:

Guardianship and administration - Review by Full Tribunal of determination of single Member to dismiss an application for the appointment of an administrator of the represented person's estate - Whether in need of an administrator of his estate - Whether less restrictive alternative of enduring power of attorney operating in best interests of represented person - Whether attorney appointed under the enduring power of attorney of the represented person acting with reasonable diligence to protect the interests of the represented person - Wishes of the represented person - Proposed appointment of corporate trustee not consistent with legislative provisions

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17A, s 17A(1), s 64(1)
Interpretation Act 1984 (WA), s 5

Result:

Application dismissed

Category: B

Representation:

Counsel:

Represented Person

In Person

Solicitors:

Represented Person

N/A

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

FS [2007] WASAT 202
FY [2019] WASAT 118
PB [2020] WASAT 121
Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
RK [2020] WASAT 53
RK [2020] WASAT 99
SAL and JGL [2016] WASAT 63

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

AW has applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for review of a decision made by a single member of the Tribunal on 25 August 2020 (the Review Application).
In that decision, the learned Member made an order dismissing AW's application that an administrator be appointed in respect of the estate of her father, RK.
In the Review Application, AW contends that her father's needs are not being adequately met because her mother, CM, who is RK's wife and guardian and the donee of his power of attorney, is financially abusing him.
On 8 May 2020 the Full Tribunal dismissed a review application which had been made by AW from a decision of a single member of the Tribunal which had appointed CM as RK's guardian for the purposes of making decisions about where he is to live, with whom he is to live, to make treatment decisions on his behalf and to determine the services to which RK should have access. The reasons for decision in that matter are reported at RK [2020] WASAT 53 (The May Guardianship Decision).
For the reasons which follow, the Tribunal has concluded that while RK is someone for whom an administration order could be made under the GA Act, it is unnecessary for an administrator to be appointed because RK's needs are being adequately provided for by CM through her use of the enduring power of attorney which was executed by RK in March 2018.

The evidence before the Tribunal on the Review Application

In…

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 [2021] WASAT 13
Case: [2021] WASAT 13
Decision Date: 5 FEBRUARY 2021

CaseChat Overview and Summary

The case involves an application by a person, referred to as RK, seeking the appointment of an administrator for the estate of a represented person, who is unable to manage their own affairs. The application was initially dismissed by a single member of the tribunal, but RK sought a review by the full tribunal of this decision. The central issue before the court was whether the represented person required an administrator for their estate, given the existence of an enduring power of attorney that was operating in the best interests of the represented person. Additionally, the court needed to determine whether the attorney appointed under the enduring power of attorney was acting with reasonable diligence to protect the interests of the represented person, and whether the represented person's wishes aligned with the proposed appointment of a corporate trustee.

The full tribunal considered the legislative provisions governing the appointment of administrators and the operation of enduring powers of attorney. It examined the evidence and arguments presented regarding the represented person's need for an administrator, the effectiveness of the enduring power of attorney, and the attorney's conduct. The tribunal found that the enduring power of attorney was functioning in the best interests of the represented person, and the attorney was acting diligently. The tribunal also took into account the represented person's wishes and determined that the proposed appointment of a corporate trustee was inconsistent with the legislative provisions. Consequently, the tribunal upheld the decision of the single member to dismiss the application for the appointment of an administrator.

The full tribunal's reasoning and findings led to the conclusion that the represented person did not require an administrator for their estate, given the effective operation of the enduring power of attorney. The court's decision emphasised the importance of considering the represented person's best interests, the effectiveness of the attorney's actions, and the alignment of the represented person's wishes with the proposed appointment of a corporate trustee. Ultimately, the tribunal dismissed the application for the appointment of an administrator, affirming the single member's decision.

Orders