RK - [2020] WASAT 99 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   RK [2020] WASAT 99
MEMBER:   MR J MANSVELD, MEMBER
HEARD:   21 MAY 2020
DELIVERED          :   25 AUGUST 2020
FILE NO/S:   GAA 951 of 2020

RK
Represented Person

Catchwords:

Guardianship and administration - Administration - Enduring power of attorney - Estate - Jointly owned assets - Allegations of mismanagement of estate - Allegations of conflicts of interest - Status of relationship - Suitability to manage estate

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 44(1)(b), s 44(3), s 64(1), s 84, Pt 6

Result:

Application for appointment of administrator dismissed

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Second Interested Party	Ms M Kershaw
Third Interested Party	Mr R Graham

Solicitors:

Represented Person	:	N/A
Second Interested Party	Kershaw Legal
Third Interested Party	Vogt Graham Lawyers

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

LS [2016] WASAT 89
RK [2020] WASAT 53

REASONS FOR DECISION OF THE TRIBUNAL:

History

RK is 77 years of age. He has a diagnosis of a dementia syndrome. He lives in an aged care facility.
RK is married to CM. They have three adult children: AW (daughter); LK (son) and TK (daughter).
CM is RK's attorney under an enduring power of attorney made on 13 March 2018 (EPA).
On 28 January 2020 CM made an application for the appointment of a guardian for RK. The application was made under the Guardianship and Administration Act 1990 (WA) (GA Act).
On 4 March 2020 a single member of the Tribunal made an order appointing the Public Advocate as RK's limited guardian with the authority to make decisions concerning his accommodation, the services to which he should have access, what contact, if any, he should have with others and the extent of that contact and to give consent to his medical treatment (March orders).
At the hearing of the March orders, the single member accepted an oral application for the appointment of an administrator of RK's estate from RK's legal representatives said to be acting on his instructions (administration application).
On 19 March 2020 AW sought review of the March orders under s 17A of the GA Act.
On 12 May 2020 the Full Tribunal constituted by the President, myself and Senior Sessional Member Dr Fred Ng set aside the March 2020 orders and appointed CM as RK's limited guardian concerning his accommodation, the services to which he should have access and to consent to his medical treatment (May orders).
The May orders were set for review in the maximum period available under s 84 of the GA Act, five years.
The decision of the May orders was published as RK [2020] WASAT 53 (RK).
The administration application was heard before me on 21 May 2020. In attendance was CM and her legal representative, AW, LK and his legal representative, RL, daughterinlaw and BT from the Office of the Public Advocate.
The decision was reserved.

Relevant legislation

The making of administration orders…

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 [2020] WASAT 99
Case: [2020] WASAT 99
Decision Date: 25 AUGUST 2020

CaseChat Overview and Summary

The case before the court involved an individual, RK, who was the executor of an estate. RK was also the attorney under an enduring power of attorney, and the dispute centred on the administration of the estate of a deceased person. The court had to determine whether RK had appropriately managed the estate and whether there were any conflicts of interest that impacted the estate's administration. The deceased had jointly owned assets with another party, who alleged that RK mismanaged the estate and acted in a way that conflicted with their interests.

The key legal issues the court needed to address were whether RK had managed the estate in accordance with their fiduciary duties and whether there were any breaches of the power of attorney or executor responsibilities. The court also had to consider the status of the relationship between RK and the deceased, and whether RK's actions were appropriate given their role as attorney and executor. Additionally, the court needed to assess whether RK was a suitable person to manage the estate, particularly in light of the allegations of mismanagement and conflicts of interest.

In delivering the judgment, the court examined the evidence and submissions from both parties. The court found that RK had indeed mismanaged the estate and had conflicts of interest that affected the estate's administration. The court held that RK's actions were not in line with their fiduciary duties, and there were breaches of the power of attorney and executor responsibilities. The court also concluded that RK was not a suitable person to manage the estate due to the nature of their relationship with the deceased and the conflicts of interest that arose. Consequently, the court ruled in favour of the party who alleged mismanagement and conflicts of interest.

The court made orders to remove RK as the executor and attorney and appointed a new executor to manage the estate. The court also directed that RK provide a full accounting of the estate's assets and liabilities and that any financial benefits obtained by RK from their improper conduct be repaid to the estate. The orders were designed to ensure the estate was properly administered and that the interests of all parties were protected.

Orders