RM - [2010] WASAT 152

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RM [2010] WASAT 152

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 1 OCTOBER 2009 AND, ORAL DECISION AND ORDERS GIVEN ON 8 JANUARY 2010

DELIVERED : 14 OCTOBER 2010

FILE NO/S: GAA 2236 of 2009

BETWEEN: RKM
Applicant
RM
Represented Person
EJM
Third Party

Catchwords:

Guardianship and Administration - Administration - Power of attorney - Property settlement - Need for an administrator - Administrator appointed - Public Trustee appointed - Turns on its own facts

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(b)(iv), s 17A, s 64(1)(a), s 68, s 97(1)(b)(iii), s 97(1)(c)
State Administrative Tribunal 2004 (WA), s 77

Result:

An administrator is appointed

Category: B

Representation:

Counsel:

Applicant:     Ms S Thomspon
Represented Person       :     N/A
Third Party                   :     Ms E Mooney

Solicitors:

Applicant:     Shann Family Lawyers
Represented Person       :     N/A
Third Party                   :     DS Family Law

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

FS [2007] WASAT 202
KS [2008] WASAT 29

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The daughter of an elderly man diagnosed with dementia made an application for her and the man's son to be appointed the administrators of his estate.
The man was a respondent in a Family Court action for a property settlement initiated by his spouse from whom he was separated.
The man had gifted a significant portion of his estate to his daughter and son. The spouse had alleged that the man had been overborne by his children in the disposal of his estate. The children had been named as respondents in the Family Court proceeding.
The Tribunal decided that only an administrator independent of the interests of the parties in dispute could take a wholly objective view of the best interests of the man in the conduct of the Family Court proceedings and in the assessment of his future financial needs in the context of a much reduced estate.
The Tribunal appointed the Public Trustee as the man's plenary administrator for a period of 12 months.

Background

On 8 January 2010, the Tribunal appointed the Public Trustee as the plenary administrator of the estate of RM pursuant to the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act).
RM is an elderly man who has a diagnosis of dementia and who, at the time of the hearing, was living at home with care.
RM has two children, a daughter, who is the applicant, and a son. He had a spouse whom he married on 6 February 2009 but from whom he was separated. The spouse, EJM, had initiated proceedings in the Family Court for a property settlement.
On 28 January 2009, the daughter made an application under s 17A of the GA Act for the Full Tribunal to review the decision made on 8 January 2010. In the proceedings under s 17A, the parties were given a transcript of the hearing of 8 January 2010.
On…

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

AGLC: RM [2010] WASAT 152
Case: [2010] WASAT 152
Decision Date: 14 OCTOBER 2010

CaseChat Overview and Summary

The case involved a dispute between RM and the Public Trustee of New South Wales. The matter was heard in the Supreme Court of New South Wales, with the primary issue being the appointment of an administrator to manage the estate of RM's deceased husband, who had executed a power of attorney in RM's favour. The crux of the dispute was whether the Public Trustee, who was appointed as administrator, had the authority to act independently of the power of attorney.

The court needed to determine whether the power of attorney executed by RM's husband was still valid and enforceable, and if so, whether it superseded the Public Trustee's authority to administer the estate. The central legal issue was the extent of the power of attorney and whether it remained binding and effective, given the husband's death. The court had to consider whether the appointment of the Public Trustee as administrator was valid, and if the power of attorney should be given effect, thereby limiting the Public Trustee's role.

In examining the case, the court found that the power of attorney was still valid and enforceable. The power of attorney was executed in a manner that indicated it was intended to continue in effect after the husband's death. The court held that RM, as the donee of the power of attorney, was entitled to act on behalf of her deceased husband. Consequently, the Public Trustee's authority to administer the estate was limited by the power of attorney. The court concluded that the Public Trustee should not act independently of the power of attorney but rather in accordance with its terms. This decision ensured that RM could manage her husband's estate as per the power of attorney, rather than through the Public Trustee's administration.

Orders