RS and Anor and DV

[2011] WASAT 144

RS and ANOR and DV [2011] WASAT 144

Last Update:  14/09/2011

RS and ANOR and DV [2011] WASAT 144
Link to Appeal:	[2011] WASCA 214
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2011] WASAT 144
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:924/2011, GAA:1221/2011, GAA:1222/2011, GAA:1223/2011	Heard:	29 AUGUST 2011
Coram:	JUSTICE J A CHANEY (PRESIDENT), MS D TAYLOR (SENIOR MEMBER), MS J STANTON (SENIOR SESSIONAL MEMBER)	Delivered:	09/09/2011
No of Pages:	15	Judgment Part:	1 of 1
Result:	Enduring power of guardianship declared invalid Limited guardian appointed Limited administrator to be appointed subject to consent
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	RS and ANOR DV
Catchwords:	Guardianship and administration Validity of enduring power of guardianship Validity of enduring power of attorney Whether donor of full legal capacity Whether need for guardian Whether need for administrator Conflict between siblings of proposed represented person and medical advisors
Legislation:	Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 43, s 44(1), s 45, s 64(1)(a), s 64(1)(b), s 68, s 110B, s 110J, s 110K, s 110N(1)(a), s 104, s 109
Case References:	Nil
Summary:	The applicants are case workers at a government mental health service. They brought applications seeking the appointment of an administrator and guardian for DV who has, for some years, been diagnosed as suffering from schizophrenia. In support of the application, a report was prepared by DV's treating psychiatrist. Upon learning that an application for appointment of a guardian and administrator was to be made, certain of DV's siblings assisted him to prepare and execute an enduring power of guardianship and an enduring power of attorney. When that was brought to the attention of the applicants, a further application was made to set aside the enduring power of guardianship on the basis of DV's alleged lack of capacity to execute that document. The Tribunal was called upon to determine the validity of the enduring power of guardianship, and to consider whether a guardian and administrator should be appointed as a substitute decision­maker for DV. The Tribunal considered that DV lacked the capacity to execute the enduring power of guardianship and that it should be set aside. It also determined that DV lacked capacity to make decisions concerning his person and to a degree, his finances and that there was a need for the appointment of a guardian and an administrator with limited powers. In view of the level of conflict between DV's family members and his treating team, the Tribunal considered that, at least while attempts were made to improve communication between those parties, an independent decision­maker should be appointed in relation to DV. Orders were made accordingly.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RS and ANOR and DV [2011] WASAT 144 MEMBER : JUSTICE J A CHANEY (PRESIDENT)

MS D TAYLOR (SENIOR MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)

HEARD : 29 AUGUST 2011 DELIVERED…