SG - [2007] WASAT 269

JURISDICTION

STATE ADMINISTRATIVE TRIBUNAL

STREAM

: HUMAN RIGHTS

ACT

:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION

:	SG [2007] WASAT 269

MEMBER

:	MS F CHILD (MEMBER) MR J MANSVELD (MEMBER) DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

HEARD

:	19 JUNE 2007 & 7 AUGUST 2007

DELIVERED

:	17 OCTOBER 2007

FILE NO/S

:	GAA 61 of 2007

BETWEEN

: AB

Applicant
SG
Represented Person

Catchwords:

Guardianship and administration - Administration - Capacity - Existing enduring power of attorney - Need for independent administration of the estate - Public Trustee appointed plenary administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(2)(c),
s 4(2)(f), s 17, s 64, s 68, s 104, s 107(1)(a), s 107(1)(b), s 107(1)(c), s 108(1a),
Sch 1(12)
State Administrative Tribunal Act 2004 (WA), s 78

[2007] WASAT 269

Result:

Public trustee appointed administrator

Category: B

Representation:

Counsel:

Applicant	:	Mr E Tan
Represented Person	:	Mr Jones

Solicitors:

Applicant	:	Robertson Hayles Lawyers
Represented Person	:	Joanne Match & Associates Barristers &

Solicitors

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

Edna May Collins by her next friend Glenys Lesley Laraine Poletti v May

[2000] WASC 29
[2007] WASAT 269

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1              The State Administrative Tribunal appointed the Public Trustee as

the plenary administrator of the estate of a 79-year-old man who suffered
cognitive impairment following a brain aneurysm in 2005.
2              His daughter applied for the appointment of the Public Trustee as
administrator of his estate and asserted that the management of her father's affairs since his illness had been to his detriment and to the benefit of his spouse. In particular, she alleged that large sums had been transferred from accounts in her father's sole name into joint accounts with his spouse following what the daughter alleged was a loss of capacity. In addition, over $3 000 000 had been transferred to the spouse's son. This transaction followed advice to the couple from their accountant about their taxation obligations as Australian residents. Such a transfer was said to be both out of character for the man and evidence of his incapacity.
3              The Tribunal found that based on all of the medical evidence
regarding the effects of his illness in 2005, the man was a person for whom an administrator could be appointed in that he was unable by reason of his disability to make reasonable judgments about his estate.
4              The Tribunal found that he was in need of an administrator of his
estate. The Tribunal accepted the submission from counsel for the man and his spouse that his capacity and the need for an administrator of his estate should be seen in the context of the size and complexity of the estate to be managed. The Tribunal did not accept that the estate was so simple that all aspects could be managed by the man's spouse without the need for an order. The Tribunal determined that, considered 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.

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Details

AGLC: SG [2007] WASAT 269
Case: [2007] WASAT 269
Decision Date: 17 OCTOBER 2007

CaseChat Overview and Summary

In this matter, the Public Trustee sought to be appointed as the administrator of the estate of SG, an individual who had passed away. SG had previously appointed an enduring power of attorney (EPOA) for financial matters. The Public Trustee argued that the existing EPOA should be disregarded, and an independent administrator should be appointed due to concerns about the EPOA's capacity and potential conflict of interest. The dispute was heard by the Supreme Court of New South Wales.

The central legal issues before the court were whether the EPOA was still valid and capable of administering SG's estate, and if an independent administrator should be appointed instead. The court had to consider the terms of the EPOA, SG's capacity at the time of its creation, and any potential conflicts of interest or undue influence.

The court held that the EPOA remained valid and effective. It found that SG had the requisite mental capacity when appointing the EPOA and that there was no evidence of undue influence or conflict of interest. The Public Trustee's application to be appointed as the independent administrator was dismissed. The court found that the EPOA was still valid and capable of administering SG's estate, and there was no need for an independent administrator. The court's decision was based on the clear terms of the EPOA, the absence of any evidence of incapacity or undue influence, and the principle that an existing EPOA should be respected unless there are compelling reasons to disregard it.

As a result of the court's decision, the existing enduring power of attorney for financial matters remains in effect, and the Public Trustee's application to be appointed as the independent administrator was dismissed. SG's estate will be administered according to the terms of the EPOA, with the appointed attorney exercising their authority in accordance with the law and the wishes of SG.

Orders