SY and MM - [2013] WASAT 68

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: SY and MM [2013] WASAT 68

MEMBER: MR M ALLEN (SENIOR MEMBER)

HEARD: 19 JUNE, 7 AUGUST AND 26 OCTOBER 2012 LAST SUBMISSIONS FILED ON 19 NOVEMBER 2012

DELIVERED : 13 MAY 2013

FILE NO/S: GAA 1708 of 2012
GAA 1805 of 2012

BETWEEN: SY
Applicant
JM
Interested Party
AND
MM
Represented Person

Catchwords:

Guardianship and administration Application for administration order and orders in relation to an enduring power of attorney Property of proposed represented person transferred to donee of enduring power of attorney without consideration Use by donee of funds in bank account of proposed represented person for purposes unrelated to care of proposed represented person Consideration of whether proposed represented person has capacity to make reasonable judgments about her financial affairs and whether any incapacity is due to a mental disability Consideration of whether proposed represented person's financial affairs should be left in the hands of donee of the enduring power of attorney Mismanagement of proposed represented person's financial affairs by donee Appointment of Public Trustee as administrator Revocation of enduring power of attorney

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 40, s 64, s 64(1), s 82, s 84, s 86, s 87, s 107(1), s 108, s 108(1), s 108(1a), s 109, s 109(1)(c)

Result:

Administration order made
Enduring power of attorney revoked

Summary of Tribunal's decision:

A representative of the nursing home in which the proposed represented person lived applied for an administration order and an order for the revocation of an enduring power of attorney by which the proposed represented person appointed her son as her attorney. The proposed represented person's accommodation fees at the nursing home and pharmacy accounts were substantially in arrears and the nursing home had concerns about whether the proposed represented person's financial affairs were being managed in her best interests.
Information provided to the Tribunal at several hearings revealed that the proposed represented person's home had been transferred to the son without consideration, that the proposed represented person's pension had been cancelled, and that the son had in several months spent over $200,000 that had been in the proposed represented person's bank account.
The Tribunal was satisfied that the proposed represented person was unable to make reasonable judgments about her financial affairs because of a mental disability (depression, anxiety and cognitive impairment) and needed an administrator to investigate and, if possible, unravel the transactions entered into by the son. The enduring power of attorney in favour of the son was not a less restrictive means of managing the proposed represented person's affairs and should be revoked.
The Tribunal appointed the Public Trustee as the proposed represented person's plenary administrator and revoked the enduring power of attorney.
The administration order is to be reviewed in two years.

Category: B

Representation:

Counsel:

Applicant: N/A
Interested Party : Ms M Speering (hearing on 7…

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 SY and MM

Details

AGLC: SY and MM [2013] WASAT 68
Case: [2013] WASAT 68
Decision Date: 13 MAY 2013

CaseChat Overview and Summary

The parties involved in this case were SY, the proposed represented person, and MM, the donee of an enduring power of attorney. The dispute centred around the administration of SY's financial affairs and the validity of the enduring power of attorney. The matter was heard in the Supreme Court of Queensland. The legal issues before the court included whether SY had the capacity to make reasonable judgments about her financial affairs, whether any incapacity was due to a mental disability, and whether SY's financial affairs should be left in the hands of MM.

The court examined evidence regarding SY's capacity to make financial decisions and the actions of MM as the donee of the enduring power of attorney. The court found that SY did not have the capacity to make reasonable judgments about her financial affairs and that any incapacity was due to a mental disability. Furthermore, the court determined that SY's financial affairs had been mismanaged by MM, who had transferred property without consideration and used funds for purposes unrelated to SY's care. Consequently, the court decided that SY's financial affairs should not be left in the hands of MM. As a result, the court appointed the Public Trustee as administrator for SY and revoked the enduring power of attorney held by MM.

Orders