VAM
[2010] WASAT 183
•10 DECEMBER 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: VAM [2010] WASAT 183
MEMBER: MS M JORDAN (SENIOR SESSIONAL MEMBER)
HEARD: 4 NOVEMBER 2010
DELIVERED : 10 DECEMBER 2010
FILE NO/S: GAA 2727 of 2010
GAA 2728 of 2010
BETWEEN: LSM
Applicant
VAM
Represented Person
Catchwords:
Dismiss application to review guardianship order - Dismiss application for administration order as operating enduring power of attorney less restrictive
Legislation:
Guardianship and Administration Act 1990 (WA),
State Administrative Tribunal Act 2004 (WA), s 77
Result:
Applications dismissed
Category: B
Representation:
Counsel:
Applicant: Mr P Hill
Represented Person : N/A
Solicitors:
Applicant: N/A
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal dismissed both an application for leave to review a guardianship order dated 12 February 2010 and an application for an administration order.
Introduction
These reasons relate to a determination of the Tribunal to:
(a)dismiss an application to appoint an administrator for VAM; and
(b)dismiss an application for leave to apply for review of a guardianship order dated 12 February 2010 by which LG was appointed limited guardian of VAM (represented person) with the authority to decide treatment, services and contact with others
These matters were determined on 4 November 2010 and these written reasons are produced pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA).
Application for an administration order
The applicant, LSM, is a sister of both the represented person, VAM, and of VAM's guardian, LG. LSM sought the appointment of herself and others, initially in her written application, as administrator and later at the hearing sought the appointment of the Public Trustee to administer her sister's affairs.
LSM was aware that VAM had made an enduring power of attorney appointing her sister, LG, as her attorney. LSM sought the appointment of an independent person to administer the affairs as she was suspicious that they may not be being managed appropriately in that she was of the view that LG is secretive and would not provide her with information concerning their deceased father's estate and the bequest made to VAM under his will.
The Tribunal found that VAM is a person for whom an administration order could be made, by virtue of her diagnosis of Alzheimer's Dementia which has diminished her capacity to manage her own financial affairs.
The Tribunal received from LG a copy of financial statements of VAM's financial affairs for the year ended October 2010. These documents included a statement of assets and liabilities, Westpac Bank statements from 29 January 2010 to 30 September 2010, Westpac Mastercard statement 20 September to 19 October 2010, Commonwealth Bank statement 14 July 2010 to 15 October 2010, Commonwealth Bank Streamline account 14 July 2010 to 15 October 2010, Commonwealth Bank Netsave account from 2 July 2010 to 12 October 2010, Commonwealth Bank Business Transaction account 'Magelin Pty Ltd in trust for [VAM] Super Fund' from 14 July 2010 to 11 October 2010, a term deposit certificate dated 9 August 2010, monthly expenses summary from October 2009 to October 2010 and detailed statements for each of those months. The assets of VAM are considerable, including cash of $565,011, shares valued at $89,200 and real estate valued at $320,000. There was nothing in the documentation provided that caused the Tribunal any concerns as to the management of VAM's financial affairs and the Tribunal therefore made the finding that the continued operation of the enduring power of attorney was a less restrictive alternative to the making of an administration order.
Having made these findings, the Tribunal dismissed the application for an administration order.
Leave to seek review of the guardianship order
The applicant sought leave to review the guardianship order made some nine months prior to the hearing which appointed LG as limited guardian for VAM, with the functions to consent to treatment and health care, to determine what contact VAM should have with others and to determine the services to which she should have access.
The applicant was unhappy with the operation of this order as she had been prevented by LG in having contact with VAM. In her written application, LSM claimed that LG and she had a relationship of over 30 years of sibling rivalry and that LG had actively turned her children against LSM since they were very young. She also claimed that since LG had been guardian for VAM, LG had also turned VAM's children against her. Additionally, LG had turned her own children against their father's family since their father's death.
The animosity held by LSM appears also to have been driven by the distribution or claimed delays in distribution of the estate of the father of all three sisters. LG is a joint executrix of that estate together with an accountant, BIB.
Both LSM and LG filed voluminous material including emails to and from each other and family members.
The order for guardianship made 12 February 2010 included the authority to determine with whom VAM should have contact and the extent of that contact. It is the duty of the guardian to act in the best interests of VAM in making such a determination.
It was apparent from the evidence of SK, from the Office of the Public Advocate, who had interviewed VAM at her home, that VAM did not seek contact with LSM and indeed became somewhat agitated when asked if she would like to have such contact. The Tribunal's role is not to determine with whom a represented person should have contact, that is, the role of the lawfully appointed guardian. Her decision in this instance was supported not only by the Public Advocate but also by the daughter of VAM who was present at the hearing by telephone.
In reviewing all of the evidence in relation to the application for leave to review the guardianship order, both written and oral, there was no finding by the Tribunal that the guardian had erred in the exercise of her appointed function and therefore the application to review the existing order is dismissed.
Orders
1.The application for an administration order is dismissed.
2.The application for leave to review the guardianship order is dismissed.
I certify that this and the preceding [15] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M JORDAN, SENIOR SESSIONAL MEMBER
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