VM and Y

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   VM and Y [2006] WASAT 245

MEMBER:   MS J TOOHEY (SENIOR MEMBER)

MS F CHILD (MEMBER)
MR E LEIPOLDT (SENIOR SESSIONAL MEMBER)

HEARD:   15 AUGUST 2006

DELIVERED          :   21 AUGUST 2006

FILE NO/S:   GAA 415 of 2006

GAA 565 of 2006
GAA 566 of 2006
GAA 1140 of 2006

BETWEEN:   VM

Applicant

AND

Y
Proposed Represented Person

P AND M
Parties

Catchwords:

Guardianship – Administration – Intervention in Enduring Power of Attorney – Capacity at date of hearing – Capacity to execute Enduring Power of Attorney – Capacity to execute Deed of Gift - Conduct of executor of husband's will – Conflict of interest – Investigation by administrator in the best interests of the proposed represented person – Donees of Enduring Power of Attorney directed not to exercise powers during the period of the investigation

Legislation:

Guardianship and Administration Act 1990 (WA) s 109

Result:

Administrator appointed; other applications dismissed

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Proposed Represented Person    :    Mr Prime

Parties:     Mr Cuerdon

Solicitors:

Applicant:     Self-represented

Proposed Represented Person    :    McCallum Donovan Sweeney

Parties:     Michael Paterson and Associates

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicant asked the Tribunal to appoint an administrator for her mother, Y, and to intervene in an Enduring Power of Attorney granted by Y to the applicant's brothers, P and M.  The applicant believed that her brothers' conduct before and since their father's death had been in their own interests rather than their mother's and, as a result, her estate, which the applicant said should have been substantial, was reduced.  In particular, the applicant cited the failure of her brother, P, as executor of their father's estate, to transfer to Y two parcels of land left by her husband.  She also questioned her mother's capacity to execute a Deed of Gift by which she transferred to P and M her interests in the family business.

2. The applicant also asked the Tribunal to appoint a guardian for her mother because of conflict between herself and P about arrangements to visit her mother.

3. The Tribunal was satisfied that Y no longer had capacity to manage her financial affairs at the time of the hearing.  It could not be satisfied, on the medical evidence, that she lacked capacity to execute the Enduring Power of Attorney in favour of her sons.  It made no finding as to her capacity some time later to execute the Deed of Gift.

4. At the time of the hearing, as a consequence of the executor's failure to transfer to Y the land left by her husband, and having gifted to P and M all of her interests in the family business, Y owned only her pension and $5000 in the bank.

5. The Tribunal decided that an independent investigation of her estate was in Y's best interests and appointed the Public Trustee…