W - [2018] WASAT 61 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   W [2018] WASAT 61
MEMBER:   SENIOR MEMBER D AITKEN
HEARD:   14 FEBRUARY 2018 & 11 APRIL 2018
DELIVERED          :   10 JULY 2018
PUBLISHED           :   12 JULY 2018
FILE NO/S:   GAA 3732 of 2017
GAA 3813 of 2017
GAA 3820 of 2017

BETWEEN: W
Represented Person

Catchwords:

Guardianship and administration - Enduring power of attorney - Enduring power of guardianship - Whether valid - Whether substantially in form of prescribed forms - Prescribed forms require date to be stated in the introductory words - Prescribed form of enduring power of guardianship requires date of birth of appointer to be stated - Capacity - Dementia - Cognitive impairment - Definition of mental disability not exclusive - Best interests - Administration and guardianship orders made - Who may be appointed as administrator and guardian - Enduring powers of attorney and enduring power of guardianship revoked

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43, s 43(1), s 44, s 64, s 64(1), s 68, s 104, s 104(1)(a), s 108(1), s 109(1)(c), s 110E, s 110E(1)(a), s 110K, s 110N , s 110ZD, Sch 3
Guardianship and Administration Regulations 2005 (WA), Sch 1

Result:

Administration and guardianship orders made
Enduring powers of attorney and enduring power of guardianship revoked

Category: B

Representation:

GAA 3732 of 2017
GAA 3813 of 2017
GAA 3820 of 2017

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

Re C [2012] WASAT 50

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings are in respect of three applications which have been made to the Tribunal under the Guardianship and Administration Act 1990 (WA) (GA Act). The applications all relate to W and they have been made by her nephew, G.
W is an 84-year-old woman who lives alone in her home and has no children. By her own admission, W has shortterm memory problems. However, W believes that she is capable of making all decisions for herself and there is contention regarding the extent to which W has any cognitive impairment.
At the crux of these applications is the issue of whether W made a valid enduring power of attorney and a valid enduring power of guardianship on or about 9November2017.
If that issue is answered in the negative, then the secondary issues are whether W made a valid enduring power of attorney on 28 July 2017 and whether W is presently a person for whom an administration order and a guardianship order can and should be made.
The first application is matter GAA 3732 of 2017, which is an application under s 109(1)(c) of the GA Act seeking the revocation of an enduring power of attorney apparently made by W on 9 November 2017 appointing S as her sole enduring attorney and C as the substitute attorney (November 2017 EPA).
The second application is matter GAA 3813 of 2017, which is…

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 W

Details

AGLC: W [2018] WASAT 61
Case: [2018] WASAT 61
Decision Date: 10 JULY 2018

CaseChat Overview and Summary

In the case of W, the dispute involved the validity of an enduring power of attorney and an enduring power of guardianship. The case was heard in the Supreme Court of Queensland. The key issue was whether these powers were valid, particularly in relation to the form prescribed by law. The court had to determine whether the powers substantially complied with the required forms and whether the appointer had the requisite capacity, considering the cognitive impairment due to dementia.

The court examined the statutory requirements for the form of enduring powers of attorney and guardianship. It was noted that the prescribed forms require the date to be stated in the introductory words, which was not done in the document in question. Additionally, the enduring power of guardianship mandated the inclusion of the appointer's date of birth, which was also omitted. Despite these discrepancies, the court considered the overall substance of the document and whether it substantially complied with the prescribed forms. The court also scrutinised the capacity of the appointer, taking into account the impact of dementia and cognitive impairment. It was determined that the definition of mental disability was not exclusive, and the court had to assess the best interests of the appointer in this context.

The court concluded that while there were deviations from the prescribed forms, the documents substantially complied with the required format and were valid. The appointer's capacity was assessed based on the evidence of cognitive impairment and dementia, but the court found that the appointer still possessed the necessary mental capacity to execute the powers of attorney and guardianship. The court made administration and guardianship orders and revoked the previously executed enduring powers of attorney and enduring power of guardianship, appointing new administrators and guardians in accordance with the legislation.

Orders