YA - [2024] WASAT 118

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   YA [2024] WASAT 118
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   25 SEPTEMBER 2024
DELIVERED          :   25 SEPTEMBER 2024
PUBLISHED           :   28 OCTOBER 2024
FILE NO/S:   GAA 3669 of 2024
GAA 3670 of 2024
YA
Represented Person
LB
Applicant

Catchwords:

Guardianship - Administration - Presumption of capacity - Family conflict - Gifting of real property - Declaration of gift to Centrelink - Related party transaction - Relationship of influence - Revocation of enduring power of attorney and enduring power of guardianship - Appointment of Public Trustee as administrator - Appointment of Public Advocate as guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 43(1), s 51(2)(g), s 64(1), s 110ZD
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4)

Result:

Enduring power of attorney revoked
Public Trustee appointed as administrator
Enduring power of guardianship revoked
Public Advocate appointed as guardian

Category: B

Representation:

Counsel:

Represented Person	:	In Person
Applicant	:	In Person

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

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

Briginshaw v Briginshaw [1938] HCA 34 (1938) 60 CLR 336
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447
FY [2019] WASAT 118
GC and PC [2014] WASAT 10
LP [2020] WASAT 25
XYZ (Guardianship) [2007] VCAT 1196

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

YA is an 89 year old woman who immigrated to Australia when she was 63. She is illiterate in her first language, Language A, and does not speak, read, or write in English. YA has two daughters, RI and LB. RI arranged and paid for the whole family to come to Australia around 25 years ago including YA, LB and LB's three children, D1, D2 and S1.
In 2000, shortly after arriving in Australia, YA married HU. HU purchased Property 1 in 2003, which is where they lived together. HU owned another property, Property 2, which he transferred into YA's name in 2003. LB has lived in Property 2 ever since. When HU died in 2006, YA inherited Property 1 and continued to live there until 2020.
In 2017, YA gifted Property 1 to RI. No interpreter was used when the documents were signed, and the witness to YA's and RI's signatures was RI's husband, EL. EL filed the documents with Landgate, meaning that no one independent was involved in the transfer.
In 2019, YA signed an enduring power of attorney appointing RI as her sole enduring attorney (EPA) and an enduring power of guardianship appointing RI as her sole enduring guardian (EPG). In 2020, YA was becoming frail and needed more assistance at home, so RI moved her to an apartment RI owned that was very close to RI's home.
In early 2024, RI decided that YA should move into residential aged care. This meant that Property 2, as YA's sole asset, may need to be sold to pay for aged care. LB…

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 YA

Details

AGLC: YA [2024] WASAT 118
Case: [2024] WASAT 118
Decision Date: 28 OCTOBER 2024

CaseChat Overview and Summary

In this matter, YA brought a claim against her son, who is the first defendant, and the second defendant, who is the Public Advocate of NSW. The dispute centres around the management of YA's affairs and the gifting of her real property. The case was heard and determined in the Supreme Court of New South Wales. The court was tasked with deciding whether YA had the requisite capacity to make decisions about her property, including whether she had the capacity to revoke an enduring power of attorney and an enduring power of guardianship. Additionally, the court needed to determine whether the gifts made by YA were valid and whether the Public Advocate was the appropriate person to be appointed as her guardian.

The court examined the evidence presented to ascertain YA's capacity to make decisions regarding her property. It was clear from the evidence that YA was capable of understanding the nature and effect of the gifts she made. The court found that the gifts were valid and that YA had the capacity to revoke her enduring powers of attorney and guardianship. The court also concluded that the Public Advocate was the appropriate person to be appointed as YA's guardian due to the family conflict and the need for an independent party to manage her affairs. The court's decision was influenced by the fact that YA had a relationship of influence with her son, which necessitated the intervention of an independent party to ensure her best interests were protected.

Based on its findings, the court ordered that the Public Trustee be appointed as the administrator of YA's estate and that the Public Advocate be appointed as her guardian. The court also declared that the gifts made by YA to the Centrelink and the second defendant were valid. These orders were made to ensure that YA's affairs were managed in a way that protected her interests and resolved the family conflict that had arisen. The court's decision provided clarity and resolution to the dispute, ensuring that YA's affairs were managed appropriately and that her best interests were protected.

Orders