AL - [2012] WASAT 206

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AL [2012] WASAT 206

MEMBER: MS F CHILD (MEMBER)

HEARD: 28 JUNE 2012, 2 AUGUST 2012 AND 18 SEPTEMBER 2012

DELIVERED : 5 OCTOBER 2012

PUBLISHED : 12 OCTOBER 2012

FILE NO/S: GAA 1345 of 2012
GAA 1346 of 2012

BETWEEN :AL
Represented Person

Catchwords:

Guardianship and administration Applications for guardian and administrator for a woman with intellectual disability and diagnosed psychiatric condition evicted and property seized and sold History of hoarding behaviour Need for guardian to decide where to live and with whom to live Need for an administrator to manage proceeds of sale of property because of woman's intellectual disability and risk of potential relapse of psychiatric condition

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 41(1), s 43(1)(b), s 43(1)(c), s 51, s 64, s 115
State Administrative Tribunal Act 2004 (WA), s 35

Result:

Public Advocate appointed limited guardian
Public Trustee appointed limited administrator

Category: B

Representation:

Counsel:

Represented Person : Ms McCahon

Solicitors:

Represented Person : Legal Aid Commission of Western Australia

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

FS [2007] WASAT 202
ML [2012]WASAT 184
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications were made to the Tribunal by a representative of Keystart Loans Limited for the appointment of a guardian and an administrator for a 63yearold woman following her eviction from a property that she was purchasing on a shared equity basis with Keystart. Some months prior to the applications, the woman and her adult daughter had been evicted from the property pursuant to a property seizure and delivery order. This order had been obtained by Keystart because, despite the woman being up-to-date with her mortgage payments, she was in breach of the loan agreement with Keystart due to her property being declared by the local shire to be unfit for human habitation under the Health Act 1911 (WA). The evidence before the Tribunal was that the woman had a diagnosis of intellectual disability and bipolar affective disorder.
When the applications were made to the Tribunal, the woman was homeless and was reported to be living in a park with her daughter, who also suffers a mental illness. The property from which they had been evicted was sold, and the woman's share of the proceeds of sale of approximately $140,000 was due to be paid to her. The applicant said, however, that she was 'mentally deficient' and could not make reasonable judgments about those funds.
The woman said she had not received notices of any of the legal proceedings. She had not been represented, nor had there been an application for the proceedings in the Supreme Court to be conducted by a guardian ad litem on her behalf. Notwithstanding this, the woman's legal representative in the proceeding before the Tribunal said that all the…

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.

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Details

AGLC: AL [2012] WASAT 206
Case: [2012] WASAT 206
Decision Date: 5 OCTOBER 2012

CaseChat Overview and Summary

The case before the court involved a woman with an intellectual disability and a diagnosed psychiatric condition who had been evicted from her property and had her belongings sold. The woman's family was seeking to be appointed as her guardian and administrator, with the aim of deciding her living arrangements and managing the proceeds from the sale of her property. The woman had a history of hoarding behaviour, and there was concern about her ability to make decisions about where to live and with whom. The court was required to determine whether the applicants were suitable for the roles of guardian and administrator and whether such appointments were in the best interests of the woman.

The primary legal issues before the court were whether the applicants were suitable to be appointed as the woman's guardian and administrator, and whether such appointments would be in her best interests. The court had to consider the woman's intellectual disability, her psychiatric condition, and her history of hoarding behaviour in making its decision. The court also had to assess the applicants' suitability for the roles and whether they would be able to act in the woman's best interests.

In determining the suitability of the applicants and the best interests of the woman, the court considered a range of factors. These included the woman's intellectual disability, her psychiatric condition, and her history of hoarding behaviour. The court also considered the applicants' relationship with the woman, their ability to act in her best interests, and the potential risks associated with appointing them as her guardian and administrator. Ultimately, the court found that the applicants were suitable for the roles and that such appointments would be in the woman's best interests. The court made orders appointing the applicants as the woman's guardian and administrator, with the aim of ensuring that she received appropriate care and support.

Orders