AM and MM - [2011] WASAT 200

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AM and MM [2011] WASAT 200

MEMBER: MR M ALLEN (SENIOR MEMBER)

HEARD: 5 JULY 2011

DELIVERED : 22 AUGUST 2011

FILE NO/S: GAA 1519 of 2011

BETWEEN: AM
Applicant
AND
MM
Represented Person

Catchwords:

Guardianship and administration - Review of administration order on application of daughter of represented person - Daughter dissatisfied with performance of appointed administrator and sought appointment of Public Trustee - No dispute that represented person still needed an administrator - Finding that wishes of represented person, who wanted the current administrator to continue to act, should be given great weight - Administrator's appointment affirmed

Legislation:

Guardianship and Administration Act 1990 (WA), s 86, s 87

Result:

Order confirmed

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Represented Person : Mr C Williams

Solicitors:

Applicant: Self-represented
Represented Person : Mr C Williams

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal reviewed an administration order made 16 months previously, in which the represented person's wishes that a friend be appointed as administrator were given great weight. The represented person's daughter sought a review of the order, and proposed that the Public Trustee replace the friend as administrator. There was no dispute that the represented person, who suffers from a progressive degenerative neurological illness, is a person for whom an administration order could and should be made. The main issue in the proceeding was whether the current administrator should continue to act or whether the Public Trustee should be appointed.
The Tribunal considered that there was no reason to conclude that the current administrator was not carrying out her duties in a reasonable manner, and that the represented person continued to want the administrator to act. That, plus the fact that to appoint the Public Trustee as administrator would involve the payment of considerable fees by the represented person's estate for administration services, meant that it would not be in the represented person's best interests to alter the current arrangements.
The Tribunal delivered its reasons for decision orally and the following statement of reasons has been edited from the transcript.

Introduction

The background to the matter is that the represented person, MM, is a 54yearold woman who suffers from a degenerative neurological illness. In April 2010 the Tribunal made an administration order in respect of MM in which Ms S was appointed as her plenary administrator. In the reasons given for that decision the Tribunal explained in some detail why that order was made in particular, why it was thought appropriate that an order be made at all and why the Tribunal chose to appoint Ms S as the administrator rather than appointing some other person.
At the time of the order in April 2010 it was apparent that there was considerable conflict between MM and her husband. Their marriage had broken down and proceedings were contemplated, although they continued to live…

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 AM and MM

Details

AGLC: AM and MM [2011] WASAT 200
Case: [2011] WASAT 200
Decision Date: 22 AUGUST 2011

CaseChat Overview and Summary

The matter before the court involved the daughter of a represented person who had applied for a review of an administration order. The daughter was dissatisfied with the performance of the appointed administrator and sought the appointment of the Public Trustee instead. The represented person, who still required an administration order, had expressed a desire for the current administrator to continue in their role. The court was tasked with determining whether the daughter's application should succeed and whether the represented person's wishes should be given significant consideration.

The legal issues at hand centred on the weight to be given to the represented person's wishes regarding the continuation of the current administrator, the daughter's dissatisfaction with the administrator's performance, and the overall necessity of an administration order for the represented person. The court had to balance these considerations against the statutory framework governing the appointment and review of administrators.

The court found that the represented person's wishes, expressing a desire for the current administrator to continue, should be given great weight. The court was satisfied that the represented person still required an administration order and that the current administrator was fulfilling their role adequately, despite the daughter's objections. Consequently, the court affirmed the appointment of the current administrator and dismissed the daughter's application for a change in administration.

Orders