AT and LT - [2014] WASAT 21

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AT and LT [2014] WASAT 21

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS D TAYLOR (SENIOR MEMBER)
DR A GARTON (SENIOR SESSIONAL MEMBER)

HEARD: 11 FEBRUARY 2014

DELIVERED : 21 FEBRUARY 2014

FILE NO/S: GAA 4456 of 2013
GAA 4457 of 2013

BETWEEN: AT
Applicant
AND
LT
Represented Person

Catchwords:

Guardianship and administration - Review by Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) Single member made limited guardianship order appointing Public Advocate as limited guardian and plenary administration order appointing Public Trustee as administrator for represented person - Represented person is 18yearold young man with severe intellectual disability and cognitive impairment - Represented person taken into State care when 10 years old because of extreme domestic violence between his parents and physical abuse towards him by father - Application by mother to be appointed as guardian and administrator - Mother remains married to and resides with father - Whether mother's interests may conflict with the interests of represented person - Whether mother is not suitable to act as guardian - Limited existing relationship with mother - Lack of insight into represented person's impairment - Views and wishes of represented person

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(3), s 4(4), s 4(7), s 17A, s 40, s 44(1), s 44(2), s 43(1)(b), s 64(1)(a), s 68(1), s 68(3)
State Administrative Tribunal Act 2004 (WA), s 27(2)

Result:

Orders made appointing the Public Advocate as limited guardian and the Public Trustee as administrator for represented person
Guardianship and administration orders made reviewable within five years

Summary of Tribunal's decision:

The applicant, who is the represented person's biological mother, sought review by a Full Tribunal of guardianship and administration determinations made by a single member. In those determinations, the single member appointed the Public Advocate as limited guardian (albeit with extensive functions) for the represented person for a period of one year, and appointed the Public Trustee as plenary administrator of the estate of the represented person for a period of five years. The mother proposed herself for appointment as guardian and administrator for the represented person.
The represented person is an 18 year old young man with severe intellectual disability and cognitive impairment. When the represented person was 10 years old, he and his siblings were removed from their parents by the State as a result of extreme domestic violence between the parents and physical abuse by the father towards him. The represented person had limited, supervised contact with the mother from the time he was 15 years old. However, he has had no contact with his father for the past eight years.
The Full Tribunal determined that the mother should not be appointed as guardian and administrator for the represented person, because her interests may conflict with the represented person's interests in relation to a potential claim or proceeding for compensation relating to the circumstances…

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 AT and LT

Details

AGLC: At and LT [2014] WASAT 21
Case: [2014] WASAT 21
Decision Date: 21 FEBRUARY 2014

CaseChat Overview and Summary

In the matter of AT and LT, the Full Tribunal of the Mental Health Review Tribunal of Western Australia considered a case concerning the review of a decision to appoint the Public Advocate as the limited guardian and the Public Trustee as the administrator of an 18-year-old man with severe intellectual disability and cognitive impairment. The represented person, referred to as AT, was taken into state care at the age of 10 due to extreme domestic violence and physical abuse by his father. AT's mother applied for the appointment as his guardian and administrator, despite continuing to reside with and be married to the father. The legal issues for the tribunal to decide were whether AT's mother's interests could conflict with AT's interests and whether she was suitable to act as his guardian, given their limited relationship and her lack of insight into AT's impairments.

The tribunal reviewed the evidence and concluded that AT's mother was not suitable to act as his guardian. The tribunal found that AT's mother's interests could potentially conflict with AT's interests, primarily because she remains married to and lives with his father. Additionally, the tribunal considered AT's mother to lack the insight and understanding necessary to effectively advocate for AT's best interests due to the limited relationship they have. The tribunal also took into account AT's views and wishes, although he had limited capacity to express them, and determined that his mother was not the most appropriate person to act in his best interests.

The Full Tribunal upheld the original decision to appoint the Public Advocate as the limited guardian and the Public Trustee as the administrator. The tribunal was satisfied that these appointments would ensure AT's best interests were prioritised and adequately represented, given the circumstances and the evidence presented. The tribunal's decision was based on the potential conflict of interest posed by AT's mother and her lack of insight into his impairments. The orders of the tribunal affirmed the initial decision, maintaining the Public Advocate's role as limited guardian and the Public Trustee's role as administrator for AT.

Orders