CH - [2024] WASAT 31 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   CH [2024] WASAT 31
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
MR E CADE, MEMBER
MS J DE KLERK, MEMBER

HEARD:   20 MARCH 2024
DELIVERED          :   19 APRIL 2024
FILE NO/S:   GAA 4883 of 2023

CH
Represented Person
DH
Applicant

Catchwords:

Administration orders - Mental disability - Lack of capacity - Need - Suitability of applicant (Mother) to act as administrator - Represented person registered proprietor and mortgagor - Failure to cooperate with Public Trustee investigator - Turns on own facts

Legislation:

Guardianship and Administration Act 1990 (WA), s3(1), s4, s4(2), s4(3), s4(3)(d), s4(4), s4(7), s17A, s64, s64(1)(a), s68(1), s68(3), s 70

State Administrative Tribunal Act 2004 (WA), s 58

Result:

Original decision revoked
Private administrator appointed

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	N/A

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

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

FS [2007] WASAT 202
Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

CH is 46 years of age, is non-verbal and has an intellectual disability.
DH is the mother of CH. She is the applicant in these proceedings.
DH receives an age pension and CH receives a disability pension. CH also earns an income from part-time work at a department store. DH and CH have a joint bank account into which their incomes are paid and from which all their expenses are met. DH manages the joint bank account. DH and CH live in the same house, as they have always done. Since 2006 they have both been registered proprietors of the property.
For the entirety of CH's adult life DH has been his informal substitute decision maker and has been accepted as such by Centrelink, the National Disability Insurance Authority (operator of the National Disability Insurance Scheme (NDIS)), and CH's treating doctors.
In 2023, DH applied for both guardianship and administration orders under the Guardianship and Administration Act 1990 (WA) (GAA Act). The reasons for that application appear to include a minor difficulty with Centrelink and an interaction with their bank.
The Centrelink difficulty arose when a vaccination certificate for CH incorrectly recorded CH's date of birth, and so could not be used by CH. Centrelink declined to correct the certificate at DH's request as she was not CH's administrator. CH was not able to communicate with Centrelink and so he could not himself request the certificate to be corrected.
In discussing the proposal with the bank, DH was advised that she should have an Enduring Power of Attorney (EPA) in order to allow her to deal with CH's estate.
DH then approached a community legal centre for advice and was advised to apply to this Tribunal for orders of administration and guardianship. DH followed this advice and her application was heard by a single member…

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 CH

Details

AGLC: CH [2024] WASAT 31
Case: [2024] WASAT 31
Decision Date: 19 APRIL 2024

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case involved the Guardianship and Administration Board seeking administration orders in relation to an individual, CH, who has a mental disability and lacks capacity. The dispute arose from the Board's application to have an administrator appointed to manage CH's financial affairs and estate, and the opposing party, DH, who is CH's mother and current administrator, argued against the need for a new administrator. The court had to decide whether CH needed an administrator and if DH was suitable to continue in that role.

The court considered the objectives of the Guardianship and Administration Act, which is to protect individuals who may be impaired and ensure their financial affairs are not jeopardised. The key issues were whether CH's estate was being diminished in an ill-advised manner, if there were competing demands on CH's resources that could conflict with her needs, and if DH's actions were in the best interests of CH. The court also considered DH's refusal to cooperate with the Public Trustee investigator and the impact on the decision-making process.

In its decision, the court acknowledged the importance of the relationship between CH and DH, but highlighted the need for a neutral and independent administrator to protect CH's financial interests. The court found that while DH's intentions may have been good, her failure to cooperate with the investigator and the potential for future competing demands on CH's resources made her unsuitable to continue as the administrator. The court appointed an independent administrator to manage CH's estate, ensuring her financial affairs are properly protected and managed.

The final orders included the appointment of an independent administrator to manage CH's estate and the removal of DH as the administrator. The new administrator was tasked with ensuring CH's financial affairs are properly managed and that her estate is protected from any ill-advised diminution or competing demands. The decision emphasised the importance of the objectives of the Guardianship and Administration Act in protecting vulnerable individuals and ensuring their financial resources are available for their own needs and welfare.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MS J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MS J

E M Heenan J said in the decision of the Full Court of the Supreme Court in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at paras 43 and 44:…. the Guardianship and Administration Act is intended to 'provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs ... and to make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes' (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.… The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes. Although I accept that DH may be well intentioned, I consider the diminution of CH's estate was ill advised and that there may be in the future further competing demands on her; both the meeting of her own needs which may not always coincide with CH's interests or the needs of her other children which may adversely impact on CH's estate. DH & CH are mortgagors for the Current Property. TM Report 1 from the Public Trustee stated that:•in order for the initial ANZ loan application being approved (DH) needed her and (CH's) incomes to be combined.•(CH) has NDIS, is in receipt of a Centrelink Disability Pension and works part time at a (…) Store and has so for many years.•due to (CH) needing additional support (DH) works part time and is also in receipt of a Carers pension for (CH).•(DH) doesn't believe that in the current market she'd be able to get a Home Loan reissued in her name solely and if forced to do so, they may both end up being homeless. During the hearing, DH agreed that CH contributed approximately 45% toward their mortgage payments. CH is currently able to contribute an approximate 45% share of the mortgage. DH said she was only able to obtain the home loan with their combined incomes. DH does not believe she would be able to secure a loan without CH, which meant that both DH and CH were at risk of homelessness if CH was removed from the mortgage. Any administrator for CH would be obliged to make decisions about this mortgage, which may include a decision about whether or not to discharge the mortgage (as the Public Trustee were empowered to do pursuant to the order of the single member made on 19 September 2023).