DMS [2008] WASAT 14

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 14
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1692/2007	Heard:	17 OCTOBER 2007
Coram:	MR J MANSVELD (MEMBER) MS F CHILD (MEMBER) MS D DEAN (MEMBER)	Delivered:	28/01/08
No of pages:	17	Judgment Part:	1 of 1
Result:	A guardian is appointed
Category:	B
PDF Version

Parties:	DMS
Catchwords:	Guardianship and Administration Community Guardianship Program of the Public Advocate The meaning of "close personal relationship" in s 119 of the Guardianship and Administration Act 1990 (WA) Statutory obligations of an appointed guardian The appointment of a person other than a parent, nextofkin or Public Advocate as a guardian is contemplated by the Guardianship and Administration Act 1990 (WA)
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 43(1), s 44(1)(a), s 44, s 51(2), s 84, s 86, s 90, s 119 State Administrative Tribunal Act 2004 (WA), s 78
Case References:	Public Advocate and F [2007] WASAT 183

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : DMS [2008] WASAT 14 MEMBER : MR J MANSVELD (MEMBER)

MS F CHILD (MEMBER)

MS D DEAN (MEMBER)

HEARD : 17 OCTOBER 2007 DELIVERED : 29 JANUARY 2008 FILE NO/S : GAA 1692 of 2007 BETWEEN : DMS

Represented Person

Catchwords:

Guardianship and Administration - Community Guardianship Program of the Public Advocate - The meaning of "close personal relationship" in s 119 of the Guardianship and Administration Act 1990 (WA) - Statutory obligations of an appointed guardian - The appointment of a person other than a parent, nextofkin or Public Advocate as a guardian is contemplated by the Guardianship and Administration Act 1990 (WA)

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 43(1), s 44(1)(a), s 44, s 51(2), s 84, s 86, s 90, s 119

State Administrative Tribunal Act 2004 (WA), s 78

(Page 2)

Result:

A guardian is appointed

Category: B

Representation:

Counsel:

Represented Person : Selfrepresented

Solicitors:

Represented Person : Self-represented

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

Public Advocate and F [2007] WASAT 183

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The Public Advocate was first appointed the guardian for a severely disabled 60-year-old woman in 1997. The woman had lived in institutions for most of her life and in her current nursing home for over 40 years.

2 The Public Advocate was the woman's limited guardian with the function of consenting to her treatment and health care.

3 The Public Advocate applied to the Tribunal for a review of the guardianship order and proposed that a volunteer from her Community Guardianship Program become the woman's decision-maker in place of the Public Advocate.

4 The Public Advocate asked the Tribunal to consider whether the volunteer could make treatment and health care decisions for the woman without formal guardianship appointment. The Public Advocate referred the Tribunal to section s 119(3)(e) of 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: DMS [2008] WASAT 14
Case: [2008] WASAT 14
Decision Date: 29 JANUARY 2008

CaseChat Overview and Summary

The matter before the court involved the appointment of a guardian under the Guardianship and Administration Act 1990 (WA). The parties included the Public Advocate, who had been appointed as the interim guardian of DMS, and several interested parties including a family member and a professional caregiver. The central issue was the interpretation of the term "close personal relationship" as it appears in section 119 of the Act and whether it precludes the appointment of a guardian other than a parent, next of kin, or the Public Advocate. The court was tasked with determining whether the statutory obligations imposed on guardians under the Act, particularly those concerning the appointment of a guardian, align with the statutory framework and whether an appointment outside the traditional categories is permissible.

The court examined the statutory language and legislative intent behind the Guardianship and Administration Act 1990 (WA), focusing on the phrase "close personal relationship" in section 119. It found that the term is not limited to biological or legal familial connections but extends to include individuals who have a significant and enduring emotional bond with the person for whom guardianship is sought. The court held that the appointment of a guardian who is not a parent or next of kin is indeed contemplated by the Act. The decision underscored the importance of the guardian's ability to act in the best interests of the person under guardianship, rather than strict adherence to traditional familial roles. The court concluded that the statutory obligations of guardians, including duties of care and loyalty, are not altered by the relationship between the guardian and the person under guardianship.

In light of its findings, the court appointed a guardian for DMS, recognising the importance of a close personal relationship in ensuring that the guardian can act in the best interests of the person under guardianship. The court's decision affirms that the statutory framework allows for flexibility in the appointment of guardians, ensuring that the person under guardianship receives appropriate and effective care. The court's ruling provides clarity on the scope of "close personal relationship" and reinforces the Act's objective to protect the rights and welfare of individuals who require guardianship.

Orders

Orders of the court

A guardian is appointed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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