DN - [2021] WASAT 43 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   DN [2021] WASAT 43
MEMBER:   JUDGE D R PARRY, DEPUTY PRESIDENT
DR B DE VILLIERS, MEMBER
MS F CHILD, MEMBER

HEARD:   8 FEBRUARY AND 11 MARCH 2021
DELIVERED          :   19 MARCH 2021
FILE NO/S:   GAA 4826 of 2020

DN
Applicant
PUBLIC TRUSTEE
Second Party

Catchwords:

Review by Full Tribunal of determination of single member to make administration order appointing Public Trustee as plenary administrator of represented person's estate - Whether presumption of capacity displaced - Whether need for administration order - Period for review of administration order

Legislation:

Guardianship and Administration Act 1990 (WA), s 3(1), s 4(2), s 4(3)(d), s 17A(1), s 17A(2), s 40(1), s 64(1), s 84, s 86(1)

Result:

Administration order made appointing Public Trustee as plenary administrator of represented person's estate to be reviewed within 12 months

Category: B

Representation:

Counsel:

Applicant	:	In person
Second Party	:	No appearance

Solicitors:

Applicant	:	N/A
Second Party	:	N/A

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

LP [2020] WASAT 25; (2020) 99 SR (WA) 123

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 3 December 2020, DN emailed the Tribunal to 'request a hearing to revoke the order of [P]ublic [T]rust[ee] management of my pension cheque' and stating 'enough is enough!'.[1] The email was accepted as an application under s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) for review by a Full Tribunal of the determination by a single member on 17 September 2020 to make an administration order appointing the Public Trustee as plenary administrator of the estate of DN. The member also made a 'gifting' order enabling the administrator to expend up to a total of $500 per annum on gifts on behalf of DN, required the Public Trustee to send DN a statement twice a year setting out the transactions, disbursements and fees for the relevant period and the balance of her account, and determined that the administration order is to be reviewed by the Tribunal (under s 84 of the GA Act) by 17 September 2021, that is within 12 months of the making of the administration order.
[1] Hearing book (Exhibit 1) page 5.
Under s 17A(2) of the GA Act, an application under s 17A(1) of the GA Act must be made within 28 days of the date of the determination. The application under s 17A(1) of the GA Act is seven weeks out of time, because it was made 11 weeks after the single member's determination. However, we are satisfied that there is 'good reason for making the request outside that time', for the purposes of s 17A(2) of the GA Act, because the application could have been accepted as an application for review of the administration order under s 86(1) of the GA Act (without any extension of time being required), the delay was not very significant and DN is clearly aggrieved by the determination.

Background

DN is a 58 year…

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 DN

Details

AGLC: DN [2021] WASAT 43
Case: [2021] WASAT 43
Decision Date

CaseChat Overview and Summary

DN, a 58-year-old woman with a long-standing diagnosis of chronic, treatment-resistant paranoid schizophrenia and attention deficit disorder, has appealed to the State Administrative Tribunal (WA) to review the administration order made by a single member on 17 September 2020. The order appointed the Public Trustee as the plenary administrator of DN's estate. DN contests her diagnosis of paranoid schizophrenia and believes she has only been misdiagnosed and medicated since 2003. The Full Tribunal must decide whether the presumption of capacity is displaced, whether there is a need for an administration order, and if so, whether the order should be limited or plenary, and the period for which it should be made.

The Full Tribunal is satisfied on a balance of probabilities and feels an actual persuasion on the evidence that DN has a mental disability, namely paranoid schizophrenia, which is chronic and treatment-resistant, and that she is unable, by reason of her mental disability, to make reasonable judgments in respect of matters relating to all of her estate. The Tribunal also finds that there is a need for an administration order, and that a less restrictive alternative does not exist in the circumstances of this case. The administration order should be plenary because of the range of financial decision-making that may be required on behalf of DN. The Tribunal considers that the administration order should be reviewed within 12 months, as the medical evidence indicates that DN's disability is fluctuating and that she could be supported to develop financial management strategies, which may provide a less restrictive alternative to the appointment of a plenary administrator in the future.

The administration order made on 14 May 2020 and amended on 17 September 2020 is confirmed. The Public Trustee is appointed as the plenary administrator of DN's estate. The Public Trustee is authorised to expend up to a total amount of $500 per annum on gifts on behalf of DN. The Public Trustee shall send DN a statement setting out the transactions, disbursements, and fees for the period and the statement of the balance of the accounts of DN as of 15 January and 15 July each year. The administration order is to be reviewed by 10 March 2022.

Orders