FHB and PJB [2006] WASAT 194

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 194
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:203/2006	Heard:	13 MARCH 2006
Coram:	MR J MANSVELD (MEMBER)	Delivered:	18/07/06
No of pages:	24	Judgment Part:	1 of 1
Result:	A guardian is appointed
Category:	B
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Parties:	FHB PJB
Catchwords:	Guardianship and administration Guardianship Fluctuating capacity Person unable to look after her own health and safety Is in need of a guardian The needs of the person Who should be guardian
Legislation:	Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(c), s 43, s 43(1)(b), s 43(1)(c), s 44, s 44(1), s 44(2), s 51, s 84, s 119
Case References:	Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) Nil

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : FHB and PJB [2006] WASAT 194 MEMBER : MR J MANSVELD (MEMBER) HEARD : 13 MARCH 2006 DELIVERED : 18 JULY 2006 FILE NO/S : GAA 203 of 2006 BETWEEN : FHB

Applicant

AND

PJB

Represented Person

Catchwords:

Guardianship and administration - Guardianship - Fluctuating capacity - Person unable to look after her own health and safety - Is in need of a guardian - The needs of the person - Who should be guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(c), s 43, s 43(1)(b), s 43(1)(c), s 44, s 44(1), s 44(2), s 51, s 84, s 119

(Page 2)

Result:

A guardian is appointed

Category: B

Representation:

Counsel:

Applicant : Self-represented

Represented Person : N/A

Solicitors:

Applicant : Self-represented

Represented Person : N/A

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

Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA)

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 An application for guardianship was made for a 75-year-old woman by her husband. There had been concerns raised in the woman's family about some of the decisions he had made for her. The husband had applied for guardianship to seek certainty in the decision-making, by having one person with the formal authority to make decisions for the woman.

2 The woman suffered from a degenerative neurological condition which impacted on her physical well-being and her mental state. She required 24 hour care. There was some disagreement as to her capacity to make reasonable judgments about her personal health care and living situation. Even those family members who submitted she was capable, agreed that her mental state and decision-making capacity fluctuated.

3 The Tribunal decided that the represented person was unable to make reasonable judgments in respect of matters relating to her person. The Tribunal also decided that she was incapable of looking after her own health and safety and was in need of oversight, care and control in the interests of her own health and safety.

4 The Tribunal…

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 FHB and PJB

Details

AGLC: FHB and PJB [2006] WASAT 194
Case: [2006] WASAT 194
Decision Date: 18 JULY 2006

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of FHB and PJB was heard. The matter involved a dispute regarding the appointment of a guardian for a person with fluctuating capacity. The individual in question was unable to manage her own health and safety due to her condition and required a guardian. The primary issue before the court was determining who should be appointed as the guardian, considering the person's fluctuating capacity and the need for someone to oversee her health and safety. The court had to weigh the needs of the individual against the suitability of the proposed guardians to provide the required care and attention.

The court examined the evidence presented regarding the person's fluctuating capacity and the impact it had on her ability to manage her health and safety. The court also considered the suitability of the proposed guardians, FHB and PJB, in providing the necessary care and attention to the individual. The court focused on the best interests of the person and the extent to which each proposed guardian could meet her needs. After a thorough evaluation of the evidence and arguments presented by both parties, the court determined that a guardian was necessary for the individual.

The court concluded that a guardian should be appointed to oversee the person's health and safety, given her fluctuating capacity. The court found that the proposed guardian, FHB, was better suited to provide the required care and attention to the individual. The court considered FHB's ability to meet the person's needs and the evidence presented regarding their relationship and understanding of the individual's condition. As a result, the court appointed FHB as the guardian of the person. The court also made orders for the appointment of a financial administrator to manage the individual's finances and ensure her financial security.

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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