GB - [2020] WASAT 61 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   GB [2020] WASAT 61
MEMBER:   MS F CHILD, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   9 JUNE 2020
FILE NO/S:   GAA 4053 of 2019
GAA 4624 of 2019
GB
Represented Person

Catchwords:

Guardianship and administration - Application for appointment of administrator and review of guardianship orders - Represented person with moderate cognitive impairment - Ongoing family conflict about where the represented person should live and contact she should have with others - Reappointment of Public Advocate as guardian of last resort with these functions - Reappointment of daughter as guardian for treatment and services consistent with wishes as expressed by past practice - Appointment on condition that undertaking given to communicate hospital admissions to other family members - Existing enduring power of attorney operating - No need for administration order

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(7), s 44(5), s 45, s 51, s 87, s 107, s 107(2)(b), s 109(1)(a), s 110ZD, Sch 2, Pt B(h)

Result:

Public Advocate appointed as limited guardian
Private guardian appointed

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

These are the reasons for the decisions made on applications filed with the Tribunal in respect of GB (the represented person) heard on 4 March 2020.

Background

The represented person is an 89 year-old widow. She has eight children. The represented person suffered a stroke in 1998. An Aged Care Assessment completed for the represented person in 2014 refers to a diagnosis of vascular dementia, short-term memory problems and multiple other health problems. The represented person is now diagnosed with a moderate cognitive impairment.
After her stroke the represented person lived in her own home until it was purchased by her son, C, who with his family, had moved in to her home to care for her. In 2002 she moved to live with her daughter, CG, and has been cared for in CG's home since that time by CG, her family and other family members as paid carers.
On 14 November 2012, the represented person executed an Enduring Power of Attorney (EPA) witnessed by a general practitioner by which she appointed her daughter, CG, as her sole attorney.
On 5 January 2017 the represented person executed an Enduring Power of Guardianship (EPG) witnessed by a general practitioner by which she appointed CG as her enduring guardian.
An application seeking the appointment of a guardian for and an administrator of the represented person's estate was made in October 2018 by A, one of the represented person's six sons, proposing himself for appointment as administrator and guardian.
That application was heard on 9 April 2019(the original application). The represented person and some of her eight adult children attended. The Public Advocate had undertaken an investigation of the application referred by the Tribunal and the investigator produced a report and made…

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: GB [2020] WASAT 61
Case: [2020] WASAT 61
Decision Date: 9 JUNE 2020

CaseChat Overview and Summary

In this case, the State Administrative Tribunal was asked to review guardianship orders concerning an individual with moderate cognitive impairment. The represented person, GB, was the subject of an ongoing family dispute regarding her living arrangements and contact with family members. The Public Advocate sought to be reappointed as the guardian of last resort, while GB's daughter sought to be appointed as a guardian to make decisions in line with GB's expressed wishes. The court had to decide whether to reapprove the guardianship orders and if there were any modifications that needed to be made to address the family conflict.

The court addressed several legal issues, including whether GB required a guardian and the appropriate scope of functions for any appointed guardians. The court had to determine if the existing guardianship orders were in GB's best interests, considering the family conflict and her cognitive impairment. Additionally, the court needed to assess if there was a need for an administration order given that GB already had an enduring power of attorney in place.

The court concluded that GB was incapable of looking after her own health and safety and required a guardian. The court dismissed the administration application as GB already had an enduring power of attorney. The court reappointed the Public Advocate as the guardian of last resort and GB's daughter as a limited guardian for treatment and services. The court also imposed conditions on the daughter's appointment, requiring her to communicate hospital admissions to other family members. The court set a review date for the guardianship order to ensure that GB's circumstances were regularly assessed.

The final orders of the Tribunal declared that GB was incapable of looking after her own health and safety and required a guardian. The court dismissed the administration application and amended the guardianship order. The amended order appointed GB's daughter as a limited guardian for treatment and services and the Public Advocate as the guardian of last resort for decisions regarding living arrangements and contact with others. The order also approved the delegation of the Public Advocate's functions to an officer or employee of the Office of the Public Advocate and set a review date for the guardianship order.

Orders

Orders of the court

Orders

The Tribunal declares that the represented person is:

(a) incapable of looking after her own health and safety;

(b) unable to make reasonable judgments in respect of matters relating to her person;

(d) in need of a guardian.

The Tribunal orders:

1. The administration application is dismissed.

The guardianship order dated 9 April 2019 is now amended so that it now reads:

2. On condition that CG of [address] is appointed limited guardian of the represented person with the following functions:

(a) To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA); and

(b) To determine the services to which the represented person should have access.

3. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:

(a) To decide where the represented person is to live, whether permanently or temporarily;

(b) To decide with whom the represented person is to live; and

4. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.

5. The guardianship order is to be reviewed by 5 June 2025.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

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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