GG - [2024] WASAT 11 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   GG [2024] WASAT 11
MEMBER:   PRESIDENT PRITCHARD
MS J DE KLERK, MEMBER
MS V HAIGH, MEMBER

HEARD:   22 FEBRUARY 2024
DELIVERED          :   26 FEBRUARY 2024
FILE NO/S:   GAA 4781 of 2023

GG
Represented Person

FILE NO/S: GAA 4782 of 2023

GG
Represented Person

Catchwords:

Application for review of guardian and administration - Who would be a suitable guardian and administrator - Best interests of the represented person - Intellectual disability - Conflicting medical evidence - Internal family conflict

Legislation:

Guardianship and Administration Act 1990 (WA)
State Administrative Act 2004 (WA)

Result:

Review applications dismissed, decisions of the Member affirmed

Category: B

Representation:

GAA 4781 of 2023

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

GAA 4782 of 2023

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

Cases referred to in decision:

FS [2007] WASAT 202
GG [2020] WASAT 54
GG [2021] WASAT 133
Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
SAL and JGL [2016] WASAT 63

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Ms TH has made two applications, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), to review decisions made by a single member of the Tribunal on 20 and 27 September 2023 respectively (Review Applications).
In her decision of 20 September 2023, the learned Member declared that GG, who is Ms TH's son, was unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate and was in need of an administrator of his estate. The learned Member appointed the Public Trustee to be the plenary administrator of GG's estate (Administration Decision).
In her decision of 27 September 2023, the learned Member declared that GG was incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, in need of oversight, care or control in the interests of his own health and safety and in need of a guardian. She appointed the Public Advocate as GG's limited guardian with specified functions, namely to decide where he was to live, with whom he was to live, whether he should work, what treatment decisions should be made, what contact he should have with others, the services to which he should have access, with whom he was to associate, to conduct or settle any legal proceedings as GG's next friend, and to decide whether to give or withhold consent to the use of any restrictive practices (Guardianship Decision).
The issues for determination on the review are whether the criteria under the GA Act for the appointment of a guardian and an administrator are met, and if so, whether there is a need for those appointments, and if so, who should be appointed GG's guardian and administrator and with what functions.
For the reasons which…

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 GG

Details

AGLC: GG [2024] WASAT 11
Case: [2024] WASAT 11
Decision Date: 26 FEBRUARY 2024

CaseChat Overview and Summary

The decision under review is that of the Guardianship and Administration Tribunal of Western Australia (the Tribunal), which affirmed the appointment of the Public Advocate as GG's limited guardian and the Public Trustee as GG's plenary administrator of his estate. GG, a 30-year-old man, has a history of intellectual disability and requires oversight, care, and control to ensure his health and safety. The review was initiated by Ms TH, who contests the need for a guardian and administrator and questions the suitability of the current appointees. The Tribunal found that GG meets the criteria for the appointment of a guardian and administrator under the Guardianship and Administration Act 1990 (WA), and affirmed the original orders made in 2020.

The primary legal issues addressed by the court involved whether the criteria for appointing a guardian and an administrator under the Guardianship and Administration Act 1990 (WA) were met and, if so, who should be appointed to these roles. The court also had to consider whether the functions assigned to the current guardian and administrator were appropriate. The decision hinged on determining GG's capacity to make reasonable judgments about his personal and financial affairs, as well as the impact of his intellectual disability on his ability to manage his own affairs. Additionally, the court needed to assess the suitability of the Public Advocate and the Public Trustee as guardians and administrators, given the internal family conflict and the conflicting medical evidence regarding GG's capabilities.

In reaching its decision, the court carefully examined the evidence presented, including medical assessments and expert opinions, to determine GG's current level of functioning. The court found that GG's intellectual disability significantly impaired his ability to make reasonable judgments, necessitating the oversight of a guardian and an administrator. The court also considered the internal family conflict and the evidence that none of the proposed guardians and administrators were suitable. The court concluded that the Public Advocate and the Public Trustee were the most appropriate candidates to ensure GG's well-being and the management of his estate. The functions assigned to the Public Advocate and the Public Trustee were deemed appropriate, and the court affirmed the original orders made by the Tribunal.

In summary, the court upheld the Tribunal's decision to appoint the Public Advocate as GG's limited guardian and the Public Trustee as GG's plenary administrator of his estate. The court found that the criteria for such appointments under the Guardianship and Administration Act 1990 (WA) were met and that there was a need for these appointments to ensure GG's health, safety, and financial well-being. The Review Applications were dismissed, and the orders made by the Tribunal were affirmed.

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

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Decision

Reasons for decision

MS J

In her decision of 27 September 2023, the learned Member declared that GG was incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, in need of oversight, care or control in the interests of his own health and safety and in need of a guardian. She appointed the Public Advocate as GG's limited guardian with specified functions, namely to decide where he was to live, with whom he was to live, whether he should work, what treatment decisions should be made, what contact he should have with others, the services to which he should have access, with whom he was to associate, to conduct or settle any legal proceedings as GG's next friend, and to decide whether to give or withhold consent to the use of any restrictive practices (Guardianship Decision). The issues for determination on the review are whether the criteria under the GA Act for the appointment of a guardian and an administrator are met, and if so, whether there is a need for those appointments, and if so, who should be appointed GG's guardian and administrator and with what functions. For the reasons which follow, we have concluded that the criteria for the appointment of a guardian and an administrator are met, that there is a need for the appointment of a guardian and an administrator for GG, and that as none of the persons who proposed themselves for appointment to those roles are suitable, that the Public Advocate and the Public Trustee should be appointed as GG's guardian and administrator respectively. We are satisfied that the functions given to the guardian and administrator by the learned Member remain appropriate. Accordingly, the Review Applications should be dismissed, and the orders made by the Tribunal in the Guardianship Decision and Administration Decision should be affirmed. This matter has a long background in the Tribunal. GG is a 30‑year‑old man. Guardianship and administration orders were first made for GG in 2013 on the application of his father, Mr BG. Those orders were revoked on a review under s17A of the GA Act brought by Ms TH in 2015. Guardianship and administration orders were again made in 2020 and have been in place since then. Ms TH has disputed, and she continues to dispute, that the requirements of the GA Act for the appointment of a guardian and administrator are met, and there have been disputes between her and GG's appointed guardian, the delegate of the Public Advocate (delegate), as to the decisions made by the delegate in relation to GG. Further background is set out in decisions of the Tribunal in GG [2020] WASAT 54, and in GG [2021] WASAT 133. Section 17A(1) of the GA Act permits any party who is aggrieved by a determination made by the Tribunal consisting of one member, to request the President of the Tribunal to arrange for a full Tribunal to review the determination. An express right of review is granted to any party who is aggrieved by a decision of a single member. Reviews under s 17A thus come within the Tribunal's review jurisdiction.

Ratio Decidendi

Legal Principle Established

Established by: MS J

In her decision of 20 September 2023, the learned Member declared that GG, who is Ms TH's son, was unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate and was in need of an administrator of his estate. The learned Member appointed the Public Trustee to be the plenary administrator of GG's estate (Administration Decision). In her decision of 27 September 2023, the learned Member declared that GG was incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, in need of oversight, care or control in the interests of his own health and safety and in need of a guardian. She appointed the Public Advocate as GG's limited guardian with specified functions, namely to decide where he was to live, with whom he was to live, whether he should work, what treatment decisions should be made, what contact he should have with others, the services to which he should have access, with whom he was to associate, to conduct or settle any legal proceedings as GG's next friend, and to decide whether to give or withhold consent to the use of any restrictive practices (Guardianship Decision). The issues for determination on the review are whether the criteria under the GA Act for the appointment of a guardian and an administrator are met, and if so, whether there is a need for those appointments, and if so, who should be appointed GG's guardian and administrator and with what functions. For the reasons which follow, we have concluded that the criteria for the appointment of a guardian and an administrator are met, that there is a need for the appointment of a guardian and an administrator for GG, and that as none of the persons who proposed themselves for appointment to those roles are suitable, that the Public Advocate and the Public Trustee should be appointed as GG's guardian and administrator respectively. We are satisfied that the functions given to the guardian and administrator by the learned Member remain appropriate. Accordingly, the Review Applications should be dismissed, and the orders made by the Tribunal in the Guardianship Decision and Administration Decision should be affirmed. This matter has a long background in the Tribunal. GG is a 30‑year‑old man. Guardianship and administration orders were first made for GG in 2013 on the application of his father, Mr BG. Those orders were revoked on a review under s17A of the GA Act brought by Ms TH in 2015. Guardianship and administration orders were again made in 2020 and have been in place since then. Ms TH has disputed, and she continues to dispute, that the requirements of the GA Act for the appointment of a guardian and administrator are met, and there have been disputes between her and GG's appointed guardian, the delegate of the Public Advocate (delegate), as to the decisions made by the delegate in relation to GG. Further background is set out in decisions of the Tribunal in GG [2020] WASAT 54, and in GG [2021] WASAT 133.