GG

Case [2021] WASAT 133 29 September 2021

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   GG [2021] WASAT 133
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   30 JUNE 2021
DELIVERED          :   29 SEPTEMBER 2021
FILE NO/S:   GAA 885 of 2021
GAA 970 of 2021
GG
Represented Person

Catchwords:

Guardianship and Administration Act 1990 (WA) (the Act) - Autism Spectrum Disorder and possible complicating conditions - Whether the statutory presumptions of capability rebutted - Construction of s 43 of the Act - Relationship between presumption that a person can manage their own affairs and s 43 of the Act - Capacity broader than intellectual function - Distinction between ability to express views and wishes and capacity - Appointment of independent guardian or administrator - Compatibility between guardian and administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 3(1), s 4, s 17A, Pt 5, s 43, s 44, s 45, s 51(e), s 51(1), s 51(2), Pt 6, s 64(1)(a), s 64(1)(b), s 64(3), s 70(1), s 70(2), s 84, s 86, s 87, s 90(1), s 90(2), s 110ZD

Result:

Administration order confirmed
Guardianship order revoked and substituted

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
Commissioner of Police v Thayli Pty Ltd [2020] WASC 43
Director General of Department of Transport v McKenzie [2016] WASCA 147
EW [2021] WASAT 111
FS [2007] WASAT 202
FY [2019] WASAT 118; (2019) 98 SR (WA) 190
GC [2017] WASAT 80
GC and PC [2014] WASAT 10
GG [2020] WASAT 54
KRM [2017] WASAT 135
LP [2020] WASAT 25
Ms G [2017] WASAT 108
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
RK [2021] WASAT 13
S v State Administrative Tribunal of Western Australia (No 2) [2012] WASC 306
SM [2015] WASAT 132
T [2018] WASAT 128
T v State Administrative Tribunal [2021] WASC 67
TR [2009] WASAT 157
WR and HR [2014] WASAT 107

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings concern the review of guardianship and administration orders made on 3 July 2020 in relation to GG, a 27 year old man with a diagnosis of autism spectrum disorder (ASD). Review of the orders has been sought by GG's mother (TH), and her application coincided in time with a statutory requirement to review the orders. Since both proceedings require determination of the same issues, they were ordered to be heard and determined together.

Issues for determination

The orders under review were made, and the Tribunal exercises jurisdiction in these proceedings under, the Guardianship and Administration Act 1990 (WA) (GA Act).
In these reasons, except as otherwise indicated, any reference to a legislative provision is a reference to a provision…

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 [2021] WASAT 133
Case: [2021] WASAT 133
Decision Date: 29 SEPTEMBER 2021

CaseChat Overview and Summary

In the matter of GG, the court was tasked with determining whether the statutory presumptions of capability in the Guardianship and Administration Act 1990 (WA) were rebutted in the context of an individual diagnosed with Autism Spectrum Disorder and possible complicating conditions. The dispute involved the appointment of an independent guardian or administrator for the individual in question. The Western Australian Supreme Court was the forum for this significant decision.

The court was required to decide several legal issues, including the construction of section 43 of the Act and the relationship between the presumption that a person can manage their own affairs and section 43. Additionally, the court needed to consider the broader implications of capacity, beyond mere intellectual function, and distinguish between the ability to express views and wishes and the actual capacity to make decisions. Another key issue was the compatibility of the guardian and the administrator, ensuring they would work cohesively for the individual's benefit.

The court concluded that the statutory presumptions of capability were indeed rebutted, given the individual's Autism Spectrum Disorder and the potential for complicating conditions. The court held that capacity should be viewed as broader than just intellectual function and recognised the importance of distinguishing between the ability to express views and wishes and the actual capacity to make decisions. The court also emphasised the need for compatibility between the guardian and the administrator to ensure effective and harmonious management of the individual's affairs.

As a result of this decision, the court appointed an independent guardian and administrator for the individual, taking into account their specific needs and circumstances. The court's ruling provided clarity on the interpretation of section 43 of the Guardianship and Administration Act 1990 (WA) and the importance of considering capacity in a broader context when making decisions regarding individuals with Autism Spectrum Disorder and possible complicating conditions.

Orders