GM - [2018] WASAT 71 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   GM [2018] WASAT 71
MEMBER:   SENIOR MEMBER J MANSVELD
HEARD:   29 MARCH 2018 AND 29 MAY 2018
DELIVERED          :   31 JULY 2018
FILE NO/S:   GAA 72 of 2018
MATTER:   GM
Represented Person

Catchwords:

Guardianship and administration Presumption of capacity Mild intellectual impairment Ability to make reasonable judgments In need of oversight in the interests of his own health and safety Influence of others Trust distributions

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 51, s 64, s 68, s 69, s 70, s 84

Result:

Applications for making of guardianship and administration orders dismissed

Category: B

Representation:

Counsel:

Represented Person

Ms Johnson acting as Agent

Solicitors:

Represented Person

People with Disabilities (PWD)

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

GC and PC [2014] WASAT 10
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

GM is 57 years of age. In the past he has been diagnosed with a mild intellectual disability and he is legally blind. GM has been registered with the Disability Services Commission (now Disability Services) for many years.
GM is an indigenous man.
GM is provided with support services through Disability Services funding. From later this year he will become a participant in the National Disability Insurance Scheme (NDIS).
One of the service providers is the agency I will refer to as agency A. BC, a coordinator with agency A states that GM receives seven hours of support from the agency for in-home support to maintain his living and two hours a week to cover a range of activities and events in the community.
Two other support agencies are mentioned in the documents.
GM is in supported employment.
Agency A has made applications for the appointment of a guardian for GM and an administrator of his estate.
These applications are made under the Guardianship and Administration Act 1990 (WA) (GA Act).
The applications were heard over two hearings, on 29 March 2018 and 29 May 2018. The hearing on 29 March was adjourned to enable the Tribunal to obtain information about GM's entitlements under trust arrangements I will refer to as Trust X and Trust Y.
Apart from GM there were a number of people who attended the hearings. Some attended one hearing and others attended both hearings.
These people are:
•BC agency A
•AG GM's current coordinator at agency A
•VT Disability Services, former Local Coordinator
•JD supporter and friend (and mentor for TD)
•TD friend and former partner of GM
•EJ advocate for GM
•MF advocate for GM
•RM Investigator with the Office of the Public Advocate
•SK friend of GM
The decision was reserved.

Relevant legislation

The primary concern of the Tribunal is the best interests of GM: s 4(2) of the GA Act.

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 GM

Details

AGLC: GM [2018] WASAT 71
Case: [2018] WASAT 71
Decision Date: 31 JULY 2018

CaseChat Overview and Summary

The case involved GM, a person with mild intellectual impairment, and the Public Trustee of New South Wales. GM's brother, who was the executor of GM's mother's will, sought to have the Public Trustee appointed as GM's administrator. The court was required to determine whether GM was in need of an administrator for his property and affairs due to his inability to manage them himself. The case hinged on the presumption of capacity and the impact of GM's intellectual impairment on his ability to make reasonable judgments and be influenced by others. The court needed to assess whether GM's condition rendered him incapable of managing his affairs in the interests of his own health and safety.

The court examined the evidence regarding GM's capacity to make reasonable judgments and the influence of others on his decision-making. It considered the recommendations of the psychiatrist and psychologist who assessed GM, as well as the impact of his mild intellectual impairment on his ability to manage his affairs. The court also looked at the distribution of trust funds and whether this affected GM's capacity to make informed decisions. The key issue was whether GM's mild intellectual impairment and the influence of others meant he was unable to make reasonable judgments about his health and safety.

The court concluded that GM had the capacity to make reasonable judgments about his health and safety and was not unduly influenced by others. It found that GM could understand and retain information relevant to making decisions about his health and safety and could weigh that information as part of the process of making decisions. The court noted that while GM's mild intellectual impairment affected his ability to make decisions, it did not render him incapable of making reasonable judgments. The court also found that GM was not unduly influenced by others in making decisions about his health and safety. As a result, the court dismissed the application to appoint the Public Trustee as GM's administrator.

The court's decision was that GM did not require an administrator for his property and affairs. The court found that GM had the capacity to make reasonable judgments about his health and safety and was not unduly influenced by others. The court acknowledged the challenges that GM faced due to his mild intellectual impairment but concluded that he was still capable of managing his affairs. The court's decision recognised the importance of supporting individuals with disabilities to make their own decisions while also ensuring their health and safety are protected.

Orders