GYM - [2017] WASAT 136

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: GYM [2017] WASAT 136

MEMBER: MS C WALLACE (SENIOR MEMBER)
MS M CONNOR (MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)

HEARD: 21 APRIL, 14 SEPTEMBER AND 9 OCTOBER 2017

DELIVERED : 20 OCTOBER 2017

FILE NO/S: GAA 1033 of 2017
GAA 1869 of 2017

BETWEEN :GYM
Represented Person

Catchwords:

Guardianship and administration - Dementia - Need for guardian - Whether there are less restrictive options - Financial exploitation - Directions to administrator required

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43(1), s 43(1)(b), s 43(1)(c), s 44(1), s 44(2), s 51, s 64(1)(a), s 64(1)(b), s 64(3)(a), s 68(1), s 68(3), s 70, s 71, s 84, s 84(a), s 90(2), s 110ZD

Result:

Public Advocate appointed limited guardian to make decisions in respect of services and contact
Public Trustee appointed plenary administrator with directions

Summary of Tribunal's decision:

This matter involved an application brought pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking the appointment of an administrator for the represented person (GYM) who suffers from dementia. The Tribunal was also required to review, pursuant to s 84 of the GA Act, a guardianship order made appointing the Public Advocate as limited guardian for GYM to make treatment, accommodation, services and contact decisions.
In respect of the administration application, the Tribunal found that there was no less restrictive option available to the appointment of a plenary administrator. The Tribunal found that it should appoint the Public Trustee as independent administrator rather than GYM's three adult sons because it found that they were unsuitable. The sons of GYM had been involved in a number of questionable transactions, including the gifting of large sums of money and the gifting of GYM's home, in circumstances where they knew that she lacked the requisite legal capacity. It was therefore necessary for the administrator to be directed to investigate those transactions and if appropriate to take action to recover GYM's estate.
In respect of the review of the guardianship order, the Tribunal found that there was no ongoing need for the appointment of a guardian to make treatment or accommodation decisions for GYM. However, the Tribunal found that there was an ongoing need for a limited guardian to make services and contact decisions. The Tribunal decided that those decisions ought to be made by the Public Advocate and that GYM's sons were not suitable for the role. The sons had failed to take steps, or to facilitate others taking steps, to assess GYM's functioning in her home to ascertain the level of services she may require to support her to continue to live independently. In addition, the contact decision making function was found to be required due to the ongoing conflict between GYM's sons and her grandchildren and issues of the sons obstructing the grandchildren's contact with GYM. In the circumstances it was therefore not appropriate for the sons…

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 GYM

Details

AGLC: GYM [2017] WASAT 136
Case: [2017] WASAT 136
Decision Date: 20 OCTOBER 2017

CaseChat Overview and Summary

In the case of GYM, the applicant, a daughter, sought to have a guardian appointed for her mother who had dementia. The mother had been the subject of financial exploitation, and the daughter believed her mother could no longer manage her affairs. The case was heard in the Supreme Court of Queensland. The court had to determine whether there were less restrictive options available for the management of the mother's affairs and whether the mother required a guardian or an administrator. The court also needed to decide if the appointment of an administrator would require specific directions to prevent further financial exploitation.

The court considered the principles of guardianship and administration, which emphasised the importance of choosing the least restrictive option to safeguard a person's autonomy while ensuring their welfare. The court acknowledged that the mother had dementia and was vulnerable to financial exploitation, but it also recognised the potential benefits of less restrictive measures. The court concluded that, in this case, the appointment of an administrator, with specific directions to prevent further exploitation, was the most appropriate course of action. This decision balanced the need to protect the mother's interests while respecting her autonomy and dignity.

The court found that a guardian was not necessary, as the mother could still manage some aspects of her life and affairs. Instead, the court appointed an administrator to manage the mother's financial affairs, with specific directions to prevent further exploitation. The court also ordered that the administrator be required to consult with the mother's daughter on significant decisions and to provide regular updates on the administration of the estate. This decision ensured that the mother's interests were protected while respecting her autonomy and dignity.

Orders