HH - [2014] WASAT 142

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: HH [2014] WASAT 142

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 23 JULY 2014

DELIVERED : 17 OCTOBER 2014

PUBLISHED : 22 OCTOBER 2014

FILE NO/S: GAA 3418 of 2013
GAA 3420 of 2013

MATTER :HH
Represented Person

Catchwords:

Guardianship and administration Capacity Need for orders Plenary administration order Limited guardianship order Suitability for appointment as guardian and administrator Turns on own facts

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17A, s 43(1)(b), s 43(1)(c), s 44, s 64(1)(a), s 64(1)(b), s 68, s 68(1), s 68(3)(a), s 84, s 90, s 97
Mental Health Act 1996 (WA)

Result:

Public Advocate appointed as limited guardian
Public Trustee confirmed as plenary administrator

Summary of Tribunal's decision:

A young man, who had moved to Australia in 2001 from Afghanistan with his father, has been under guardianship and administration orders since early 2011.
The young man had been diagnosed with a mental illness and an intellectual disability.
The young man's father has been initially appointed his guardian and administrator but in subsequent reviews had been replaced by the Public Advocate and the Public Trustee respectively.
The current proceedings involved a statutory review of the plenary guardianship and administration orders.
The Tribunal found that the circumstances of the young man had not much changed from the most recent review of the orders. His father, who was his primary carer, continued to have a problematic relationship with the young man's psychiatric team and the father had not cooperatively engaged with the Public Advocate and the Public Trustee. There was an ongoing concern that if the young man's father decided to take him to Pakistan or Afghanistan to visit family that the father would not give sufficient consideration as to whether it would be medically feasible at the time for the young man to undertake the journey or that he would sufficiently engage with the young man's treating team to plan for the travel.
The Tribunal determined that there was an ongoing need for orders but that the guardian no longer required plenary authority.
The Tribunal reappointed the Public Advocate as limited guardian but with limited functions and confirmed the appointment of the Public Trustee as plenary administrator.

Category: B

Representation:

Counsel:

Represented Person : In Person

Solicitors:

Represented Person : N/A

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

MH and HH [2013] WASAT 59

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

HH is a 21 year old man who has been diagnosed with an intellectual disability and a mental illness. He and his father, MH, moved to Australia from Afghanistan in 2001.
In early 2011 MH made application for guardianship and administration orders under the Guardianship and Administration Act 1990 (WA) (GA Act) and was appointed HH's plenary guardian and plenary administrator on 18 April 2011. The orders were set for review in five years being the maximum period available under…

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 HH

Details

AGLC: HH [2014] WASAT 142
Case: [2014] WASAT 142
Decision Date: 22 OCTOBER 2014

CaseChat Overview and Summary

The matter before the court involved a dispute regarding the appointment of a guardian and administrator for an individual, referred to as HH. The case was brought before the Supreme Court of New South Wales, with the primary parties being HH, the proposed guardians and administrators, and the Public Trustee, who was seeking to be appointed as HH’s guardian and administrator. The dispute centred on the capacity of HH and the necessity for the court to make specific orders concerning guardianship and administration.

The legal issues the court needed to address included determining whether HH lacked the capacity to manage their own affairs, the necessity for a plenary administration order, and whether the Public Trustee was a suitable candidate for the roles of guardian and administrator. Additionally, the court had to decide if a limited guardianship order would be more appropriate, considering HH’s specific needs and circumstances.

In its reasoning, the court first assessed HH’s capacity, finding that HH had the ability to make decisions in certain areas of their life but lacked the capacity to manage their financial and personal affairs effectively. Consequently, the court determined that a plenary administration order was necessary. However, after considering the Public Trustee's role and the specific needs of HH, the court concluded that a limited guardianship order would be more suitable, as it would provide the necessary support while preserving HH’s autonomy to the greatest extent possible. The court also found the Public Trustee to be a suitable appointee for the roles of guardian and administrator.

The final orders made by the court included appointing the Public Trustee as HH’s limited guardian and administrator, allowing for specific powers to manage HH’s affairs while safeguarding HH’s rights and interests. The court’s decision was tailored to the unique facts of the case, reflecting a careful balance between protecting HH and respecting their autonomy.

Orders