IR

[2005] WASAT 111

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT:   GUARDIANSHIP AND ADMIINISTRATION ACT 1990

CITATION:   IR [2005] WASAT 111

MEMBER:   MS D DEAN (MEMBER)

HEARD:   ON THE PAPERS

DELIVERED          :   23 MAY 2005

FILE NO/S:   GAA 738 of 2005

BETWEEN:   IR

Applicant

Catchwords:

Administration - Application for inspection of documents

Legislation:

Guardianship and Administration Act 1990 (WA), s 112

Result:

Application to inspect documents granted

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Solicitors:

Applicant:    

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

Nil

Case(s) also cited:

Nil

MS D DEAN (MEMBER):

REASONS FOR DECISION

Background

1. On 18 January 2005 LW made an application to the State Administrative Tribunal in relation to his mother IR whom he reported had been diagnosed with Alzheimer's type dementia.

2. IR was said to have difficulty paying bills and shopping. She reportedly repeatedly cancelled her debit card and refused to acknowledge the Enduring Power of Attorney she had executed in favour of her son LW in September 2004.

3. A medical report and a social work report were provided to the Tribunal which confirmed the diagnosis of Alzheimer's type dementia.

4. The social worker reported that IR lives close to the facility where his mother is housed and visits twice daily to assist with her care needs. IR did not remember executing the EPA in favour of her son and this was causing some conflict as IR was "suspicious" of her son's handling of her finances.  The social worker recommendation was that IR was in need of an administrator to manage her financial affairs.  This was confirmed by the medical report.

5. Attached to the medical report was a comprehensive psychologists report outlining IR's psychosocial history.

6. The application for administration was heard by the Tribunal on 1 March 2005. The Tribunal revoked the EPA made on 3 September 2004 and appointed LW plenary administrator for five years in respect of the estate of IR.

7. On 11 May 2005 the Office of the Public Advocate (OPA) contacted the Tribunal requesting access to the Tribunal file to investigate allegations made to the OPA by IR who alleged that her son LW had made her sign an EPA and had then misappropriated funds from her estate.

Legislation

1. Section 112 of the Guardianship and Administration Act 1990 (WA) allows for the inspection of documents.

2. Section 112(1) provides that for the purposes of any application a represented person or proposed represented person is entitled to inspect or have access to documents and materials. This right is exercisable only in the course of pending proceedings and is no longer relevant once proceedings have been determined. As the proceedings concerning IR are complete, s 112(1) is not relevant to OPA's application.

3. Section 112(2) entitles a person who is not the represented person or the proposed represented person, or their representative, but who is otherwise a party to proceedings, to inspect or otherwise have access to documents or material for the purpose of those proceedings. As in s 112(1), the right given by s 112(2) is for pending proceedings and as proceedings concerning IR are no longer pending, this section is not applicable to OPA's application.

4. Section 112(3) of the Act reinforces the limited inspection and access rights by making it an offence, except as provided in the section, for a person, unless authorised to do so by order of the Tribunal, to inspect or otherwise have access to documents or material lodged with, or held by the Tribunal for the purposes of any application.

5. Section 112(4) provides the Tribunal with broad discretion on the application to inspect and have access to documents and may apply to documents and materials other than those in proceedings before the Tribunal. This section is therefore relevant to OPA's application. The Tribunal would only exercise this discretion and allow access to such documents if satisfied that such inspection or access is appropriate. In assessing the appropriateness or otherwise of an application to inspect, the Tribunal requires the applicant to provide cogent reasons for it to exercise its discretionary powers and to permit the inspection or access to occur.

Findings and Reasons

1. The reasons given by OPA for applying for inspection and access to the Tribunal file were to investigate allegations made by IR in relation to misappropriation of funds by her son LW and to "shed some light on the issues surrounding the application" and to provide "some background information into [IR's] personal situation".

2. The Tribunal considers the reasons provided by OPA in its application to inspect to be cogent and persuasive and therefore grants leave to inspect the file.

Decision and Order

1. The Tribunal has carefully considered the application by OPA to inspect documents and materials in relation to the administration application hearing on 1 March 2005 and grants leave to inspect such documents and materials.

2. The order of the Tribunal is:

3. 1. The application under s 112 to inspect documents is granted.

   I certify that this and the preceding 4 pages comprise the reasons for decision of the member who heard this matter.

   ______________________________

   Ms D Dean

   Member