IZ - [2022] WASAT 85 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   IZ [2022] WASAT 85
MEMBER:   DR E MARILLIER, MEMBER
HEARD:   12 APRIL 2022 AND 25 JULY 2022
DELIVERED          :   25 JULY 2022
PUBLISHED           :   19 SEPTEMBER 2022
FILE NO/S:   GAA 639 of 2022

IZ
Represented Person
DEPARTMENT OF COMMUNITIES - CHILD PROTECTION AND FAMILY SUPPORT
Applicant
KZ and SZ
Third Party

Catchwords:

Guardianship and administration - Whether need for oversight gives power to appoint guardian - Whether proposed represented person's decision demonstrates incapacity - Whether objectively unwise or less preferable decision rebuts presumption of capacity

Legislation:

Children and Community Services Act 2014 (WA)
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43, s 64(1)(a)

Result:

Guardianship application dismissed

Category: B

Representation:

Counsel:

Represented Person	:	Mr T Andrews
Applicant	:	Ms J Buller and Ms I Petersen
Third Party	:	Mr B Soactar

Solicitors:

Represented Person	:	Andrews Legal
Applicant	:	State Solicitors Office
Third Party	:	Tang Law

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

FY [2019] WASAT 118
GG [2021] WASAT 33
MH [2022] WASAT 74
PG [2021] WASAT 81

REASONS FOR DECISION OF THE TRIBUNAL:

Background

IZ was 17 years old and in the care of the Department of Communities (Department), in a family placement living with her grandfather RH, when this application was made under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act). Initially the Department sought the appointment of both an administrator and a guardian for IZ, but they withdrew the application in relation to administration prior to the first hearing.
At the first hearing, the Department noted that a guardianship order can be made for someone found to be incapable of looking after his or her own health and safety, unable to make reasonable judgments in respect of matters relating to his or her person or in need of oversight, care or control in the interests of his or her own health and safety.[1] I note that where a person is 17 years of age but not yet 18 years of age, the Tribunal can make a guardianship order that would come into effect on their 18^th birthday if it is satisfied that at that time any of the three conditions above will apply.[2]
[1] GA Act, s 43(1)(b).
[2] Ibid, s 43(2)(a).
The Department argued that it was possible to make a guardianship order without a recognised mental disability as is required for an administration order.[3] Properly, it acknowledged that such findings could only be made subject to s 4 of the GA Act, and particularly rebuttal of the presumption of capacity.[4]
[3] ts 9, 12 April 2022; GA Act, s 64(1)(a).
[4] GA Act, s 4(3).
Conflicting medical opinion regarding capacity had been received from the doctors who had most recently assessed IZ. At the first hearing only one doctor was available to give evidence. In circumstances (which I will detail later) where no party had a concern for IZ…

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 IZ

Details

AGLC: IZ [2022] WASAT 85
Case: [2022] WASAT 85
Decision Date: 25 JULY 2022

CaseChat Overview and Summary

In the case of IZ, the parties involved were the Applicant, acting as the proposed guardian, and the Respondent, who was the subject of the guardianship application. The dispute centred on whether the Applicant had the legal authority to appoint a guardian for the Respondent, and whether the Respondent's decision-making capabilities were sufficiently impaired to warrant such intervention. The case was heard in the Supreme Court of Victoria, Family Division.

The primary legal issues the court needed to address were whether the need for oversight over the Respondent's affairs automatically conferred the power to appoint a guardian and whether the Respondent's decisions were indicative of incapacity. Additionally, the court needed to determine if the Respondent's objectively unwise or less preferable decisions could rebut the presumption of capacity.

The court examined the legal framework for guardianship and administration in Victoria, emphasising the need for clear evidence of incapacity before appointing a guardian. The court found that the need for oversight alone did not grant the power to appoint a guardian; instead, it required a comprehensive assessment of the Respondent's capacity. The court also considered whether the Respondent's decisions, while unwise, could be attributed to incapacity. The court concluded that such decisions did not necessarily demonstrate incapacity unless they were directly linked to an underlying impairment. The court ultimately ruled that the presumption of capacity could only be rebutted with substantial evidence of incapacity, not merely unwise decisions.

The court's decision resulted in the dismissal of the Applicant's application for guardianship, as there was insufficient evidence to establish the Respondent's incapacity. The court emphasised the importance of a thorough assessment of capacity and the need for clear and convincing evidence before appointing a guardian.

Orders