JA - [2020] WASAT 73 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   JA [2020] WASAT 73
MEMBER:   MS F CHILD, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   3 JULY 2020
PUBLISHED           :   9 JULY 2020
FILE NO/S:   GAA 2666 of 2019
GAA 4026 of 2019
JA
Represented Person

Catchwords:

Guardianship and administration - Represented person with intellectual disability - Review of orders appointing Public Trustee administrator and Public Advocate as guardian - Father of represented person proposing himself for appointment as administrator but not suitable for appointment - Whether Public Trustee in position of conflict - Whether Public Advocate should be appointed administrator - Public Trustee best placed to administer estate - Whether represented person in need of guardian - Father as informal decisionmaker in position of conflict - Father making lifestyle decisions informed by financial considerations but incompatible with appointed administrator - Need for oversight of represented person - No one else proposed for appointment as guardian - Public Advocate appointed

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43(1)(b), s44(2)(b), s 64, s 64(1), s 68, s 69(3), s 70(1), s 71(2), s 71(3), s 72(1), s 72(3), s80(4)(b), s 84, Sch 2, Pt A, cl 4
Public Trustees Act 1941 (WA), s 55
State Administrative Tribunal Act 2004 (WA), Div 7, Div 8

Result:

Public Trustee and Public Advocate reappointed

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

JA [2018] WASAT 68
RJK [2019] WASAT 109

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These are the reasons for the decision made on review of orders made under the Guardianship and Administration Act 1990 (WA) (the GA Act) for JA (the represented person).
The represented person is a 32yearold man with an intellectual disability. Guardianship and administration orders were first made for him in 2018. Prior to that time his financial and personal decisions were managed informally with the support of his family, his mother D, his father B, sister S, and stepfather T.
The orders currently under review pursuant to s 84 of the GA Act appoint the Public Trustee as plenary administrator of the represented person's estate and the Public Advocate as his limited guardian.

The current proceedings before the Tribunal

The guardianship order dated 24 August 2018 was due for periodic review on 24 August 2019 and listed for hearing on 15 October 2019. That hearing was adjourned so that the review of the guardianship order could be heard together with the review of the administration order due in December 2019.
The adjournment of the guardianship review followed the receipt of a letter from the Principal Legal Officer (PLO) of the Public Trustee on 9 October 2019 regarding issues in the management of the represented person's estate which the Tribunal considered were relevant to the review of both the guardianship and administration orders.
The matters were relisted and heard together on 9 January 2020. At that hearing the…

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 JA

Details

AGLC: JA [2020] WASAT 73
Case: [2020] WASAT 73
Decision Date: 9 JULY 2020

CaseChat Overview and Summary

The case involved a review of the orders appointing the Public Trustee as administrator and the Public Advocate as guardian for a person with an intellectual disability. The father of the represented person sought to be appointed as the administrator, arguing that the Public Trustee was in a conflict of interest. The represented person's father also claimed that the Public Advocate should be appointed as the administrator. The central issues before the court were whether the Public Trustee was in a conflict of interest, whether the Public Advocate should be appointed as the administrator, and whether the represented person required a guardian. The court determined that the Public Trustee was not in a conflict of interest and was best placed to administer the estate. The court also found that the represented person required a guardian and that the Public Advocate should be appointed, as the father was in a conflict of interest due to his involvement in financial decisions that were inconsistent with the administrator's role. The father's role as an informal decision-maker was deemed incompatible with the appointed administrator, and the need for oversight of the represented person was acknowledged.

The court emphasised that the Public Trustee was best suited to administer the estate, as they were independent and had the necessary expertise. The father's involvement in financial decisions that conflicted with the administrator's role made him unsuitable for the position. The court further found that the represented person required a guardian, as the father's informal decision-making was not sufficient to protect the represented person's interests. The Public Advocate was appointed as the guardian due to the father's conflict of interest and the lack of any other proposed candidates. The court concluded that the Public Advocate was the most appropriate person to ensure the represented person's best interests were protected. The court's decision was based on the need for an independent and impartial administrator and guardian, capable of making decisions in the represented person's best interest, free from conflicts of interest.

Orders