JAB - [2010] WASAT 97

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JAB [2010] WASAT 97

MEMBER: MS F CHILD (MEMBER)
MR J MANSVELD (MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)

HEARD: 11 AUGUST 2009 AND 20 NOVEMBER 2009
20 JANUARY 2010 AND 25 MARCH 2010

DELIVERED : 8 JULY 2010

FILE NO/S: GAA 1615 of 2009

BETWEEN: JAB
Represented Person

Catchwords:

Guardianship and administration - Periodic review of an administration order - Whether the represented person remains a person for whom an administration order can be made - Whether she is in need of an administrator - Suitability of the administrator for appointment - Conduct of the proceedings before the Tribunal relevant to the question of suitability Whether the administrator able to perform the functions - Direction to the administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64, s 68, s 68(3), s 70, s 70(2)(c), s 70(2)(f), s 80, s 84, s 90
State Administrative Tribunal Act 2004 (WA), s 76

Result:

Administrator reappointed with direction

Category: B

Representation:

Counsel:

Represented Person : Self-represented

Solicitors:

Represented Person : N/A

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

MO and JB [2008] WASAT 228
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Following a review, the Tribunal confirmed the appointment of the partner of a woman with a diagnosis of dementia as the administrator of her estate. The reappointment followed protracted proceedings for review of an order made by the Tribunal in May 2008. The order was initially due for review in August 2009; however, the review was not concluded until March 2010.
In the course of the review, the administrator rejected specialist medical evidence and asserted that the represented person made her own decisions and did not need an administrator of her estate. The administrator maintained this position despite the represented person having a diagnosis of dementia made some years before. The administrator produced no new medical evidence. The administrator conceded in March 2010 that the represented person needed an administrator of her estate only when alerted to the possibility of the appointment of an alternative administrator who recognised the protective nature of that role.
The correspondence submitted to the Tribunal by the administrator and the way in which she conducted the review before the Tribunal raised the question of whether she was suitable for reappointment. It appeared to the Tribunal that she was unable to deal with the review in a reasonable and measured way. The Tribunal considered that this may impact on her management of the estate if she conducted other legal proceedings on behalf of the represented person. As the accounts submitted by the administrator had been allowed by the Public Trustee, the Tribunal concluded that the financial management of the estate had been satisfactory. The Tribunal decided to reappoint the administrator, but without the authority to conduct legal proceedings on behalf…

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.

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Details

AGLC: JAB [2010] WASAT 97
Case: [2010] WASAT 97
Decision Date: 8 JULY 2010

CaseChat Overview and Summary

In the matter of JAB, the court was required to consider the periodic review of an administration order concerning a represented person. The legal issues revolved around whether the represented person still qualified for an administration order, whether she still required an administrator, the suitability of the current administrator, and the conduct of the proceedings before the Tribunal. The court needed to examine the legislative intent of the Guardianship and Administration Act, as well as the evidence presented regarding the represented person's condition and the administrator's conduct.

The court considered the legislative intent behind the Guardianship and Administration Act, as outlined by Heenan J in Re The Full Board of the Guardianship and Administration Board. The court acknowledged that the Act was designed to protect vulnerable adults who require assistance with their personal and financial affairs. The court examined the evidence presented before it, including the administrator's challenge to the existing medical evidence and her proposal to have the represented person assessed by a neurologist. However, the court was left uncertain as to whether the represented person had actually been assessed by the neurologist, as the Tribunal had not received a report from the neurologist. The court also took into account the administrator's conduct, including her intention to seek an injunction against the Tribunal and her complaint to the CCC.

The court determined that the represented person still required an administration order, as she was in need of protection and assistance due to her impaired faculties. However, the court found that the administrator was not suitable for appointment, due to her conduct and the lack of evidence regarding the represented person's condition. The court made an order appointing a new administrator and directed the new administrator to perform certain functions. The court also made an order directing the new administrator to take steps to ensure that the represented person's medical condition was properly assessed and that appropriate reports were provided to the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MR J

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Ratio Decidendi

Legal Principle Established

Established by: MR J

The legislative intent of the GA Act was considered by EM Heenan J in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268. Heenan J said at para [43]:…In this regard it seems essential to appreciate that the Guardianship and Administration Act is intended to 'provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs ... and to make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes' (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or illconsidered personal decisions or action, or by unscrupulous or illadvised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection. The periodic review of the order made on 12 May 2008 was first listed for hearing on 11 August 2009. At that hearing, the administrator challenged the existing medical evidence before the Tribunal and sought an adjournment so that the represented person could be assessed by Dr PP, a neurologist, with whom she said the represented person had an appointment. The administrator gave the date of the appointment in the hearing and raised no objection to the proposal to provide medical reports held by the Tribunal to Dr PP prior to the assessment. Following the matter being adjourned, and the Tribunal staff being advised that the represented person did not have an appointment with Dr PP on the date given by the administrator, the administrator advised a Tribunal staff member that she intended to seek an injunction in the Supreme Court to restrain the Tribunal contacting medical practitioners and in particular Dr PP in respect of the represented person. In a letter dated 25 August 2009, addressed to the Executive Officer of the Tribunal, the administrator said:Public officers at both the State Administrative Tribunal and the officers of the Public Advocate including you, are not judicial officers and therefore are not exempt from the CCC Act, and have been included in my complaint to the CCC by virtue of their misconduct in that I believe they corruptly acted and corruptly failed to act in the performance of their duties. A CCC investigation commenced last year had been pending additional advice from me, which I am in the process of providing to them. Would you therefore desist from harassing and threatening me and allow the investigation to proceed unhindered. At the conclusion of the review, the Tribunal had not received a report from Dr PP, and is unclear if Dr PP has assessed the represented person or not.