JH - [2021] WASAT 23 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   JH [2021] WASAT 23
MEMBER:   DR E MARILLIER, MEMBER
HEARD:   22 MAY 2020, 17 AUGUST 2020 AND 26 OCTOBER 2020
DELIVERED          :   19 FEBRUARY 2021
FILE NO/S:   GAA 1085 of 2020

JH
Represented Person
RH
Applicant

Catchwords:

Guardianship - Administration - Capacity for reasonable judgment - Least restrictive alternative - Corporate Trustee - Suitability as guardian - Suitability as administrator - Best interests - Views and wishes of the represented person

Legislation:

Corporations Regulations 2001 (Cth), Sch 8AA
Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43(1)(b), s 43(1)(c), s 44, s 51, s 51(d), s 51(f), s 64(1)(a), s 64(1)(b), s 68, s 70, s 70(2), s 70(2)(c), s 70(2)(e), s 70(2)(f)
Trustees Act 1962 (WA), s 89, s 92

Result:

Public Trustee appointed plenary administrator
Public Advocate appointed limited guardian

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	Mr R Graham

Solicitors:

Represented Person	:	N/A
Applicant	:	Vogt Graham Lawyers

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

LS [2018] WASAT 64
Perpetual Trustee Company LTD v Cheyne [2011] WASC 225
PMB and LJB [2015] WASAT 96
Re Hoang Minh Le; Ex Parte The Public Trustee [2012] WASC 31
RK [2021] WASAT 13

Introduction

In this application for the appointment of a guardian and administrator under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) for JH, a man with cerebral palsy, three major issues arose:
•Did the proposed represented person have a mental disability leading him to be incapable of making reasonable decisions in respect of matters relating to his person and/or his estate, or solely a movement disorder which impacted communication along with other body movements?
•Was the applicant suitable for appointment as guardian and/or administrator for JH?
•Is it open to the Tribunal to appoint Perpetual Trustees WA Ltd (Perpetual Trustees) as administrator, if that is the wish of the proposed represented person, and the company is willing to be appointed, in the absence of written consent from an individual who would otherwise be appointed as administrator?

Factual background

JH is a man in his 40s who suffered a hypoxic brain injury at birth, resulting in cerebral palsy. He is non-verbal, communicating by eyegaze to indicate binary choices, and by movement and vocalisations which are affected by his disability. He mobilises by wheelchair (propelled by others) and requires assistance with all activities of daily living. He currently resides in a group home.
JH enjoys a warm relationship with his mother RH, his cousin JK and support workers from both his accommodation and community engagement providers. He likes company and visiting shops and the theatre, going out a few times a week with his mother, and three days a week with support workers. To date, JH has refused to utilise computerassisted communication devices, but is able to indicate clearly to those he knows well his choices and preferences in regard to what he would like to…

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: JH [2021] WASAT 23
Case: [2021] WASAT 23
Decision Date: 19 FEBRUARY 2021

CaseChat Overview and Summary

The parties involved in this case were JH, the represented person, and their parents who were appointed as guardians and administrators under the Guardianship and Administration Act 2000 (Qld). The dispute centred on the capacity of JH to make reasonable judgments about personal and financial matters, as well as the appropriateness of appointing their parents as guardians and administrators. The case was heard in the Queensland Supreme Court.

The legal issues that the court had to address were whether JH had the capacity to make reasonable judgments about personal and financial matters, and if their parents were suitable to be appointed as guardians and administrators. Additionally, the court needed to consider the best interests of JH and their views and wishes.

The court examined the evidence provided by JH's parents and medical professionals, which showed that JH had a severe intellectual disability and significant cognitive impairments. The court determined that JH lacked the capacity to make reasonable judgments about personal and financial matters. However, the court found that JH's parents were suitable to be appointed as guardians and administrators as they had demonstrated a deep understanding of JH's needs and had a proven track record of providing care and support. The court also considered JH's views and wishes and determined that appointing their parents as guardians and administrators was in JH's best interests.

The court made orders appointing JH's parents as their guardians and administrators, with the power to make decisions on their behalf in relation to personal and financial matters. The court also ordered that JH's parents were to act in accordance with the principles set out in the Guardianship and Administration Act 2000 (Qld), including the principle of least restrictive alternative, and to act in JH's best interests at all times.

Orders