JL - [2023] WASAT 20 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   JL [2023] WASAT 20
MEMBER:   MS F CHILD, MEMBER
HEARD:   31 AUGUST 2022 AND 7 DECEMBER 2022
DELIVERED          :   23 MARCH 2023
FILE NO/S:   GAA 2758 of 2022

JL
Represented Person

Catchwords:

Guardianship and administration - Application for the appointment of a guardian and for review of administration order - Represented person suffering acquired brain injury and substance misuse disorder - Ongoing methamphetamine abuse - Risk of violence to mother and primary carer - Whether a need for guardian - Whether a need for an independent guardian to make decisions regarding accommodation - Wishes of the represented person that his mother manage his affairs - Primary obligation of the Tribunal the best interests of the represented person - Family and cultural considerations of best interests - Less restrictive alternatives to the appointment of a guardian

Legislation:

Aborigines Act 1905 (WA)
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(4), s 4(5), s 4(6), s 4(7), s 43, s 43(1)(c), s 43(2)(c), s 44(1)(b), s 44(5), s 51, s 64, s 80(1), s 110ZD, Pt 6
Mental Health Act 2014 (WA)
Native Welfare Act 1905 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Represented Person

Solicitors:

Represented Person

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

FS [2007] WASAT 202
NCK [2004] WAGAB 6
PR [2021] WASAT 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

An Intensive Community Outreach mental health team (MH team) made an application on 23 June 2022 under the Guardianship and Administration Act1990 (WA) (GA Act) seeking orders for the appointment of a guardian of JL and for review of an administration order by which BL, the mother of JL, is appointed the plenary administrator of his estate.
The application proposes that the Public Trustee be appointed the administrator and the Public Advocate be appointed JL's guardian. The application states that JL 'stands over' BL for money to buy methamphetamine and she is at chronic risk of violence from him. It is argued that a guardianship order is needed so that the guardian has oversight of accommodation, services and medical procedures for JL.
The application was first heard on 31 August 2022 with a final hearing on 7 December 2022.
At the first hearing the orders were opposed by JL, his mother, BL and grandfather AJ. The Public Advocate's investigator argued that the orders were not needed.
I adjourned the hearing so that the applicant could consider whether there were less restrictive alternatives to the appointment of a guardian for JL, in particular, whether the Public Trustee, as the trustee of JL's compensation trust could play a role in the control of JL's access to funds used for the purchase of illicit drugs. I also wanted to hear from an officer from the Courts Intellectual Disability Diversion Program (IDDP) to which JL had reporting requirements.
By the time of the final hearing, JL was…

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: JL [2023] WASAT 20
Case: [2023] WASAT 20
Decision Date

CaseChat Overview and Summary

The State Administrative Tribunal (Tribunal) dismissed an application by an Intensive Community Outreach team (MH team) for the appointment of a guardian and for review of an administration order for JL. JL is a 34-year-old man with an acquired brain injury following a motor vehicle accident. He has a diagnosis of organic psychosis and substance use disorder. JL's mother, BL, is his primary carer and is the administrator of his estate. The application proposed that the Public Trustee be appointed the administrator and the Public Advocate be appointed JL's guardian. The application was made in the context of ongoing methamphetamine abuse by JL. The MH team expressed concern that BL facilitated JL's access to methamphetamine by giving him extra money. BL denied this allegation. The application was opposed by JL, BL and JL's grandfather, AJ. The Public Advocate's investigator argued that the orders were not needed. The Tribunal found that JL was incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person or is in need of oversight, care or control in the interests of his own health and safety or for the protection of others and that he was in need of a guardian. However, the Tribunal was not satisfied that JL was in need of a guardian. BL was the person best placed to act as guardian and as she was unsuitable to be appointed as such, no person was suitable to be appointed. The Tribunal was satisfied that JL was a person for whom an administrator may be appointed as he lacked capacity to manage even simple financial matters. However, the Tribunal was not satisfied that JL was in need of an administrator at all. The application for review of the administration order was dismissed.

Orders