JPA and SA - [2012] WASAT 22

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JPA and SA [2012] WASAT 22

MEMBER: MS F CHILD (MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
DR A GARTON (SENIOR SESSIONAL MEMBER)

HEARD: 8 SEPTEMBER 2011 AND 18 OCTOBER 2011

DELIVERED : 7 FEBRUARY 2012

FILE NO/S: GAA 2111 of 2011
GAA 2331 of 2011

BETWEEN: JPA
Applicant
AND
SA
Represented Person

Catchwords:

Guardianship and administration - Applications for appointment of guardian and for review of administration order - Represented person with diagnosed mental illness - Whether person for whom guardianship and administration order may be made - Whether in need of guardian and administrator Whether a need for guardian to protect represented person from litigious behaviour of his mother Wishes of represented person Guardianship application dismissed Less restrictive alternative to the appointment of guardian to determine whether represented person should be involved in legal proceedings Continuing need for appointment of administrator to manage his financial affairs and conduct legal proceedings on his behalf Confirmation of appointment of Public Trustee as administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 17A, s 43(1), s 45(2)(g), s 45(2)(h), s 64(1), s 84, s 86
Mental Health Act 1996 (WA)

Result:

Administration order confirmed on review
Guardianship application dismissed
Application for review dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented Person : Ms S Shelvanayagam

Solicitors:

Applicant: Self-represented
Represented Person : Mental Health Law Centre

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

Public Advocate and CEF [2010] WASAT 54
SA [2010] WASAT 186

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The mother of a young man with a diagnosed mental illness applied to the Tribunal in July 2011 for the appointment of a guardian and administrator for him. She proposed the appointment of herself or the young man's sister as the administrator and herself as his guardian. The Tribunal had appointed the Public Trustee as the plenary administrator of the young man's estate in September 2010. That order was due for review in September 2011.
At the time of the applications and review the young man was an inpatient in hospital and being treated as an involuntary patient under the Mental Health Act 1996 (WA) having had a relapse of his longstanding mental illness. At the conclusion of the proceedings the represented person was again living in the community with support from the mental health team.
The Tribunal determined that the represented person remained a person for whom an administrator could be appointed and confirmed the appointment of the Public Trustee as the administrator of his estate.
The Tribunal also found that the young man was a person for whom a guardian could be appointed but dismissed the application because it found there were less restrictive alternatives available to meet his needs. The Tribunal had regard to the expressed wishes of the represented person who opposed the appointment of a guardian and, in…

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 JPA and SA

Details

AGLC: JPA and SA [2012] WASAT 22
Case: [2012] WASAT 22
Decision Date: 7 FEBRUARY 2012

CaseChat Overview and Summary

In the Federal Court, JPA applied for the appointment of a guardian and administrator for SA, his mother, who has been diagnosed with schizophrenia and has been receiving treatment for many years. JPA claimed that SA is unable to manage her financial affairs or conduct legal proceedings due to her mental illness and her litigious behaviour. SA opposed the application. The court was required to determine whether SA was a person for whom a guardianship and administration order may be made and whether she was in need of a guardian and an administrator. The court also had to consider the wishes of SA and whether there was a need for a guardian to protect her from her litigious behaviour.

The court found that SA was a person for whom a guardianship and administration order may be made, as she has been diagnosed with schizophrenia and has been receiving treatment for many years. The court also found that SA was in need of an administrator to manage her financial affairs and conduct legal proceedings on her behalf. However, the court found that there was no need for a guardian to protect SA from her litigious behaviour, as there were less restrictive alternatives available to determine whether she should be involved in legal proceedings. The court considered the wishes of SA and found that they should be given weight, but not determinative. The court also considered the potential harm to SA if she were to become involved in litigious behaviour and found that it was not sufficient to warrant the appointment of a guardian.

The court dismissed the application for the appointment of a guardian but confirmed the appointment of the Public Trustee as the administrator for SA. The court found that the appointment of the Public Trustee as the administrator was a less restrictive alternative to the appointment of a guardian and would allow SA to manage her financial affairs and conduct legal proceedings on her behalf, while also protecting her from the potential harm of her litigious behaviour. The court also found that the Public Trustee was the most appropriate person to act as the administrator, as they have the necessary expertise and resources to manage SA's financial affairs and conduct legal proceedings on her behalf.

The court ordered that the application for the appointment of a guardian be dismissed, but the appointment of the Public Trustee as the administrator be confirmed. The court also ordered that the Public Trustee be given authority to manage SA's financial affairs and conduct legal proceedings on her behalf, subject to the terms and conditions set out in the order. The court also ordered that JPA be given notice of any legal proceedings involving SA and be given the opportunity to make submissions to the court.

Orders