JW - [2019] WASAT 115

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   JW [2019] WASAT 115
MEMBER:   MS F CHILD, MEMBER
HEARD:   9 MAY 2019
DELIVERED          :   21 NOVEMBER 2019
FILE NO/S:   GAA 834 of 2019
JW
Represented Person

Catchwords:

Guardianship and Administration - Application for the appointment of a guardian - Cognitive impairment - Admission to hospital with malnutrition - Inconsistent decisions about medical treatment - Conflict in family - Conflict about discharge planning - Enduring power of guardianship not effective - Enduring guardian making decision about accommodation without regard to medical and other professional advice - Enduring guardian bound by same obligations to act in best interests as guardian - Public Advocate appointed limited guardian - Enduring power of guardianship suspended during the appointment of the Public Advocate

Legislation:

Guardianship and Administration Act 1990 (WA), s 51, s 110H, Pt 9A

Result:

Public Advocate appointed limited guardian
Enduring power of guardianship suspended

Category: B

Representation:

Counsel:

Represented Person

Ms Binstead

Solicitors:

Represented Person

Ryan & Durey

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These are the reasons of the Tribunal for a decision made on 9 May 2019 to appoint a guardian for JW, on an application made by a hospital social worker (the applicant) following JW's admission to hospital for malnutrition. The applicant sought the appointment of a guardian and an administrator for JW who is an elderly woman and was at the time of the application and hearing an inpatient in the hospital.
JW attended the hearing in person and was legally represented. JW's children C, L and A all attended the hearing as did an investigator from the Office of the Public Advocate.
The applicant and other members of the treating team including the treating consultant, Dr AP and Dr OL, a consultant psychiatrist, the occupational therapist and the clinical nurse case manager all attended the hearing by video from the hospital.
The Tribunal adjourned the application for the appointment of an administrator of JW's estate following submissions by JW's solicitor and by C.
In the course of the hearing the applicant made an application for intervention in an enduring power of guardianship (EPG) made by JW in 2016 by which she had appointed C as her enduring guardian. This was accepted by the Tribunal.
Brief oral reasons for the decision of the Tribunal were delivered at the conclusion of the hearing. The transcript of the reasons for the decision has been edited to remove identifying information, repetition and for clarity.
Those reasons were as follows:
Turning to the guardianship application and the application for intervention in the EPG, the Tribunal must be satisfied that the presumption of capacity is displaced by the evidence.
There are particular findings that have to be made in relation to guardianship applications: to appoint a guardian for someone there has to be the finding that the person is incapable of looking after their own health and safety, incapable of making reasonable judgments about their person,…

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 JW

Details

AGLC: JW [2019] WASAT 115
Case: [2019] WASAT 115
Decision Date: 21 NOVEMBER 2019

CaseChat Overview and Summary

The matter before the court involved an application for the appointment of a guardian for JW, a person with cognitive impairment who was admitted to hospital suffering from malnutrition. The application was made by the Public Advocate due to concerns about inconsistent decisions regarding medical treatment and conflicting family dynamics. JW's sister, who had an enduring power of guardianship, was making decisions about JW's accommodation without considering professional advice, leading to further complications in discharge planning.

The primary legal issues before the court were whether JW's enduring guardian was bound by the same obligations as a statutory guardian to act in JW's best interests and whether the enduring power of guardianship should be suspended to allow for the appointment of a limited guardian by the Public Advocate. The court also needed to determine the appropriate scope of the Public Advocate's authority as the limited guardian and the implications of the enduring power of guardianship being suspended during this period.

The court found that JW's enduring guardian was indeed bound by the same obligations as a statutory guardian to act in JW's best interests, and that the enduring power of guardianship should be suspended to facilitate the Public Advocate's appointment of a limited guardian. The court emphasised the importance of the guardian's duty to act in the best interests of the protected person and the necessity for the enduring guardian to consider professional advice when making decisions. The Public Advocate was appointed as a limited guardian, with authority to make decisions regarding JW's accommodation and medical treatment, while the enduring power of guardianship remained suspended during the Public Advocate's appointment.

The court issued orders appointing the Public Advocate as a limited guardian to make decisions regarding JW's accommodation and medical treatment, with the enduring power of guardianship suspended during this period. The orders also provided for ongoing monitoring and review of the situation to ensure that JW's best interests were being served. The court's decision underscored the importance of guardians acting in the best interests of the protected person and the need for professional advice to be considered in decision-making processes.

Orders