K
[2025] WASAT 67
•10 JULY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: K [2025] WASAT 67
MEMBER: DR E MARILLIER, SENIOR MEMBER
HEARD: 19 JUNE 2025
DELIVERED : 10 JULY 2025
FILE NO/S: GAA 2358 of 2025
K
Represented Person
C
Applicant
Catchwords:
Whether leave should be granted for review of guardianship and administration orders - Whether change in circumstances - Whether any other reason decision no longer in represented person's interests
Legislation:
Guardianship and Administration Act 1990 (WA), s 17A, s 19(a), s 85(2), s 86, s 87
Result:
Leave refused
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
| Applicant | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | N/A |
Case(s) referred to in decision(s):
RK [2022] WASAT 112
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is a decision on whether to grant or refuse leave for review of the guardianship and administration orders made by the Full Tribunal on 19 March 2025 (March decision). Those orders continued the appointment of the Office of the Public Advocate (OPA or Public Advocate) as guardian for K and appointed the Office of the Public Trustee (Public Trustee) as plenary administrator. The functions of the limited guardian were expanded so they now include accommodation, medical treatment, services, contact, travel and to act as next friend in any legal proceedings except those relating to K's estate. This order is to be reviewed by 19 March 2026.
If leave is granted, this will be the fourth matter to go to a full hearing in relation to K within 12 months.
The application is pursuant to s 87 of the Guardianship and Administration Act 1990 (WA) (GA Act). It is made by K's brother C, who lives in Sydney. C brought a previous application pursuant to s 87 (where leave was granted for a review under s 86) in May 2024. This led to the revocation of the previous appointment of K's mother, D, as her guardian and administrator, which had been in place since 2015.
The Public Advocate was initially appointed as both the plenary administrator and the limited guardian in July 2024, because the learned Member had concerns regarding the historic oversight of D's performance as administrator by the Public Trustee.
The Public Advocate sought review of her appointment as plenary administrator, and the learned Member revoked and substituted the administration order in August 2024. The new order appointed the Public Trustee as limited administrator with all the powers of a plenary administrator apart from those vested in the Public Advocate. The Public Advocate was appointed as the limited administrator to seek legal advice on behalf of K in relation to any claim she may have against the Public Trustee.
In November 2024, D sought review of the orders revoking her appointment. At Directions, it was clear that D was aggrieved by the original decision. Although her application was out of time, the Tribunal extended the time for her to file the application for review under s 17A of the GA Act, and the matter was heard and determined in March 2025.
C, the applicant in the current matter, was legally represented until just prior to the March hearing. He had proposed himself as guardian and administrator and filed character references in support of his suitability. Two days before the hearing, C withdrew his candidacy, without giving a reason. He attended the hearing remotely, having dispensed with legal representation the day before.
C filed the current application under s 85(2) of the GA Act in early May 2025, claiming that the Public Advocate had been guilty of neglect and misconduct and is unfit to continue.
The matter was listed for Directions to consider whether in fact C was seeking review of the Full Panel decision in March 2025 (where appeal would lie with the Supreme Court),[1] or whether there was a change in circumstances or another reason a review should be held pursuant to s 87.
[1] GA Act s 19(a).
I was not prepared to accept that the Public Advocate had been guilty of neglect and misconduct under s 85(2) without a full hearing where responses to allegations could be made.
C consented to the application being taken under s 87 for my consideration of whether leave should be granted. He indicated that at the time of the March decision he was accepting of it, and that it is since that time that he has become disappointed.
I listed the matter for determination of leave as a preliminary question for three reasons.
Firstly, because of the potential for 'anxiety and disruption' to K that could be caused by frequent reviews.[2]
[2] RK [2022] WASAT 112 (RK) [38].
Secondly, C's submissions referred to many decisions and events which pre-dated the March decision as a basis by which he said the Public Advocate could be found unfit, and these would not form a basis on which the Tribunal would grant leave under s 87 for a 'change in circumstances' since the March decision.[3]
[3] RK [40] - [42].
Thirdly, C submitted that he wanted the Tribunal to grant leave for reasons that included: that he was excluded from participating in the March Hearing (I note that he was able to participate via videoconference, and did so), that his application was withdrawn because of untested claims that K did not want to be in the same room as him, and that he wanted a new hearing before a full panel that had a new presiding member (to avoid any perception of bias). This raised concerns for me that despite his assurance he was accepting of the March decision, he was in fact alleging that decisions made about the conduct of that hearing were procedurally unfair and prejudicial. The Tribunal does not have jurisdiction to consider those issues, which would require C to seek leave for a review of the March decision by the Supreme Court.
Principles to be observed and legislative framework
The primary concern of the Tribunal is the best interests of the represented person.[4]
[4] GA Act s 4(2); RK [44].
In considering any matter relating to a represented person or a person in respect of whom an application is made the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.[5]
[5] GA Act s 4(7).
Any person may request the Tribunal for leave to apply for the review of a guardianship order or an administration order.[6]
[6] GA Act s 87(1).
The Tribunal may refuse the request; or if it is satisfied that because of a change of circumstances or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review.[7]
[7] GA Act s 87(5).
Issues to be determined
The issues I need to determine are:
(a)Has there been a change in circumstances since the March decision?
(b)Is there some other reason that 'suggests that the challenged decision was not, or is no longer, in the represented person's best interests'?[8]
(c)What are K's views and wishes in relation to this matter?
(d)Should leave be granted for the applicant to apply for review of the orders?
[8] RK [43].
Has there been a change in circumstances?
C proposed himself for appointment prior to the March hearing but withdrew his candidacy two days prior to the hearing. He now proposes himself for appointment.
C made extensive written submissions prior to the hearing on the question of leave. Unfortunately, he makes references to a 'Guardianship and Administration Act 1990 (WA)' which does not correspond to the actual Western Australian legislation of that name, and so his citing of sections does not make sense, as the sections he refers to in the GA Act do not exist or do not correspond to what he asserts they say. I have done my best to understand the spirit and intent of his written submissions, nonetheless. C filed copies of extensive correspondence between himself and the Public Advocate, and the Ombudsman, which suffered similarly from referring to provisions that are not present in the GA Act.
C told me that he withdrew his candidacy two days prior to the March decision because of the decision that he must participate from a separate room at the Tribunal from K. C characterised this as being excluded from the hearing. He understood there had been information provided to the Tribunal that K had indicated she did not want to be in the same room. C does not believe this was a true statement of K's wishes. However, he concluded that there was no chance of him being appointed and no alternative to the appointment of the Public Advocate. He did hope to have some involvement in decision-making for K through liaison with the OPA guardian.
C also stated that he understood the Public Advocate had arranged supported accommodation for K, and that there was significant funding for support services. His understanding was that K would be placed in a therapeutic environment. He was happy for the Public Advocate to continue at that point. However, he did not see it as a '30-40 year proposition' and believed it would lead to K's placement in a family home setting.
C says his change in position, such that he is now unhappy with the Public Advocate and seeking appointment as an alternative, is in part because K appears distressed when they communicate over Facetime. He described a videocall in mid-June where K appeared withdrawn and tearful. C alleges this is due to emotional trauma and says he thinks there is an urgent risk to K's mental health. He wants an independent Auslan translator to support any communication with K about her views and wishes, rather than the Auslan-speaking support worker with whom K was living after she stopped living with D, and before she moved into the current accommodation.
C also referred in his written submissions to his dissatisfaction with decisions made in December 2024 by the Public Advocate in the context of K having a holiday in Sydney and staying with C, chaperoned by a female cousin. C says the Ombudsman found that the Public Advocate did not have the 'contact' authority at the time a decision was made to cut that visit short. I have explained to C that the Public Advocate did have the function of deciding where K should live, either permanently or temporarily, and with whom she should live, as well as authority to determine whether K was to travel interstate or overseas at the time of those decisions.
The operational decisions of the Public Advocate several months prior to the March decision are not matters the Tribunal can find constitute a change in circumstances that would support leave being granted for a review of the March decision under s 87. This is because it is not the role of the Tribunal to 'review the merits of the myriad of daily decisions which may be made by a guardian or administrator in the exercise of their decision-making authority'.[9] It is also material to which C could have drawn the attention of the Tribunal in March, and therefore does not constitute a change in circumstances.[10]
[9] RK [35].
[10] RK [42].
In essence, the only 'change in circumstances' is that C is now willing to be considered for appointment as guardian and administrator because he does not like the decisions made by the Public Advocate both before and after the March decision. Effectively he has changed his mind. C had the opportunity to provide himself as an alternative for the Tribunal to consider at the March hearing and he chose to withdraw his candidacy.
I do not find that this is a change in K's circumstances that would give rise to a reason justifying the grant of leave.
Is there some other reason that 'suggests that the challenged decision was not, or is no longer, in the represented person's best interests'?
C says that K appears distressed when they communicate via Facetime. He expressed concerns that this means that her current accommodation and care arrangements are not meeting her needs and are putting her emotional well-being at risk.
K's brother N, who lives in Perth, gave oral evidence and made written submissions indicating that he does not support any review of the current orders. He says he believes 'the Public Advocate has done a great job in ensuring K gets what she needs in her new life, along with ongoing support'.
N says K does not understand what is being said or discussed in hearings. He says when she is present at hearings it causes K undue stress due to some family members showing stress towards her in past Tribunal hearings.
N gave evidence that '[K] is going wonderfully well. She has come a long way in the last 12 months and is fit and healthy'.
E, the support worker with whom K lived prior to moving into the current accommodation, and who takes K out to participate in art every Friday, reported that '[K] is very happy at [M] - it has been an awesome thing for her. [K] is happy for things to stay the same as they are'.
E said that from her perspective she would also support things staying the same, other than she would advocate for there to be more Auslanspeaking staff to work with K.
The Public Advocate delegated guardian reports that K's circumstances have not changed. C has had unrestricted contact since April via Facetime and is currently visiting Perth and free to see K and take her on outings.
K has moved into her new accommodation. OPA are working with the facility to engage therapists who can use Auslan.
The Public Advocate rejected assertions by C that K was isolated, reporting that K is going out on hikes with supports, and has regular outings with E on Fridays. Both OPA and the manager of the accommodation ask K what she would like to do in relation to activities and contact with others.
The reports OPA is receiving from everyone other than C is that K is happy.
OPA's view is that there has been no change in circumstances and that a review is not necessary.
OPA believes that K is not really aware of what is happening in terms of Tribunal processes and the orders that are in place. As such, their view is that a decision to grant or refuse leave would not really affect K.
Taking into account that this application was made just six weeks after the matter was determined by a Full Panel of the Tribunal, that the majority of the issues raised by C in his application could not be dealt with under a s 86 review, there has been no change in K's circumstances, and N, E and OPA all report that K is happy and thriving I cannot find that there is an 'other reason that suggests that the March decision was not or is no longer in the best interests of [K]'.
As stated in RK at [39] in setting the review period of guardianship and administration orders 'the Tribunal will take into account the evidence bearing upon the question whether a review within a period less than the maximum five-year period for a review is warranted. In those circumstances, the guardianship or administration order should not be reviewed in advance of the review period specified by the Tribunal unless there is a good reason for doing so'.
The Full Tribunal found that the current orders should be reviewed by 19 March 2026 - some nine months from now. I have found no good reason that would justify bringing that review forward at this time.
What are K's views and wishes in relation to this matter?
N and OPA are of the view that K does not understand the Tribunal process and cannot express a view about it. They both believe that K is currently happy.
E communicates with K in Auslan and by gesture, and says K is currently very happy in her supported accommodation, and happy for things to stay the same.
C described how he communicates by gesture over Facetime with K, for example showing a calendar with dates, miming an aeroplane and lifting up a tin of a nutritional supplement drink K likes to try to tell her that he was flying over to visit her and bringing some of the drink for her.
In previous matters relating to K, the Public Advocate has completed extensive investigations, including to seek K's views and wishes. In a report of 18 July 2024, the Investigator reported:
The Public Advocate's representative spent some time conversing with [support worker] and meeting with [K]. In conjunction with her intellectual disability and hearing impairment, [K] does not know Auslan. The author was unable to gather the views and wishes of [K] as a result. [K] was polite and waved in response to the author's greeting on arrival. [The support worker] explained that it is difficult to determine the degree of [K's] comprehension given her diagnoses and inability to communicate however suggested it was likely minimal based on her observations.
[K] carries with her an iPad with some basic symbols and icons that she points at to communicate simple wishes and needs. Though deaf, it is possible that [K] can lip read some familiar names and/or terms. The author observed that when previous support worker, [R] was mentioned in conversation, [K] immediately grabbed her iPad and pointed intently at a photo/icon of [R].
I am satisfied that it is not possible to ascertain specific views and wishes about whether or not leave should be granted for a review of the orders from K due to the documented limitations in her comprehension and communication.
Conclusion
There has been no change in circumstances since the March decision, and there is no other reason that would justify the grant of leave for review under s 87 of the GA Act in this matter.
Orders of the Tribunal
The Tribunal orders:
1.Leave is refused to the applicant to apply for the review because the application does not disclose any change in circumstances or any other reason that a review should be held.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, SENIOR MEMBER
10 JULY 2025
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