K [2017] WASAT 45

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 45
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:2903/2016	Heard:	7 NOVEMBER 2016 (WITH FURTHER SUBMISSIONS RECEIVED ON 10 JANUARY AND 3 FEBRUARY 2017)
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	15/03/17
No of pages:	21	Judgment Part:	1 of 1
Result:	The applications for the making of guardianship and administration orders are dismissed
Category:	B
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Parties:	K
Catchwords:	Guardianship and administration Mental disability Whether able to protect health and safety Whether in need of oversight Whether able to make reasonable judgments about personal and financial matters Psychological problems Clear and cogent evidence needed to rebut presumption of capacity Beneficial interest in funds held by a Court Person's actual estate Purpose and intent of Guardianship and Administration Act 1990 (WA) Protective jurisdiction Freedom of decision and action Applications dismissed
Legislation:	Guardianship & Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 84, s 97(1)(b)(iii)
Case References:	FS [2007] WASAT 202 GC and PC [2014] WASAT 10 MC [2004] WAGAB 5 Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 S v State Administrative Tribunal of Western Australia [No2] [2012] WASC 306 SM [2015] WASAT 132
Summary	K was a 63 year old woman who lived independently in public housing in Western Australia.,K was in receipt of the disability support pension.,K had a beneficial interest in funds held by the Supreme Court of Victoria (Court). Those funds (referred to as funds or Court funds) were the product of an action taken by K, by her litigation guardian, in respect to her interest in her late father's estate.,The Intensive Support Team of the Funds in Court of the Supreme Court of Victoria (applicant), made applications in Western Australia for the appointment of a guardian for K and the appointment of an administrator of her estate.,The applicant claimed that K suffered from a multitude of physical and mental health issues which appeared to be progressively deteriorating and that a trigger for the applications was the threat of a joint suicide by K and her partner D because they maintained insufficient funds were being released by the Court. ,A clinical psychologist had assessed K's mental state as impacted by significant ongoing psychological issues that appeared to have arisen principally from childhood trauma. This predisposed K to enter into relationships characterised by abuse and dependency with features of timidity and a lack of assertiveness.,The clinical psychologist had subsequently assessed K as not being at serious risk of self-harm and K denied any wish to self-harm.,The clinical psychologist said that the psychological problems faced by K did not imply that she was unable to manage her pension income.,Because of the ways in which K has acquired strategies over a long period of time to protect herself in her relationships with others, the Tribunal could not be satisfied to the required standard that K lacked…

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: K [2017] WASAT 45
Case: [2017] WASAT 45
Decision Date: 15 MARCH 2017

CaseChat Overview and Summary

The applicants sought to have the respondent declared incapable of managing their own affairs under the Guardianship and Administration Act 1990 (WA). The dispute centred around whether the respondent had the capacity to protect their health and safety, whether they were in need of oversight, and whether they could make reasonable judgments about personal and financial matters. The court had to consider the respondent's psychological problems and the evidence provided to determine their capacity.

The court held that the presumption of capacity remained unrebutted, as the evidence provided was not clear and cogent enough to establish that the respondent was unable to protect their health and safety or make reasonable judgments about personal and financial matters. The court emphasised the need for such evidence to rebut the presumption of capacity. Additionally, the court considered the purpose and intent of the Guardianship and Administration Act 1990 (WA) and its protective jurisdiction, which aimed to balance the individual's freedom of decision and action with the need for protection.

As a result, the court dismissed the applications for the making of guardianship and administration orders. The respondents were found to retain their capacity to manage their own affairs, and the applicants' requests for oversight were denied. The court's decision reflected the need for clear and convincing evidence to establish incapacity and the importance of protecting individual autonomy.

Orders

Orders of the court

The applications for the making of guardianship and administration orders are dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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