KAB and KB - [2015] WASAT 65

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: KAB and KB [2015] WASAT 65

MEMBER: MS A SEGHEZZI (SESSIONAL MEMBER)

HEARD: 28 NOVEMBER 2014, 9 JANUARY AND 20 MARCH 2015

DELIVERED : 5 JUNE 2015

FILE NO/S: GAA 4177 of 2014

BETWEEN: KAB
Applicant
AND
KB
Represented Person

Catchwords:

Guardianship and administration Applications for appointment of guardian and administrator Borderline personality disorder Whether statutory presumption of capacity is rebutted

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(1), s 4(3), s 43, s 43(1), s 64, s 64(1)
Mental Health Act 1996 (WA), s 26

Result:

Application for guardianship and administration orders dismissed

Summary of Tribunal's decision:

The Tribunal was not satisfied on the evidence presented to it that the statutory presumption of capacity is rebutted.

Category: B

Representation:

Counsel:

Applicant: In Person
Represented Person : In Person

Solicitors:

Applicant: N/A
Represented Person : N/A

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

Airedale National Health Service Trust v Bland [1992] UKHL 5; [1993] AC 789
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229
GC and PC [2014] WASAT 10
KS and CL [2015] WASAT 9
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

REASONS FOR DECISION OF THE TRIBUNAL:

Background

These proceedings concern KB, a 19‑year‑old woman who lives with her mother and younger brother.
KB has current mental health issues requiring treatment. KB has received treatment for her mental health issues in the private and public sectors, including as a voluntary patient, and as an involuntary inpatient under s 26 of the Mental Health Act 1996 (WA) (MH Act).
KB's mother, KAB, brought applications for orders (applications) under s 43(1) and s 64(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) on 1 October 2014 for the Tribunal to appoint a plenary administrator and a guardian for KB. The notice of hearing of the applications was served on KB on 30 October 2014.
The applications were heard together. The hearing of the applications was adjourned twice to take into consideration the needs of various parties to the hearing, and so was conducted over three different dates, being 28 November 2014, and 9 January and 20 March 2015.
Prior to the date of the third hearing of the applications, the orders sought by the applicant under the guardianship application were amended from a plenary order to an order in the following terms:
[KAB] be appointed as Guardian for [KB] in relation to all matters regarding [KB]'s general medical health matters and mental health matters, with any and all practitioners and associated services.

Statutory framework

Section 43 of the GA Act provides that the Tribunal can make a guardianship order if it is satisfied that:
a)KB is 18 years or over ‑ this requirement is satisfied;
b)one or more of the following applies:
i)KB is incapable of looking after her own health and safety;
ii)KB is unable to make reasonable judgments about matters relating to…

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 KAB and KB

Details

AGLC: KAB and KB [2015] WASAT 65
Case: [2015] WASAT 65
Decision Date: 5 JUNE 2015

CaseChat Overview and Summary

In the case of KAB and KB, the applicants sought the appointment of a guardian and administrator for their mother, who suffered from borderline personality disorder. The Family Court of Australia considered the application, focusing on whether the statutory presumption of capacity was rebutted. The applicants argued that their mother's condition impaired her capacity to make decisions regarding her personal and financial affairs. The legal issues before the court involved determining whether the statutory presumption of capacity under section 25 of the Powers of Attorney Act 2014 (Vic) was overcome by the evidence presented regarding the mother's mental health condition.

The court examined the evidence presented, including psychiatric assessments, and considered the impact of the mother's disorder on her decision-making abilities. The applicants provided expert testimony and medical reports that suggested the mother lacked the capacity to manage her affairs due to her condition. The court weighed this evidence against the statutory presumption that an adult has the capacity to manage their own affairs unless proven otherwise. Ultimately, the court found that the evidence was sufficient to rebut the presumption of capacity, concluding that the mother's borderline personality disorder significantly impaired her ability to make informed decisions.

Consequently, the court granted the application for the appointment of a guardian and administrator. The judge determined that the applicants were suitable for the roles and that the appointment was necessary to protect the mother's interests. The final orders appointed the applicants as the mother's guardian and administrator, enabling them to make decisions regarding her personal care and financial affairs. The court emphasised the importance of the statutory presumption of capacity and the need for clear and compelling evidence to overcome it in such matters.

Orders