LM and MM - [2010] WASAT 110

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: LM and MM [2010] WASAT 110

MEMBER: MS F CHILD (MEMBER)

HEARD: 19 OCTOBER 2009 AND 22 OCTOBER 2009

DELIVERED : 30 JULY 2010

FILE NO/S: GAA 2393 of 2009

BETWEEN: LM
Applicant
AND
MM
Represented Person

Catchwords:

Guardianship and administration Review of guardianship order Represented person with advanced dementia resident in a nursing home Daughter appointed as guardian banned from nursing home Guardian's relationship with service providers completely broken down Need for an independent guardian to decide where the represented person should live, to consent to medical treatment and to determine the contact she has with others

Legislation:

Guardianship and Administration Act 1990 (WA), Pt 5, Div 3, s 4, s 43(1)(b), s 43(1)(c), s 44(5), s 17A, s 86, s 87

Result:

Public Advocate appointed limited guardian

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented Person : N/A

Solicitors:

Applicant: N/A
Represented Person : N/A

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

LM and MM [2008] WASAT 106
LM and MM [2009] WASAT 209

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On review of a guardianship order for a woman with advanced dementia, the Tribunal revoked her daughter's appointment as her guardian and appointed the Public Advocate as the guardian. The daughter had been banned from the nursing home where her mother lived. Following the failure of mediation between the parties, the Tribunal found on the evidence that the working relationship between the daughter and the nursing home which provided her mother's care had completely broken down. In these circumstances, the daughter could not perform her function as guardian to consent to medical treatment on her mother's behalf.
The daughter wanted to move her mother from the nursing home, despite her acknowledgement that a move would be detrimental to her mother as she was settled and well cared for at that facility. Her brother did not agree with the proposed move.
The Tribunal determined that there was a need for an independent guardian to be appointed to make decisions about where the woman was to live, medical treatment decisions and the contact she should have with others.
The proposal that the son be appointed as the guardian was not accepted as the Tribunal found that an independent guardian was needed to negotiate access of the daughter to their mother. Further, the son's appointment as guardian might result in more conflict with his sister with whom he had only recently been reconciled after a period of estrangement.

Background

These reasons relate to a decision of the Tribunal to review a guardianship order which appointed LM, the daughter of MM (represented person) as her limited guardian. On review, the order was revoked and the Public Advocate appointed limited guardian. These written reasons are produced at the request of LM.
The review of the order followed an urgent application by the Director of Nursing of 'K' nursing home 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.

Keep reading for free

Create a free CaseChat account to read LM and MM and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] WASAT 110
Decision Date: 30 JULY 2010

CaseChat Overview and Summary

The case involved LM, a resident of a nursing home suffering from advanced dementia, and MM, her daughter. MM had been appointed as LM's guardian, but had been banned from the nursing home and her relationship with service providers had completely broken down. The dispute was about the necessity of appointing an independent guardian to make decisions regarding LM's living arrangements, medical treatment, and contact with others. The matter was heard in the Queensland Civil and Administrative Tribunal.

The legal issues centred on whether an independent guardian should be appointed for LM, considering her advanced dementia and the breakdown in MM's relationship with service providers. The court needed to determine if an independent guardian was necessary to make decisions in LM's best interests, including where she should live, her medical treatment, and her contact with others.

The tribunal found that an independent guardian was necessary to ensure that LM's best interests were properly considered and protected. The tribunal emphasised the importance of a guardian maintaining a constructive relationship with service providers to make informed decisions. The tribunal concluded that MM's relationship with service providers had deteriorated to the point where an independent guardian was required. The tribunal appointed an independent guardian to make decisions regarding LM's living arrangements, medical treatment, and contact with others.

The tribunal's final order was to appoint an independent guardian for LM, with specific powers to make decisions regarding her living arrangements, medical treatment, and contact with others. The independent guardian was instructed to work closely with service providers to ensure that LM's best interests were properly considered and protected.

Orders