LM and MM - [2009] WASAT 209

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: LM and MM [2009] WASAT 209

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MR J MANSVELD (MEMBER)
MS S GILLETT (SENIOR SESSIONAL MEMBER)

DELIVERED : 29 MAY 2009
EDITED REASONS DELIVERED ORALLY
ON 29 MAY 2009

FILE NO/S: GAA 912 of 2009

BETWEEN: LM
Applicant
AND
MM
Represented Person

Catchwords:

Guardianship and Administration - Review of guardianship order - Section 17A - Review by a Full Tribunal - Daughter appointed as guardian in lieu of Public Advocate - Guardian given limited powers - Tension between daughter and nursing home staff - Decision turns on its own facts

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 17A, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 44(2), s 44(5), s 86, s 87
State Administrative Tribunal Act 1990 (WA), Pt 3 Div 3

Result:

Application granted and LM appointed limited guardian for her mother MM

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented Person : Self-represented

Solicitors:

Applicant: Self-represented
Represented Person : Self-represented

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

LM and MM [2008] WASAT 106
LM and MM [2009] WASAT 81

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In March 2008, the Tribunal appointed the Public Advocate limited guardian for a 90 year old woman suffering from advanced dementia.
The appointment arose out of a breakdown in the relationship between the nursing home staff where the woman resided and the woman's daughter. She visited her mother on a daily basis.
Subsequent to the woman being moved to another nursing home, the daughter sought a review of the guardianship order and proposed that she be appointed her mother's guardian.
On 11 November 2008, a single member of the Tribunal confirmed the appointment of the Public Advocate as the woman's limited guardian.
The daughter sought review of the decision pursuant to s 17A of the Guardianship and Administration Act 1990 (WA).
By the time of the review hearing, the woman had spent 13 months in the nursing home and although issues had arisen between the daughter and the nursing home staff about the woman's care needs, these had been substantially resolved.
The nursing home and the Public Advocate supported the continuation of the guardianship as there remained a risk that the relationship between the daughter and the nursing home staff would again break down.
The Tribunal accepted that a risk remained, but that there was insufficient evidence before it about the current risk to warrant the ongoing appointment of the Public Advocate as the woman's guardian.
In accordance with the Guardianship and Administration Act 1990 (WA), the Tribunal appointed the daughter as the woman's limited guardian for two years to make decisions related to her ongoing treatment and health care.

Background

LM applied for review of a limited guardianship order in respect of MM under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act). Section 17A of the…

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

Case: [2009] WASAT 209
Decision Date: 29 MAY 2009

CaseChat Overview and Summary

The applicants, LM and MM, sought a review of a guardianship order made by the Public Advocate. LM is the daughter of MM, who had been appointed as MM's guardian. The Public Advocate had initially been appointed but later, MM's daughter was appointed in his place, with limited powers. The dispute arose from a conflict between MM's daughter and the staff of the nursing home where MM resided. The daughter sought to exercise more control over her mother's care, which the nursing home staff opposed. The key legal issue was whether the daughter's appointment as guardian, with limited powers, was appropriate and whether the tribunal had the authority to review the Public Advocate's decision.

The court considered the statutory framework governing guardianship and administration in the state. It examined the provisions of Section 17A of the Guardianship and Administration Act, which allows for review by a Full Tribunal. The court also evaluated the evidence presented regarding the daughter's suitability and the specific circumstances of MM's care. The court found that the daughter's limited powers were suitable given the context of the case. The tribunal had the authority to review the Public Advocate's decision, and the decision to appoint the daughter as guardian was upheld as appropriate.

The court concluded that the tribunal had exercised its discretion correctly in appointing the daughter as guardian with limited powers. The court recognised the daughter's commitment to her mother's welfare but also acknowledged the importance of the nursing home staff's role in providing care. The court's decision emphasised the need for a balanced approach that respected both the daughter's rights and the professional responsibilities of the nursing home staff. The order affirmed the daughter's role as guardian with limited powers, subject to the tribunal's ongoing supervision.

Orders