LM and MM - [2009] WASAT 81

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: LM and MM [2009] WASAT 81

MEMBER: MS D DEAN (MEMBER)

HEARD: 11 NOVEMBER 2008

DELIVERED : 30 APRIL 2009

FILE NO/S: GAA 912 of 2009

BETWEEN: LM
Applicant
AND
MM
Represented Person

Catchwords:

Guardianship Public Advocate limited guardian with the authority to make decisions in respect of accommodation, contact and medical treatment Leave granted to daughter to apply for review of guardianship order Whether the daughter is suitable to act as guardian Public Advocate reappointed as limited guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 86, s 87, s 87(5)(b), s 90
State Administrative Tribunal Act 2004 (WA), s 78

Result:

Public Advocate re-appointed as limited guardian for one year

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

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In March 2008, the Tribunal appointed the Public Advocate limited guardian to make decisions in relation to accommodation, medical treatment and contact with others for MM, an elderly woman with advanced dementia. At the time this order was made, LM, daughter of MM, was in conflict with the nursing home where MM resided and, as a result, had been banned from visiting MM in the nursing home. Subsequent to her appointment in March 2008, the Public Advocate, in consultation with LM, moved MM to a new nursing home where LM was able to resume visiting her.
On 21 September 2008, LM applied to the Tribunal for a review of the guardianship order and proposed that she be appointed guardian in place of the Public Advocate. In making a decision in relation to this application, the Tribunal had evidence before it that the relationship between LM and the current nursing home was somewhat tenuous, with staff feeling under pressure from LM who, at times, had unrealistic expectations of nursing home staff and their care of MM. Both the nursing home and the Public Advocate recommended that the Public Advocate continue in the role of guardian until it was clear whether the relationship between LM and the nursing home was an ongoing workable one.
The Tribunal confirmed the appointment of the Public Advocate as limited guardian with the authority to make decisions about accommodation, medical treatment and contact. The Tribunal made a short order of 12 months, giving the parties time to ascertain whether the appointment of LM or a family member would be workable and in MM's best interests.

Background

The represented person (MM) is an elderly woman with advanced dementia. On 28 March 2008, the Tribunal appointed the Public Advocate limited guardian for MM with the authority to make medical treatment decisions, to decide where and with whom she should live and to determine what contact she should have with others: see LM and MM

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 81
Decision Date: 30 APRIL 2009

CaseChat Overview and Summary

In the Family Court, LM and MM were involved in a dispute concerning the guardianship of an individual. LM, the daughter, sought to challenge the appointment of the Public Advocate as the limited guardian of her mother, MM, with authority over accommodation, contact, and medical treatment. The court was required to determine whether LM was a suitable candidate to replace the Public Advocate as the guardian, considering the best interests of MM.

The legal issues before the court included the assessment of LM's suitability as a guardian, given her history of estrangement from MM and allegations of psychological and physical abuse. The court had to consider whether LM's past conduct and relationship with MM made her an appropriate person to make decisions on behalf of her mother. Additionally, the court needed to evaluate the evidence presented by both parties and the implications of the Guardianship and Administration Act 2018.

The court concluded that LM was not a suitable person to be appointed as the limited guardian. The reasoning included the estrangement between LM and MM, the allegations of abuse, and the potential conflict of interest that could arise from LM's appointment. The court found that the Public Advocate, who had acted as an impartial party, was better suited to make decisions in the best interests of MM. Consequently, the Public Advocate was reappointed as the limited guardian, and LM's application for review was dismissed.

Orders