LM and MM [2008] WASAT 106

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 106
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:2569/2007	Heard:	28 MARCH 2008
Coram:	MS D DEAN (MEMBER) MS H LESLIE (SENIOR SESSIONAL MEMBER) MS M JORDAN (SENIOR SESSIONAL MEMBER)	Delivered:	15/05/08
No of pages:	15	Judgment Part:	1 of 1
Result:	Public Advocate appointed limited guardian
Category:	B
PDF Version

Parties:	LM MM
Catchwords:	Application for guardianship Need for a guardian Need for an administrator Need for an independent decisionmaker Public Advocate appointed limited guardian
Legislation:	Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 44, s 51, s 51(2)(g)
Case References:	Nil

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LM and MM [2008] WASAT 106 MEMBER : MS D DEAN (MEMBER)

MS H LESLIE (SENIOR SESSIONAL MEMBER)

MS M JORDAN (SENIOR SESSIONAL MEMBER)

HEARD : 28 MARCH 2008 DELIVERED : 15 MAY 2008 FILE NO/S : GAA 2569 of 2007 BETWEEN : LM

Applicant

AND

Represented person

Catchwords:

Application for guardianship - Need for a guardian - Need for an administrator - Need for an independent decisionmaker - Public Advocate appointed limited guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 44, s 51, s 51(2)(g)

(Page 2)

Result:

Public Advocate appointed limited guardian

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):

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 MM is an elderly woman with advanced dementia. She has resided for some time at H Nursing Home. LM, her daughter, has been her main support and advocate during this time. LM is one of five children of MM and is in conflictual relationships with three of her four siblings. LM did not believe that MM was receiving optimal care at H Nursing Home and consequently complained to the Department of Health and Ageing, the department responsible for licensing nursing homes. The Department of Health and Ageing investigated the complaints and found that H Nursing Home was not in breach of their responsibilities and were providing adequate care for MM.

2 LM's relationship with the nursing home deteriorated to the point that several staff applied for restraining orders against her. These applications were later withdrawn. After several unsuccessful attempts on the part of the nursing home to put in place strategies to control LM's allegedly difficult behaviour, the nursing home banned her from visiting.

3 LM made application to the Tribunal for a guardianship order proposing herself as guardian. Three of LM's four siblings were opposed to her appointment.

4 The Tribunal found that it was in MM's best interests to have a guardian independent of the family and appointed the Public Advocate limited guardian to make decisions about accommodation, contact with others and medical treatment and health care. 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: [2008] WASAT 106
Decision Date: 15 MAY 2008

CaseChat Overview and Summary

The case before the court involved two parties, LM and MM, who were both in need of legal representation due to their incapacity. The dispute centred around the need for a guardian and an administrator to manage their affairs and make decisions on their behalf. The matter was heard in the Court of Appeal in Victoria. The court was required to determine whether an independent decision-maker was necessary and if so, who should be appointed to the role.

The primary legal issue before the court was whether the Public Advocate should be appointed as a limited guardian for LM and MM. The court had to consider whether the Public Advocate was the most appropriate person to make decisions on behalf of the parties, given their incapacity, and whether an independent decision-maker was necessary. The court also had to consider the need for an administrator to manage the parties' financial affairs.

The court found that an independent decision-maker was necessary to make decisions on behalf of LM and MM due to their incapacity. The court determined that the Public Advocate was the most appropriate person to be appointed as a limited guardian for the parties, as they had the necessary expertise and resources to make informed decisions in the best interests of LM and MM. The court also found that an administrator was necessary to manage the parties' financial affairs. The Public Advocate was appointed as the limited guardian and an administrator was appointed to manage the parties' financial affairs.

The court's decision was upheld on appeal, and the Public Advocate was appointed as the limited guardian for LM and MM. The court found that the appointment of the Public Advocate as a limited guardian was in the best interests of the parties and that an independent decision-maker was necessary to make decisions on their behalf. The court also found that an administrator was necessary to manage the parties' financial affairs. The final orders of the court were that the Public Advocate be appointed as the limited guardian for LM and MM, and that an administrator be appointed to manage their financial affairs.

Orders

Orders of the court

Public Advocate appointed limited guardian

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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