LWL [2008] WASAT 35

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 35
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1948/2007	Heard:	8 NOVEMBER 2007
Coram:	MR J MANSVELD (MEMBER) MS J STANTON (SENIOR SESSIONAL MEMBER) MS V O'TOOLE (SESSIONAL MEMBER)	Delivered:	13/02/08
No of pages:	30	Judgment Part:	1 of 1
Result:	An administrator is appointed A guardian is appointed
Category:	B
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Parties:	LWL
Catchwords:	Guardianship and administration Represented person unable to make reasonable judgments in respect of matters relating to all or any part of his estate Represented person in need of an administrator and guardian Remuneration of the administrator Decisions about treatment and health care must be made by a person with the relevant formal authority Role of the Public Advocate Meaning of de facto relationship and its relevance to s 119(3)(b) of the Guardianship and Administration Act 1990 (WA) Can a guardian initiate divorce proceedings on behalf of the represented person?
Legislation:	Family Law Rules 2004 (Cth), Pt 6.3 Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1)(b), s 44, s 45, s 46, s 64(1)(a), s 68, s 71(1), s 71(2), s 72(3), s 74, s 80, s 97(1), s 117(1), s 119, Pt 8 Interpretation Act 1984 (WA), s 13A(3) Marriage Act 1961 (Cth) State Administrative Tribunal Act 2004 (WA), s 78 Trustee Companies Act 1997 (WA)
Case References:	BTO [2004] WAGAB 2 FS [2007] WASAT 202 JGN and CEN [2006] WASAT 320

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LWL [2008] WASAT 35 MEMBER : MR J MANSVELD (MEMBER)

MS J STANTON (SENIOR SESSIONAL MEMBER)

MS V O'TOOLE (SESSIONAL MEMBER)

HEARD : 8 NOVEMBER 2007 DELIVERED : 14 FEBRUARY 2008 FILE NO/S : GAA 1948 of 2007

GAA 2116 of 2007

BETWEEN : LWL

Represented Person

Catchwords:

Guardianship and administration - Represented person unable to make reasonable judgments in respect of matters relating to all or any part of his estate - Represented person in need of an administrator and guardian - Remuneration of the administrator -Decisions about treatment and health care must be made by a person with the relevant formal authority - Role of the Public Advocate - Meaning of de facto relationship and its relevance to s 119(3)(b) of the Guardianship and Administration Act 1990 (WA) - Can a guardian initiate divorce proceedings on behalf of the represented person?

Legislation:

Family Law Rules 2004 (Cth), Pt 6.3

(Page 2)

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1)(b), s 44, s 45, s 46, s 64(1)(a), s 68, s 71(1), s 71(2), s 72(3), s 74, s 80, s 97(1), s 117(1), s 119, Pt 8
Interpretation Act 1984 (WA), s 13A(3)
Marriage Act 1961 (Cth)
State Administrative Tribunal Act 2004 (WA), s 78
Trustee Companies Act 1997 (WA)

Result:

An administrator is appointed

A guardian is appointed

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

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 LWL

Details

AGLC: LWL [2008] WASAT 35
Case: [2008] WASAT 35
Decision Date: 14 FEBRUARY 2008

CaseChat Overview and Summary

The case involved LWL, an individual who was unable to make reasonable judgments in respect of matters relating to their estate. The court was required to determine whether LWL needed an administrator and a guardian under the Guardianship and Administration Act 1990 (WA). Additionally, the court had to decide on the remuneration of the administrator and whether a guardian could initiate divorce proceedings on behalf of LWL. The role of the Public Advocate in this matter was also considered.

The central legal issues in this case revolved around the definition and relevance of a de facto relationship under s 119(3)(b) of the Act, as well as the capacity of a guardian to act on behalf of a represented person in initiating divorce proceedings. The court had to determine if LWL was in a de facto relationship and, if so, how this affected their eligibility for an administrator and guardian. Furthermore, the court had to decide if the guardian could represent LWL in divorce proceedings without explicit consent from LWL.

The court found that LWL was in a de facto relationship, which was relevant to their eligibility for an administrator and guardian under the Act. The court emphasised that decisions about treatment and health care must be made by a person with the relevant formal authority, which in this case was the guardian. The court also determined that the guardian could not initiate divorce proceedings on behalf of LWL without explicit consent from LWL. The court appointed an administrator and a guardian for LWL, ensuring that their estate and personal welfare were managed appropriately.

The court's final orders included the appointment of an administrator and a guardian for LWL. The court also determined that LWL's de facto relationship was relevant to their eligibility for an administrator and guardian under the Act. Additionally, the court clarified that the guardian could not initiate divorce proceedings on behalf of LWL without explicit consent from LWL.

Orders

Orders of the court

An administrator is appointed

A guardian is appointed

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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