MD - [2012] WASAT 145

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MD [2012] WASAT 145

MEMBER: MR M ALLEN (SENIOR MEMBER)

HEARD: 22 MAY 2012

DELIVERED : 16 JULY 2012

FILE NO/S: GAA 1435 of 2012
GAA 1246 of 2012

BETWEEN: EG
First Applicant
BD
Second Applicant
AND
MD
Represented Person

Catchwords:

Guardianship and administration Review of administration order and application for guardianship order Likely breakdown of represented person's marriage and wife unwilling to continue to act as administrator or be appointed as guardian Need for independent administrator Public Trustee appointed as plenary administrator Need for a guardian in relation to decisions about accommodation, treatment and rehabilitation Whether represented person's parents or the Public Advocate should be appointed as guardian Consideration of whether parents are suitable to be appointed because of their emotional involvement and whether independent person would be better able to make decisions Conclusion that parents are suitable for appointment as joint guardians

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43, s 44, s 64, s 84, s 86

Result:

Administration order revoked and new order made
Guardianship order made

Category: B

Representation:

Counsel:

First Applicant              :     N/A
Second Applicant          :     N/A
Represented Person       :     N/A

Solicitors:

First Applicant              :     N/A
Second Applicant          :     N/A
Represented Person       :     N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On the application of a staff member of the State Head Injuries Unit, the Tribunal reviewed an administration order, first made in 2009 and confirmed in 2011, by which KD, the wife of MD, the represented person, was appointed his plenary administrator. The Tribunal also considered an application by MD's father, BD, for the appointment of BD and PD, MD's mother, to be appointed as his joint guardians. MD had received major head injuries in 2009 as a result of an assault, and was left with permanent and substantial cognitive and physical impairments.
There was no dispute that MD was a person for whom both guardianship and administration orders could and should be made. As a result of the breakdown of the marriage between MD and KD, and because of difficulties that KD had experienced in carrying out the duties of administrator, KD did not wish to continue as administrator, and all parties agreed that the Public Trustee should be appointed in her place. The Tribunal made such an order.
On the question of who should be appointed as MD's guardian, the State Head Injuries Unit (supported by the Public Advocate) opposed the appointment of BD and PD on the grounds that they did not fully appreciate MD's situation and were too emotionally involved in the situation to make objective decisions about MD's welfare. They proposed the appointment of the Public Advocate as guardian.
The Tribunal considered that MD and PD were suitable to be appointed as MD's guardians. They had a sufficiently realistic…

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

AGLC: MD [2012] WASAT 145
Case: [2012] WASAT 145
Decision Date: 16 JULY 2012

CaseChat Overview and Summary

In this matter, MD sought a review of an administration order and an application for a guardianship order in the Supreme Court of Queensland. The represented person, who suffered from significant disabilities, was previously under the administration of his wife. However, the wife was unwilling to continue in this capacity due to the likely breakdown of their marriage. The represented person required an independent administrator and a guardian to make decisions regarding his accommodation, treatment, and rehabilitation.

The court had to determine the appropriate administrator and guardian for the represented person. It was necessary to consider whether the represented person's parents or the Public Advocate should be appointed as guardian, given the represented person's parents' emotional involvement and potential bias. The court also had to assess if an independent person would be better suited to make decisions for the represented person.

The court concluded that the represented person's parents were suitable to be appointed as joint guardians. The court found that the parents' emotional involvement would not prevent them from making decisions in the best interest of their son, and they were better positioned to make decisions regarding the represented person's accommodation, treatment, and rehabilitation than an independent person. The Public Trustee was appointed as the plenary administrator, and the represented person's parents were appointed as joint guardians.

Orders