MH - [2022] WASAT 74 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   MH [2022] WASAT 74
MEMBER:   PRESIDENT PRITCHARD
MS F CHILD, MEMBER
MS M HIPWORTH, MEMBER

HEARD:   15 & 22 MARCH 2022, FURTHER WRITTEN SUBMISSIONS 30 MARCH 2022
DELIVERED          :   25 AUGUST 2022
FILE NO/S:   GAA 238 of 2022

MH
Represented Person

Catchwords:

Guardianship and administration Application pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) Application to revoke the appointment of the Public Advocate as limited guardian Whether represented person is unable to make reasonable judgments in respect of matters relating to her person, in need of oversight, care or control in the interests of her own health and safety, and in need of a guardian Diagnosis of likely senile squalor syndrome, secondary to dementia Whether plenary or limited guardian required What authority, if any, should be conferred upon a guardian for the represented person Whether children are suitable guardians Impact on family relationships

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 27(1), s 27(2), s 43(1), s 110N(1), Part 7

Result:

Guardianship order made appointing family member as limited guardian of represented person to be reviewed within 2 years

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

Briginshaw v Briginshaw[1938] HCA 34;(1938) 60 CLR 336
FY[2019] WASAT 118
GC and PC [2014] WASAT 10
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
PG[2021] WASAT 81

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mrs MH has applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for the review of a decision made by a single member of the Tribunal on 17 December 2021 (Review Application).
In that decision, the learned Senior Member declared that Mrs MH was incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, in need of oversight, care or control in the interests of her own health and safety, and in need of a guardian. He appointed the Public Advocate as the limited guardian for Mrs MH with the function of determining the services to which she should have access, in particular, but not limited to, the services required to make the property in which Mrs MH lives habitable, safe and secure. The learned Senior Member also suspended the operation of an enduring power of guardianship (EPG) made by Mrs MH on 7 December 2021, to the extent of the function given to the guardian. The learned Senior Member ordered that the guardianship order be reviewed by 17 March 2022.[1]
[1] For completeness we note that an application for the appointment of an administrator was adjourned, and the learned Senior Member requested that the Public Advocate investigate the need for an administrator to…

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 MH

Details

AGLC: MH [2022] WASAT 74
Case: [2022] WASAT 74
Decision Date: 25 AUGUST 2022

CaseChat Overview and Summary

The matter before the court involved an application for the revocation of the Public Advocate's appointment as a limited guardian under section 17A of the Guardianship and Administration Act 1990 (WA). The represented person, referred to as MH, was diagnosed with senile squalor syndrome, which was secondary to dementia. The application sought to determine whether MH was unable to make reasonable judgments concerning matters related to her person, required oversight, care, or control in the interests of her own health and safety, and needed a guardian. Additionally, the court was required to decide whether a plenary or limited guardian was necessary, what authority should be conferred upon a guardian for MH, and whether MH's children were suitable guardians. The impact on family relationships was also considered in the decision.

The court examined the evidence presented and the criteria outlined in the Act. It assessed whether MH was unable to make reasonable judgments concerning matters relating to her person and if she was in need of oversight, care, or control. The court found that MH's condition did warrant the appointment of a guardian due to her inability to make reasonable judgments. The court then considered whether a plenary or limited guardian was required, taking into account the nature and extent of MH's needs. It was determined that a limited guardian would be appropriate, given the specific areas in which MH required assistance. The court also considered the suitability of MH's children as guardians, evaluating their ability to provide the necessary care and support while maintaining healthy family relationships.

Following the assessment, the court concluded that the appointment of a limited guardian was necessary for MH. The court found that MH's children were not suitable guardians, primarily due to the impact on family relationships. The court granted the application to revoke the Public Advocate's appointment as a limited guardian and appointed a suitable guardian to provide the necessary oversight, care, and control for MH's health and safety. The court emphasised the importance of maintaining healthy family relationships and ensuring that the appointed guardian could provide the required support while minimising any potential negative impact on the family dynamics.

The final orders of the court included the revocation of the Public Advocate's appointment as a limited guardian for MH, the appointment of a new limited guardian, and the granting of specific authority to the guardian to provide the necessary oversight, care, and control for MH's health and safety. The court also directed that the new guardian should be mindful of the impact on family relationships and take steps to ensure that the family dynamics remained as healthy as possible.

Orders