MH and HH - [2013] WASAT 59

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MH and HH [2013] WASAT 59

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MS S GILLETT (MEMBER)
MR D AITKEN (MEMBER)

HEARD: 2 APRIL 2013

DELIVERED : 15 MAY 2013

FILE NO/S: GAA 536 of 2013

BETWEEN: MH
Applicant
AND
HH
Represented person

Catchwords:

Guardianship and administration - Review of orders - Capacity - Need for guardian - Lack of insight of existing guardian - Risk to represented person if psychiatric treatment not carefully monitored - Turns on own facts

Legislation:

Guardianship and Administration Act 1990 (WA), s 17A, s 44(2)(a), s 44(2)(b), s 44(2)(d), s 68(3)(a)

Result:

Guardianship order revoked and Public Advocate substituted as guardian
Appointment of Public Trustee confirmed

Summary of Tribunal's decision:

The applicant sought discharge of orders appointing himself as guardian and the Public Trustee as administrator in relation to his son. He contended that the orders were no longer necessary. The Tribunal treated the application as a review under s 17A of the Guardianship and Administration Act 1990 (WA).
In light of the application, an investigator from the Office of the Public Advocate prepared a report which suggested that the existing guardianship order may not be operating in the best interests of the represented person, that there remained a need for the appointment of a guardian, and that consideration may need to be given to the appointment of the Public Advocate as guardian.
The Tribunal considered that the applicant's lack of insight into the complexities of the represented person's psychiatric treatment, and his poor relationship with the represented person's treating team, rendered him unsuitable for continued appointment as guardian, at least in the short term. The Tribunal concluded that there remained a need for appointment of a guardian and that, it was in the represented person's best interests for the Public Advocate to be appointed as guardian, with a review in six months' time.
The appointment of the Public Trustee as administrator was affirmed, although the time for review of that order was shortened to coincide with the earlier review of the guardianship order.

Category: B

Representation:

Counsel:

Applicant: Self represented
Represented person : Self represented

Solicitors:

Applicant: N/A
Represented person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 22 January 2013, following a review of previous guardianship and administration orders, further orders were made appointing the Public Trustee as plenary administrator of the estate of HH, and reappointing HH's father, MH, as plenary guardian. The guardianship order was to be reviewed by 22 July 2013. An order was also made directing the Public Advocate to attend the next hearing in relation to HH, and to investigate and provide a written report to the Tribunal as to whether the guardianship order appointing MH was operating in the best interests of HH, and any other matter that the Public Advocate considered relevant in respect to the health and welfare of HH.

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 and HH

Details

AGLC: MH and HH [2013] WASAT 59
Case: [2013] WASAT 59
Decision Date: 15 MAY 2013

CaseChat Overview and Summary

The case of MH and HH involved a dispute over the continuation of a guardianship and administration order made in respect of a person suffering from a psychiatric condition. The matter was heard in the Supreme Court of New South Wales. The primary concern was whether the individual, referred to as MH, required ongoing guardianship and administration due to their incapacity, and if so, whether the existing guardian, HH, was suitable to continue in that role.

The court had to determine if MH lacked the capacity to manage their affairs due to their psychiatric condition and if a guardian was necessary to safeguard MH's interests. A further issue was whether HH, who had been appointed as the guardian, was appropriately equipped to fulfil the role given their lack of insight into MH's condition and the need for careful monitoring of MH's psychiatric treatment. The court also needed to assess the risk to MH if the guardianship order was not continued.

The court held that MH's condition necessitated ongoing guardianship and administration due to their lack of capacity to manage their affairs. However, the court found that HH's lack of insight into MH's condition and the necessity for closely monitored psychiatric treatment rendered HH unsuitable to continue as the guardian. The court concluded that the risks to MH if HH remained as the guardian outweighed the benefits of continuity in the guardianship arrangement. Consequently, the court ordered that a new guardian be appointed to replace HH.

Orders