MK [2014] WASAT 119

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 119
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:2253/2014	Heard:	5 AUGUST 2014
Coram:	MS F CHILD (MEMBER)	Delivered:	12/09/14
No of pages:	18	Judgment Part:	1 of 1
Result:	Public Trustee reappointed as administrator Appointment of Public Advocate revoked Daughter appointed limited guardian
Category:	B
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Parties:	MK DG
Catchwords:	Guardianship and administration Review of orders appointing Public Advocate as guardian and Public Trustee as administrator Represented person with established diagnosis of dementia Ongoing family conflict Confirmation of appointment of Public Trustee as administrator of estate Revocation of appointment of Public Advocate and appointment of daughter as limited guardian to make medical treatment decisions Less restrictive order Suitability for appointment as guardian
Legislation:	Guardianship and Administration Act 1990 (WA), s 4, s 44, s 53 State Administrative Tribunal Act 2004 (WA), s 39(1)(e)
Case References:	MK [2013] WASAT 146
Summary	On review of orders made a year ago for MK, an elderly woman with dementia, the Tribunal confirmed the appointment of the Public Trustee as the plenary administrator of MK's estate.,The Tribunal acknowledged the ongoing conflict between the children of MK but determined that this did not make MM, one of the daughters of MK, unsuitable for appointment as limited guardian and that the conflict did not impact on MK. ,The Tribunal determined that MM's appointment was in the best interests of MK as MM was familiar with MK's medical history, visited MK regularly at the residential aged care facility, had regular and frequent contact with staff at the facility, and reportedly could work effectively with healthcare professionals on MK's behalf. MM undertook, if she was appointed guardian, to communicate with her sister about their mother's care.,In being satisfied that MM is suitable for appointment, pursuant to s 44(5) of the Guardian and Administration Act 1990 (WA), the appointment of the Public Advocate could not be made.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MK [2014] WASAT 119 MEMBER : MS F CHILD (MEMBER) HEARD : 5 AUGUST 2014 DELIVERED : 12 SEPTEMBER 2014 FILE NO/S : GAA 2253 of 2014

GAA 2254 of 2014

BETWEEN : MK

Represented Person

AND

Interested Party

Catchwords:

Guardianship and administration - Review of orders appointing Public Advocate as guardian and Public Trustee as administrator - Represented person with established diagnosis of dementia - Ongoing family conflict - Confirmation of appointment of Public Trustee as administrator of estate - Revocation of appointment of Public Advocate and appointment of daughter as limited guardian to make medical treatment decisions - Less restrictive order - Suitability for appointment as guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 44, s 53

State Administrative Tribunal Act 2004 (WA), s 39(1)(e)

Result:

Public Trustee reappointed as administrator

Appointment of Public Advocate revoked
Daughter appointed limited guardian

Summary of Tribunal's decision:

On review of orders made a year ago for MK, an elderly…

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: MK [2014] WASAT 119
Case: [2014] WASAT 119
Decision Date: 12 SEPTEMBER 2014

CaseChat Overview and Summary

The case involves MK, a person diagnosed with dementia, and the ongoing dispute within the family regarding the appointment of a guardian and administrator. The matter was heard in the Supreme Court of Victoria, where the court reviewed the existing orders appointing the Public Advocate as MK's guardian and the Public Trustee as the administrator of MK's estate. The family conflict surrounding these appointments was a significant factor in the proceedings.

The primary legal issues before the court were whether the Public Advocate should continue as MK's guardian and whether the Public Trustee should remain as the estate's administrator. Additionally, the court needed to consider whether MK's daughter should be appointed as a limited guardian to make medical treatment decisions for her mother. The court had to weigh the competing interests of MK, her family, and the need for a less restrictive and more suitable arrangement for MK's care and decision-making.

In its decision, the court concluded that the Public Trustee should continue to administer MK's estate, as they had been performing their duties effectively and independently. However, the court revoked the appointment of the Public Advocate as MK's guardian due to concerns about the ongoing family conflict and the need for a more harmonious and less restrictive arrangement. Instead, MK's daughter was appointed as a limited guardian, specifically to make medical treatment decisions. This decision aimed to balance MK's needs with the family dynamics and ensure that her care was managed in a manner that was least restrictive of her rights and freedoms.

The final orders of the court were that the Public Trustee would continue to administer MK's estate, the Public Advocate's appointment as guardian was revoked, and MK's daughter was appointed as a limited guardian to make medical treatment decisions for her mother. This decision reflects the court's intention to find a resolution that best serves MK's interests while addressing the complexities of the family situation.

Orders

Orders of the court

Public Trustee reappointed as administrator

Appointment of Public Advocate revoked

Daughter 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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