MM [2016] WASAT 62

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 62
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:894/2016	Heard:	26 FEBRUARY AND 28 APRIL 2016
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	20/05/16
No of pages:	17	Judgment Part:	1 of 1
Result:	Guardian and administrator appointed
Category:	B
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Parties:	MM
Catchwords:	Guardianship and administration Capacity Ability to make reasonable judgments Cerebral palsy Intellectual disability Allegations of neglect and abuse made by represented person Claims that the allegations are fabrications Statements and allegations made by represented person should not be dismissed as baseless Allegations are evidence of represented person's serious concerns regarding his circumstances about which he is powerless to do anything Guardian to be appointed to deal with problems faced by represented person and to make decisions in his best interests Administrator appointed Guardian and administrator need to be compatible
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 68(3)(a), s 69, s 90, s 110ZD
Case References:	Nil
Summary	MM is a 31yearold man with significant disabilities.,He had been living with his mother, KM, and his stepfather, BM, in a home modified for his needs.,In February 2016, applications for guardianship and administration orders were made in respect of MM by the Disability Services Commission. The applicant reported allegations of neglect and abuse in the home.,Over a period of about 12 months, MM had reported to care and support staff and to his general practitioner that he was frightened of BM, that he had been hit by BM, and that he wanted to leave home.,MM would typically retract the allegations at a later time.,The allegations were disputed by KM and BM who said that MM was in the habit of fabricating events when he could not get his own way. ,The applications were heard urgently on 26 February 2016 and the Tribunal appointed the Public Advocate as MM's guardian to make decisions about his temporary accommodation and with whom he should have contact. The order was set for review in two months. The application for an administration order was adjourned.,On 28 April 2016, the Tribunal heard the review of the guardianship order and the adjourned administration application.,The Tribunal was satisfied that MM had an intellectual disability which impaired his capacity to make reasonable judgments concerning his personal and financial affairs. He was unable to develop an informed position about major personal matters, such as his future accommodation, because his cognitive deficits did not allow him to fully understand the consequences of a decision that he would like to make.,The Tribunal found that the intellectual disability was at times masked by MM's strong views on matters that were important to him.,There was no suggestion that MM was unaware of his environment, and there was no evidence to indicate that he was unable to give an account of how the…

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: MM [2016] WASAT 62
Case: [2016] WASAT 62
Decision Date: 20 MAY 2016

CaseChat Overview and Summary

The matter involved a person, MM, who suffers from cerebral palsy and intellectual disability. MM brought an application to the court seeking a guardian and administrator to manage their affairs. The application arose from allegations of neglect and abuse made by MM, which were contested by family members. The court was required to determine whether MM had the capacity to make reasonable judgments and whether a guardian and administrator should be appointed. The court also needed to consider the compatibility of the proposed guardian and administrator.

The court found that MM's allegations, while contested, were not to be dismissed outright. The court recognised that MM's statements and allegations were evidence of their serious concerns regarding their circumstances, about which they were powerless to do anything. The court held that MM did not have the capacity to make reasonable judgments and that a guardian and administrator should be appointed to deal with the problems faced by MM and to make decisions in their best interests. The court also noted the importance of ensuring that the guardian and administrator were compatible and would act in MM's best interests.

The court appointed a guardian and administrator to manage MM's affairs. The court emphasised the importance of the guardian and administrator working together to ensure that MM's best interests were protected. The court also noted the need for regular reporting and review to ensure that MM's circumstances did not change and that the guardian and administrator continued to act in their best interests. The court's decision provided MM with much-needed support and protection, ensuring that their rights and interests were protected.

Orders

Orders of the court

Guardian and administrator 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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