MW - [2022] WASAT 107

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   MW [2022] WASAT 107
MEMBER:   MS F CHILD, MEMBER
HEARD:   2 SEPTEMBER 2022 AND 6 OCTOBER 2022
DELIVERED          :   1 NOVEMBER 2022
PUBLISHED           :   1 DECEMBER 2022
FILE NO/S:   GAA 3237 of 2022

MW
Represented Person
Bentley Health Service
Applicant

Catchwords:

Guardianship and administration - Application for the appointment of guardian and administrator - Whether proposed represented person is unable to look after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person or in need of oversight, care or control in the interests of her own health and safety - Whether proposed represented person is unable by reason of a mental disability to make reasonable judgments about her estate - Diagnosis of psychiatric condition of chronic schizophrenia or chronic delusional disorder and short-term memory impairment - Involuntary inpatient under Mental Health Act 2014 (WA) - Twenty year history of transience or chronic homelessness - Wishes of represented person to remain transient - Incapacity of represented person to make judgments about risk - Whether in need of guardian and administrator - Whether family members suitable for appointment as guardian - No alternative to appointment of Public Advocate as limited guardian and Public Trustee as plenary administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2), s 40, s 41(1)(iii), s 43(1)(b), s 43(1)(c), s 51(1), s 64(1)(a), s 64(1)(b), s 70(1), s 110H, s110ZD, s 110ZD(3)(b)
Mental Health Act 2014 (WA)
Aged Care Act 1997 (Cth)

Result:

Public Trustee appointed plenary administrator
Public Advocate appointed limited guardian

Category: B

Representation:

Counsel:

Represented Person	:	Mr Versteegen
Applicant	:	N/A

Solicitors:

Represented Person	:	Mental Health Law Centre
Applicant	:	N/A

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

FY [2019] WASAT 118
GC and PC [2014] WASAT 10
MH [2022] WASAT 74
SAL and JGL [2016] WASAT 63

REASONS FOR DECISION OF THE TRIBUNAL:

(The application was heard on 2 September 2022 and 6 October 2022. The decision was delivered on 1 November 2022. The following comprises the reasons delivered orally, subject only to minor editing to anonymise parties, improve clarity of expression and setting out).

Introduction

The Bentley Health Service made an application on 27 August 2022 seeking orders for the appointment of a guardian and administrator of the estate of MW under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act).
The application was first heard on 2 September 2022 with a final hearing on 6 October 2022.
The first hearing in September was adjourned at the request of MW's solicitor Mr Versteegen of the Mental Health Law Centre (MHLC) because MW experiences significant hearing impairment and could not hear what was being said and therefore could not participate in the hearing without hearing aids or hearing augmentation, neither of which was available at the time.
The adjournment also allowed the Tribunal to give notice of the proceeding…

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 MW

Details

AGLC: MW [2022] WASAT 107
Case: [2022] WASAT 107
Decision Date: 1 NOVEMBER 2022

CaseChat Overview and Summary

The applicant, in this case, sought the appointment of a guardian and administrator for a woman who had been diagnosed with a psychiatric condition of chronic schizophrenia or chronic delusional disorder, as well as short-term memory impairment. The woman had been an involuntary inpatient under the Mental Health Act 2014 (WA) and had a twenty-year history of transience or chronic homelessness. The represented person expressed a wish to remain transient, despite her incapacity to make judgments about risk. The court was required to determine whether the woman was unable to look after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, or in need of oversight, care or control in the interests of her own health and safety. The court was also required to determine whether the woman was unable, by reason of a mental disability, to make reasonable judgments about her estate. Additionally, the court had to consider whether the family members were suitable for appointment as guardian and whether there was any alternative to the appointment of the Public Advocate as limited guardian and the Public Trustee as plenary administrator.

The court found that the woman was unable to look after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, and in need of oversight, care or control in the interests of her own health and safety. The woman was also unable, by reason of a mental disability, to make reasonable judgments about her estate. The court further found that the family members were not suitable for appointment as guardian, and there was no alternative to the appointment of the Public Advocate as limited guardian and the Public Trustee as plenary administrator.

Accordingly, the court made an order appointing the Public Advocate as the limited guardian of the woman and the Public Trustee as the plenary administrator of her estate. The order also provided that the Public Advocate was to have the power to give or refuse consent to the woman's admission to a mental health facility or a nursing home, and to give or refuse consent to medical or dental treatment for the woman, including psychiatric treatment, and that the Public Trustee was to have the power to give or refuse consent to the woman's admission to a nursing home, and to give or refuse consent to medical or dental treatment for the woman, including psychiatric treatment.

Orders