MW and SRB - [2011] WASAT 101

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MW and SRB [2011] WASAT 101

MEMBER: MS F CHILD (MEMBER)

HEARD: 11 MARCH 2011

DELIVERED : 5 JULY 2011

FILE NO/S: GAA 375 of 2011

BETWEEN: MW
Applicant
AND
SRB
Represented person

Catchwords:

Guardianship and administration Application for review of guardianship order Represented person with mild intellectual disability and chronic health problems Resident in a nursing home No known family Proposed appointment of a private guardian in substitution of the Public Advocate Conflict between the proposed guardian and the primary service provider Wishes of the represented person Continuing need for the appointment of the Public Advocate

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(f), s 43, s 43(1)(b), s 43(1)(c), s 44, s 110ZD, s 110ZD(3)(c)(ii)
State Administrative Tribunal Act 2004 (WA), s 77

Result:

Public Advocate confirmed as limited guardian

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented person : N/A

Solicitors:

Applicant: Self-represented
Represented person : N/A

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

LM and MM [2010] WASAT 110

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On review of a guardianship order, the Tribunal confirmed the appointment of the Public Advocate as limited guardian for a woman with a mild intellectual disability who is resident in a nursing home.
A nurse, a former employee of the nursing home and friend of the woman, sought review of the guardianship order and proposed herself as the guardian in substitution of the Public Advocate.
The Tribunal accepted that the nurse was committed to the represented person and would act in her best interests if appointed the guardian but decided that the Public Advocate should be confirmed as the guardian because of the conflict between the proposed guardian and some staff and the proprietor of the nursing home where the represented person lives. The Tribunal found that the reported conflict between some senior staff and the nursing home proprietor and the proposed guardian might impact in a negative way on the represented person. The conflict and the represented person's own concerns about the proposed change of guardian were central to the decision to continue the appointment of the Public Advocate as guardian.
In the circumstances, it was not in the best interests of the represented person that the Public Advocate's appointment be revoked.

Current review

These reasons relate to a decision of the Tribunal on review of a guardianship order dated 25 June 2010 by which the Public Advocate was appointed limited guardian of the represented person with the functions to consent to any treatment or health care on her behalf and to determine the services to which the represented person should have access.
At the conclusion of the review the Public Advocate's appointment was confirmed as the limited guardian for a further period of 12 months.
The review of the guardianship order followed an application for leave to seek review of…

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

Case: [2011] WASAT 101
Decision Date: 5 JULY 2011

CaseChat Overview and Summary

In the case of MW and SRB, MW, an individual with a mild intellectual disability and chronic health issues, who resides in a nursing home and has no known family, was the subject of a guardianship order. The dispute arose when a proposed private guardian, who had a conflict of interest with the primary service provider for MW, sought to be appointed in substitution of the Public Advocate, who was currently acting as MW’s guardian. The court was tasked with deciding whether it was in MW's best interests to have the proposed private guardian appointed instead of the Public Advocate.

The primary legal issue before the court was to determine whether the appointment of the proposed private guardian would be in MW's best interests, given the existing guardianship by the Public Advocate, the conflict of interest with the primary service provider, and MW’s wishes. The court needed to weigh these factors against the benefits of continuity and stability provided by the current arrangement.

The court found that the appointment of the proposed private guardian was not in MW's best interests. The judge considered the conflict of interest and the potential disruption to MW’s care, as well as MW’s existing relationship with the Public Advocate and the service provider. The court emphasised the importance of stability and continuity in the care of individuals with disabilities, and concluded that these factors outweighed any potential benefits of appointing a private guardian. The court upheld the existing guardianship by the Public Advocate.

The final orders of the court were that the application for the appointment of a private guardian be dismissed, and that the Public Advocate continue in their role as MW's guardian. The court’s decision underscored the importance of careful consideration of the represented person’s best interests, particularly in cases involving individuals with disabilities.

Orders