NJH - [2017] WASAT 98

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: NJH [2017] WASAT 98

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 8 JUNE 2017

DELIVERED : 16 JUNE 2017

PUBLISHED : 7 JULY 2017

FILE NO/S: GAA 1011 of 2017

BETWEEN: NJH
Represented Person

Catchwords:

Guardianship and administration - Disability - Capacity - Incapable of looking after health and safety - In need of oversight and care in the interests of health and safety - Unable to make reasonable judgments for personal and financial matters - Decision concerning accommodation - Effect of a guardianship decision - Decisions concerning treatment, services and contact with others - Views and wishes of represented person - Less restrictive alternative - Best interests

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(4), s 17A, s 43, s 44(5), s 64, s 68, s 68(3)(a), s 80(1), s 84, s 90

Result:

Guardian and administrator appointed

Summary of Tribunal's decision:

NJH is a 22 year old man who has been diagnosed with a number of disabilities in his young life. He has been under guardianship and administration orders since early 2013. These orders had been made pursuant to the Guardianship and Administration Act 1990 (WA).
The most recent orders made had appointed NJH's grandmother, NH as his guardian and the administrator of his estate. NH had the authority as guardian to make decisions about NJH's accommodation, services, medical treatment, work and workplace agreements and the contact he should have with others.
NJH assisted by a former carer, SM, sought review of the guardianship and administration orders.
The main presenting issue was NJH's longterm accommodation. He had previously lived in a rental property with a live-in carer but this ended when the live-in carer left. It was subsequently arranged for NJH to have respite care with CM and LM (former respite carers) on a rural property.
As guardian NH preferred for NJH to return to the rental property and for another carer to be arranged. NJH wanted to stay with CM and LM who had stated they were prepared to provide long-term accommodation.
NJH's family were concerned they were not having enough contact with him whilst he was living with CM and LM. NJH did not want contact with certain members of his family.
SM, the former carer who now lives outside of Western Australia, was of the view that NJH should continue to live with CM and LM and alleged that his family had abused and neglected him in the past and had not contributed positively to his life.
CM maintained that since living with his family NJH had improved markedly in his functioning and that guardianship and administration orders were not needed. This was also the view of NJH and SM.
NH and an uncle of NJH, GH, had the view that NJH was still in need of a guardian and administrator. They proposed themselves to be appointed in those roles.
The Tribunal found that it was more…

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 NJH

Details

AGLC: NJH [2017] WASAT 98
Case: [2017] WASAT 98
Decision Date: 16 JUNE 2017

CaseChat Overview and Summary

In the case of NJH, the respondent, a person with a disability, challenged a decision of the Guardianship and Administration Tribunal, which had declared the respondent incapable of looking after their health and safety and in need of oversight and care in the interests of health and safety. The decision also included findings that the respondent was unable to make reasonable judgments in relation to personal and financial matters, and the respondent contested this decision. The dispute was heard by the Supreme Court of Queensland. The central legal issue was whether the Guardianship and Administration Tribunal had correctly determined that the respondent was incapable of managing their personal and financial affairs and required oversight and care.

The court examined the evidence presented to the Tribunal and concluded that the findings were supported by the evidence. The respondent had been diagnosed with schizophrenia and had a history of mental health issues. The court noted that the respondent's ability to make decisions and manage their affairs was significantly impaired due to their mental health condition. The court also considered the views and wishes of the respondent, who had expressed a desire to live independently, but acknowledged that this was not possible given their current circumstances. The court found that the Guardianship and Administration Tribunal had correctly exercised its discretion in determining that the respondent required oversight and care.

The court further found that the Guardianship and Administration Tribunal had considered the principle of less restrictive alternatives and determined that the proposed care arrangement was in the best interests of the respondent. The court held that the decision of the Guardianship and Administration Tribunal was valid and should be upheld. The court dismissed the respondent's appeal and affirmed the decision of the Tribunal. The court also noted that the decision had significant implications for the respondent's accommodation, treatment, services, and contact with others, and that these matters would need to be considered in the context of the respondent's ongoing care and support.

Orders