NP - [2024] WASAT 53 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   NP [2024] WASAT 53
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   20 MAY 2024
DELIVERED          :   20 MAY 2024
PUBLISHED           :   27 MAY 2024
FILE NO/S:   GAA 1171 of 2024

NP
Represented Person
SP
Applicant

Catchwords:

Review of guardianship and administration orders – Reasons to allow review – Family conflict – Conflict of interest – Threat of legal proceedings against represented person – Specific performance of alleged agreement reached with represented person – Transactions may be set aside – Applicant for review unsuitable for appointment – Public Trustee reappointed – Public Advocate reappointed – Private medical treatment guardian reappointed – Duration of orders five years

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(6), s 4(7), s 43(1)(b), s 43(1)(c), s 44(1), s 44(1)(a), s 44(1)(b), s 44(1)(c), s 44(2)(b), s 44(2)(d), s 44(5), s 64(1)(a), s 61(1)(b), s 68(1), s 68(1)(c), s 68(1)(d), s 68(3)(a), s 68(3)(b), s 68(3)(c), s 82(1), s 82(3), s 84, s 87

Result:

Public Trustee reappointed plenary administrator
Public Advocate reappointed as limited guardian
Private guardian appointed for medical treatment function

Category: B

Representation:

Counsel:

Represented Person	:	In Person
Applicant	:	In Person

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

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

Briginshaw v Briginshaw (1938) 60 CLR 336
GC and PC [2014] WASAT 10
LP [2020] WASAT 25
RK [2022] WASAT 112

REASONS FOR DECISION OF THE TRIBUNAL:

(These are the reasons for decision delivered on 20 May 2024 and have been taken from the transcript, edited only to anonymise parties, to add relevant authorities, legislation and headings, correct grammatical errors and some infelicity of expression, without variation to the substance thereof.)

Introduction

NP will turn 96 years old on 1 June 2024. She has been living in residential aged care since December 2023 (Aged Care), with the placement starting as respite and becoming permanent in February 2024. NP has three sons:
(a)SP, who is the applicant in this matter. SP is seeking a review of the current guardianship and administration orders dated 29 September 2023 (Orders);
(b)PP who is her current medical treatment guardian; and
(c)TP.
In addition to appointing PP as the medical treatment guardian, the Orders appointed:
(a)the Office of the Public Trustee (Public Trustee) as NP's plenary administrator; and
(b)the Office of the Public Advocate (Public Advocate) as NP's limited guardian with the functions of accommodation, services and contact.
The Orders were due to be reviewed by 29 September 2024.
All NP's sons attended the hearing of 20 May 2024 (Hearing) in person. NP also has a daughter who has health issues and has not attended any of the hearings at the Tribunal.[1] NP attended the Hearing in person and was assisted by a translator in her first language. Also attending in person were SP's son MP, SP's partner MM and NP's delegated guardian (

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 NP

Details

AGLC: NP [2024] WASAT 53
Case: [2024] WASAT 53
Decision Date: 27 MAY 2024

CaseChat Overview and Summary

In the matter of NP, the court considered the review of guardianship and administration orders concerning an individual. The dispute involved the appointment of a guardian and administrator for the individual, with concerns raised about the suitability of the current representative and the presence of family conflict. The court was required to decide whether the existing orders should be reviewed, considering issues such as conflicts of interest, threats of legal proceedings, and the appropriateness of specific performance of alleged agreements. The applicant for review, who was also the subject of the dispute, was deemed unsuitable for the role, leading to the reappointment of the Public Trustee, Public Advocate, and Private Medical Treatment Guardian. The court concluded that the orders should be reviewed and set aside specific performance of agreements, while the duration of the new orders was set for five years.

The legal issues before the court involved the appropriateness of the current guardian and administrator, the presence of family conflict, and the potential threat of legal proceedings against the represented person. The court had to determine whether there were valid reasons to review the existing orders and whether the applicant for review was suitable to continue in their role. Additionally, the court considered the implications of alleged agreements reached between the applicant and the represented person, and whether these agreements should be specifically enforced. The court's task was to balance the interests of the represented person with the potential conflicts and threats presented by the applicant.

The court's reasoning focused on the unsuitability of the applicant for review due to the conflict of interest and the threat of legal proceedings against the represented person. The court found that the applicant's actions demonstrated a lack of impartiality and a potential conflict with the represented person's best interests. Furthermore, the court held that the threats of legal action against the represented person were a significant concern that undermined the applicant's suitability for the role. In light of these findings, the court concluded that the existing orders should be reviewed and set aside specific performance of agreements. The reappointment of the Public Trustee, Public Advocate, and Private Medical Treatment Guardian was deemed necessary to ensure the represented person's interests were properly protected. The court ordered the duration of the new orders to be five years, providing a suitable period for review and potential further adjustments.

Orders