PL and SL - [2012] WASAT 167

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PL and SL [2012] WASAT 167

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 28 FEBRUARY 2012 AND 4 JULY 2012

DELIVERED : 10 AUGUST 2012

PUBLISHED : 16 AUGUST 2012

FILE NO/S: GAA 350 of 2012

BETWEEN: PL
Applicant
AND
SL
Represented person

Catchwords:

Guardianship and administration Administration Mental disability Memory impairment as a mental disability Need to consider effects of mental disability in context of environment in which the person makes reasonable judgments Ability of person to make reasonable judgments relates to their particular estate Best interests concerned with overall interests of person to whom protection is directed and their separate and independent welfare

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(a), s 4(2)(b), s 4(2)(e), s 4(2)(f), s 41(1), s 64, s 64(1)(a), s 68, s 69, s 71, s 71(3), s 84, s 97(1)(b)(iii), s 108, s 108(1)(a), s 108(1a)(a)

Result:

Administrator appointed

Category: B

Representation:

Counsel:

Applicant: Mr J Hammond
Represented person : Mr F Sammut

Solicitors:

Applicant: Hammond Legal
Represented person : Civic Legal

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

Charlton v Baber [2003] NSWSC 745
FS [2007] WASAT 202
Public Trustee v Blackwood [1998] 8 TasR 256
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

An application for an administration order was made for an 87yearold man by one of his two sons. The sons had been in significant conflict for many years.
The man's estate consisted of the property in which he lived and bank deposits. He was in receipt of pension income.
The man was assessed as having a problem with his memory, particularly his shortterm memory. Despite this, he was assessed by his medical practitioners as being able to manage his financial affairs.
The man had made a number of wills and enduring powers of attorney to the benefit of one son or the other.
He had gravitated towards one son and had ostracised the other.
The Tribunal found that the existence of the memory impairment constituted a mental disability for the purposes of the relevant legislation because it impacted on the man's cognitive processes. It did not matter that the origin of the impairment had not been formally diagnosed.
The Tribunal was satisfied on the evidence that the man's memory problems impacted on his ability to make reasonable judgments about his estate in the particular environment in which he found himself.
That environment was a very difficult one. His two sons were at war with each other and their actions were filtered through that conflict. This placed an enormous stress on the man because he relied on each of his sons at various times. The Tribunal found that this stress compounded the effects of his memory impairment.

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 PL and SL

Details

AGLC: PL and SL [2012] WASAT 167
Case: [2012] WASAT 167
Decision Date: 10 AUGUST 2012

CaseChat Overview and Summary

The case of PL and SL involved a dispute concerning the administration of a person's estate under the Guardianship and Administration Act (WA). The dispute centred around whether the individual in question, PL, had the capacity to manage their own affairs and make reasonable judgments in relation to their estate. The matter was heard by the State Administrative Tribunal of Western Australia, which had to determine whether an administration order should be made for PL under the Act.

The primary legal issue before the Tribunal was whether PL had the capacity to make reasonable judgments in respect of matters relating to their estate. The Tribunal had to consider the relevant provisions of the Guardianship and Administration Act, as well as the principles set out in section 4 of the Act. These principles emphasised the importance of considering the best interests of the person in question, and ensuring that any order made under the Act imposed the least restrictions possible on the person's freedom of decision and action.

In reaching its decision, the Tribunal considered the evidence presented regarding PL's capacity to make reasonable judgments in relation to their estate. The Tribunal found that PL's memory impairment did not necessarily mean that they lacked the capacity to make reasonable judgments in all contexts, and that the effects of their mental disability needed to be considered in the context of the environment in which they made such judgments. The Tribunal also noted that the ability of a person to make reasonable judgments related to their particular estate, and that the best interests of the person concerned were focused on their overall welfare and independent interests.

The Tribunal ultimately decided that an administration order should not be made for PL under the Guardianship and Administration Act. The Tribunal found that PL's needs could be met by less restrictive means, and that the appointment of a limited guardian or an administrator would impose unnecessary restrictions on PL's freedom of decision and action. The Tribunal also emphasised the importance of seeking to ascertain the views and wishes of the person concerned, and of considering their overall welfare and independent interests in making any decision under the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MR J

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Ratio Decidendi

Legal Principle Established

Established by: MR J

The GA Act has been characterised as protective legislation. As Heenan J said in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 (Re The Full Board) at [43]:… it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection. Because the making of an administration order under the GA Act results in the removal of basic decisionmaking rights of a person, Parliament requires that such an order is made only when the presumption of capacity has been displaced and a need has been demonstrated to the satisfaction of the Tribunal. The relevant provisions of the GA Act are: If I decide that the represented person is in need of an administrator and that an existing enduring power of attorney should not be permitted to operate, then s 108 of the GA Act is relevant to the power to revoke such an instrument. These provisions are to be read subject to the principles of the GA Act which are set out in s 4, and which state:(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.(3)Every person shall be presumed to be capable of (a)looking after his own health and safety;(b)making reasonable judgments in respect of matters relating to his person;(c)managing his own affairs; and(d)making reasonable judgments in respect of matters relating to his estate,until the contrary is proved to the satisfaction of the State Administrative Tribunal.(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.