PN - [2008] WASAT 309

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PN [2008] WASAT 309

MEMBER: MS J TOOHEY (SENIOR MEMBER)
MS F CHILD (MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)

HEARD: 10 SEPTEMBER 2008

DELIVERED : 10 DECEMBER 2008

FILE NO/S: GAA 680 of 2008

BETWEEN: PN
Represented Person

Catchwords:

Administration Represented person resident in accommodation managed by Disability Services Commission Finances managed by Disability Services Commission Internal and external procedures and controls Whether informal arrangement or administration order in best interests of represented person Relevant considerations Appointment of Public Trustee as plenary administrator in best interests in all the circumstances

Legislation:

Disability Services Act 1993 (WA)
Financial Management Act 2006 (WA)
Guardianship and Administration Act 1990 (WA), s 4, s 40, s 64, s 64(1), s 77(1), s 77(2)
State Administrative Tribunal Act 2004 (WA), s 78(1)

Result:

Public Trustee appointed plenary administrator for 12 months

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

PN [2008] WASAT 158
PN [2008] WASAT 32

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Public Advocate asked the Tribunal to appoint an administrator for PN, a 31‑year‑old man with an intellectual disability who lived in accommodation managed by the Disability Services Commission and whose financial affairs were managed by the Disability Services Commission.
The Disability Services Commission provided the Tribunal with extensive information about management of residents' finances, including about internal and external auditing procedures and recent changes to residents' bank accounts which enabled them to earn interest on their funds.
The Tribunal acknowledged the accountability measures implemented by the Disability Services Commission but considered that PN's best interests were served by the appointment of an administrator who was independent of his carers. Factors the Tribunal took into account included that PN had a relatively large bank balance; there was the potential for conflict of interest in decisions about matters such as holidays and overseas travel; and PN had no family who might provide some independent scrutiny of the informal management of his estate.
The Tribunal appointed the Public Trustee plenary administrator for PN. The Disability Services Commission indicated it would consider ways of dealing with potential conflicts of interest and so the Tribunal made the appointment reviewable in 12 months.

Background

PN is a 31‑year‑old man with an intellectual disability who lives in supported accommodation managed by the Disability Services Commission of Western Australia (Commission). His family has not contacted him for many years. He was brought up by foster parents who no longer have contact with him.
The Public Advocate was appointed limited guardian for PN in August 1997. In January 2008, the Public Advocate's appointment was revoked and ST, a community guardian recruited by the Public Advocate, was appointed in her place.
ST's initial appointment was as limited guardian with authority to consent to treatment within the meaning of the Guardianship and Administration Act…

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

AGLC: PN [2008] WASAT 309
Case: [2008] WASAT 309
Decision Date: 10 DECEMBER 2008

CaseChat Overview and Summary

The matter before the court involved the appointment of a plenary administrator for PN, an individual residing in accommodation managed by the Disability Services Commission. The Commission had been managing PN's finances, but due to concerns about the adequacy of internal and external procedures and controls, it sought the appointment of a plenary administrator. The court was tasked with determining whether an informal arrangement or an administration order was in PN's best interests, considering all relevant factors.

The primary legal issue before the court was whether the Public Trustee should be appointed as the plenary administrator of PN's estate under the Guardianship and Administration Act 1990 (WA). The court needed to weigh the appropriateness of different arrangements against the backdrop of PN's best interests. This included evaluating whether the current management of PN's finances by the Disability Services Commission was sufficient or if a more stringent and controlled approach was required. The court also considered the balance between PN's autonomy and the necessity for protective measures.

The court concluded that, in all circumstances, the appointment of the Public Trustee as a plenary administrator was in PN's best interests. The reasoning focused on the necessity for robust financial management and oversight, given the existing concerns about the adequacy of internal and external controls. The court found that the Public Trustee, as a statutory body, would provide the necessary safeguards and professional management that aligned with PN's welfare needs. This decision underscored the importance of ensuring that any administrative arrangement protects the represented person's interests effectively.

The final order of the court was the appointment of the Public Trustee as the plenary administrator of PN's estate, granting the Public Trustee all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA). This order aimed to provide the required financial oversight and protection for PN, ensuring that their interests were safeguarded under the most suitable administrative framework.

Orders

Orders of the court

1. The Public Trustee is appointed plenary administrator of the estate of PN with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MS J

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Ratio Decidendi

Legal Principle Established

Established by: MS J

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