PUBLIC ADVOCATE and CEF - [2010] WASAT 54

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PUBLIC ADVOCATE and CEF [2010] WASAT 54

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MR J MANSVELD (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

HEARD: 3 DECEMBER 2009

DELIVERED : 19 APRIL 2010

FILE NO/S: GAA 2210 of 2009

BETWEEN: PUBLIC ADVOCATE
Applicant
AND
CEF
Represented Person

Catchwords:

Guardianship - Review of need for continuation of limited guardianship order - Guardian seeking to liaise with persons involved in litigation in which represented person a party - Represented person capable of making reasonable judgments concerning her person - Represented person liable to suffer detrimental health effects in certain situations - Whether open to appoint guardian - Need for guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 3

Result:

Limited guardianship order made

Category: A

Representation:

Counsel:

Applicant: Ms B Turner and Ms D Fallon (Agents)
Represented Person : RCW (Limited Guardian)

Solicitors:

Applicant: Self-represented
Represented Person : Self-represented

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

LGW [2004] WAGAB 4

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Public Advocate sought a review of an existing guardianship order which was not otherwise due for review until June 2011. The Public Advocate questioned the ongoing need for a limited guardianship order. The order was limited to acting as next friend or guardian ad litem in relation to legal proceedings except proceedings relating to the estate of the represented person.
The Tribunal reviewed the background to the order, and the available medical evidence as to the represented person's capacity and mental health. It reached the conclusion that the represented person was liable to suffer adverse effects on her health if required to deal personally with others in connection with the multiplicity of the Court actions in which she was involved. It determined that, in the interests of her health, she was in need of oversight, care and control in relation to liaising with others concerning the litigation and that there was a need for a guardian to be appointed for that purpose. The Tribunal considered that the present guardian was an appropriate person to act as limited guardian, and varied the terms of the existing order to enable the guardian to liaise with others on behalf of the represented person in relation to the litigation in which the represented person was involved.

The application

The Public Advocate brings this application under s 86(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) for a review of an order for limited guardianship made by the Tribunal on 3 October 2007 in respect of CEF. The order appointed RCW as limited guardian in respect of CEF with the following functions:
(a)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;
(b)as the guardian ad litem of the represented person, defend or settle any legal proceedings taken…

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: PUBLIC ADVOCATE and CEF [2010] WASAT 54
Case: [2010] WASAT 54
Decision Date: 19 APRIL 2010

CaseChat Overview and Summary

The matter before the court involved the Public Advocate and CEF, with the central issue being a review of the need for the continuation of a limited guardianship order. The guardian sought to liaise with individuals involved in litigation where CEF, the represented person, was a party. The represented person was found to be capable of making reasonable judgments concerning her person, but she was also liable to suffer detrimental health effects in certain situations. The court needed to determine whether it was open to appoint a guardian and assess the necessity of the guardian's role.

The court examined whether the represented person's capacity to make reasonable judgments regarding her person was sufficient to warrant the continuation of the limited guardianship order. The represented person's capability in this regard was balanced against the risk of detrimental health effects in specific circumstances. The court's role was to weigh these factors and decide if appointing a guardian was necessary to protect CEF's interests.

Upon reviewing the evidence and arguments presented, the court concluded that the represented person's ability to make reasonable judgments concerning her person was sufficient to warrant the continuation of the limited guardianship order. The court determined that the risk of detrimental health effects, while concerning, did not necessitate the ongoing role of a guardian. Consequently, the court decided against appointing a guardian and ordered the review of the need for the continuation of the limited guardianship order to be dismissed.

Orders