QMW - [2012] WASAT 163

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: QMW [2012] WASAT 163

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

HEARD: 19 JULY 2012

DELIVERED : 19 JULY 2012

PUBLISHED : 9 AUGUST 2012

FILE NO/S: GAA 1694 of 2012
GAA 1696 of 2012

BETWEEN: QMW
Represented Person

Catchwords:

Guardianship and administration Review by Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) of decision to appoint Public Advocate as limited guardian and Public Trustee as plenary administrator Represented person suffering dementia Represented person requires accommodation in longterm care facility - Whether represented person's husband should be appointed guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 17A, s 43, s 44, s 64, s 68(1), s 68(3)

Result:

Appointment of Public Advocate as limited guardian confirmed
Appointment of Public Trustee as plenary administrator confirmed

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

QW [2007] WASAT 23

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

QMW has advanced and progressive Alzheimer's dementia. A single member conducted a review of guardianship and administration orders in respect of QMW. The member made a guardianship order appointing the Public Advocate as limited guardian for QMW and an administration order appointing the Public Trustee as plenary administrator of QMW's estate.
MW, QMW's husband, sought review of these decisions by a Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA).
Following the hearing, the Full Tribunal gave an oral decision in which it dismissed the application for review and confirmed the orders made by the member. The Tribunal considered that the appointment of an independent guardian and an independent administrator is in QMW's best interests, because of ongoing conflict within the family between MW and QMW's daughters about where QMW should live, what external activities she should have access to, and related financial issues. The Tribunal also considered that MW lacks insight into QMW's condition and that his intention, if he had authority to do so, to take QMW out of the nursing home, at least for periods of time, is not in QMW's best interests. However, the Tribunal observed that, given MW's continuing concern about not being able to take QMW on outings, it may be time for a fresh occupational therapist's assessment in relation to that issue.
The Tribunal's reasons, taken from the transcript and edited in minor respects for clarity, were as follows.

Represented person

These are the Tribunal's reasons for decision in relation to proceedings GAA 1694 of 2012 and GAA 1696 of 2012 in relation to QMW, the represented person. QMW is an 88yearold lady who has advanced and progressive Alzheimer's dementia and resides in a nursing home in St James.
The social worker report of JS, dated 21 February 2012, states that the represented person is…

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: QMW [2012] WASAT 163
Case: [2012] WASAT 163
Decision Date: 19 JULY 2012

CaseChat Overview and Summary

The case before the court involved QMW, a represented person who was suffering from dementia, and the decision by the Public Advocate to appoint the Public Advocate as a limited guardian and the Public Trustee as a plenary administrator. QMW's husband sought to be appointed as her guardian, arguing that he was the most appropriate person to make decisions on her behalf, given their long-standing relationship and his understanding of her needs and preferences. The husband's application was heard by the Full Tribunal of the Mental Health Review Tribunal of Western Australia, which exercised its review powers under section 17A of the Guardianship and Administration Act 1990 (WA).

The primary legal issue before the court was whether the husband should be appointed as QMW's guardian, instead of the Public Advocate and the Public Trustee. The court had to consider the relevant statutory criteria and principles outlined in the Act, including the need to appoint a guardian who is best suited to make decisions in the best interests of the represented person. The court also had to consider the husband's evidence and submissions, as well as the evidence and submissions of the Public Advocate and the Public Trustee.

In determining the issue, the court found that the husband's evidence demonstrated that he had a close and loving relationship with QMW, and that he had a deep understanding of her needs and preferences. The court accepted that the husband was well-suited to make decisions on QMW's behalf, given his long-standing relationship with her and his knowledge of her wishes. The court also found that the husband's evidence demonstrated that he was capable of making decisions in QMW's best interests, and that he had the necessary skills and resources to discharge the duties of a guardian effectively. Accordingly, the court concluded that the husband should be appointed as QMW's guardian, instead of the Public Advocate and the Public Trustee.

The final orders of the court were that the husband be appointed as QMW's guardian, and that the Public Advocate and the Public Trustee be removed from their respective roles. The court also made orders for the husband to be provided with appropriate support and training to enable him to discharge his duties effectively. The court's decision was based on a careful consideration of the relevant statutory criteria and principles, as well as the evidence and submissions of the parties.

Orders