RC - [2008] WASAT 180

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RC [2008] WASAT 180

MEMBER: MS F CHILD (MEMBER)
DR G HAMILTON (SENIOR SESSIONAL MEMBER)
MS S GILLETT (SENIOR SESSIONAL MEMBER)

HEARD: 7 & 28 MARCH 2008

DELIVERED : 11 AUGUST 2008

FILE NO/S: GAA 173 of 2008
GAA 175 of 2008

BETWEEN: RC
Represented Person

Catchwords:

Guardianship and Administration Review of orders Represented person suffering acquired brain injury as a result of a stroke Diagnosis of lifethreatening illness Need for orders Continuing conflict between the adult children and the partner of the represented person Wishes of the represented person Independent decisionmaker needed to make personal decisions Public Advocate appointed limited guardian Son appointed administrator with directions for financial support of the represented person and his partner

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17, s 41, s 43(1), s 44, s 51, s 64(1), s 68, s 112(2), s 119(3)(b)

Result:

Appointments of guardian and administrator confirmed

Category: B

Representation:

Counsel:

Represented Person : Self-represented

Solicitors:

Represented Person : N/A

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

G v K [2007] WASC 319

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On review of orders made three months previously for an elderly man suffering acquired brain injury as a consequence of a stroke, the Tribunal reappointed the Public Advocate as guardian to make personal decisions, including where he was to live and the contact he should have with others, and to give consent to medical treatment and services on his behalf.
The Tribunal decided that an independent guardian was needed because of continuing conflict between the adult children of the man and his partner, and the risk that the conflict would impact on the decisions made about his care and treatment.
The Tribunal confirmed the appointment of the adult son of the man as the administrator, as the son was familiar with the management of the estate, which included a working farm. The Tribunal gave the administrator directions regarding the financial support of the man and his partner.

Background

These reasons relate to reviews by the Tribunal of orders made in respect of RC (represented person) in December 2007. The reviews were heard on 7 and 28 March 2008. Following the review, a guardianship order was made on 7 March 2008 and an administration order on 28 March 2008, and brief oral reasons were delivered at the conclusion of each hearing.
These written reasons are published at the request of the representative of the son of the represented person. Identifying information has been removed, consistent with the requirements of the Guardianship and Administration Act 1990 (WA) (GA Act) (see s 17 Sch 1(12)) and the practice of the Tribunal in respect of proceedings under that Act.
The represented person is a 73‑year‑old retired farmer. He lives in a country town, having lived most of his life in and…

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: RC [2008] WASAT 180
Case: [2008] WASAT 180
Decision Date: 11 AUGUST 2008

CaseChat Overview and Summary

In this matter, the Court was asked to consider the review of orders made in relation to a represented person who had suffered an acquired brain injury following a stroke. The represented person had also been diagnosed with a life-threatening illness. The dispute involved the represented person's adult children and their partner, who had been in conflict over the represented person's care and financial support. The Court was tasked with determining the need for ongoing orders and who should be appointed to make decisions on the represented person's behalf.

The legal issues before the Court included the assessment of the represented person's capacity to make decisions, the necessity for ongoing orders, and the appointment of a suitable decision-maker. The Court needed to consider the represented person's wishes, the ongoing conflict between the family members, and the suitability of the potential decision-makers. The Court also needed to determine whether the represented person required an independent decision-maker to ensure that their personal decisions were made in their best interests.

The Court found that the represented person required ongoing orders and that an independent decision-maker was necessary to ensure that the represented person's personal decisions were made in their best interests. The Court appointed the Public Advocate as a limited guardian to make decisions regarding the represented person's personal care. The Court also appointed one of the represented person's sons as the administrator with directions for the financial support of the represented person and their partner. The Court considered that the son was the most suitable person to make financial decisions for the represented person, despite the ongoing conflict between the family members. The Court noted that the represented person had expressed a preference for their son to be involved in their care and financial support.

The Court made orders appointing the Public Advocate as a limited guardian and the son as the administrator with directions. The Court also made orders for the represented person's partner to continue to provide personal care to the represented person, subject to the directions of the Public Advocate. The Court emphasised the importance of the represented person's wishes and the need for an independent decision-maker to ensure that their best interests were protected.

Orders