RK - [2020] WASAT 53 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   RK [2020] WASAT 53
MEMBER:   JUSTICE PRITCHARD, PRESIDENT
MR J MANSVELD, MEMBER
DR F NG, SENIOR SESSIONAL MEMBER

HEARD:   8 MAY 2020
DELIVERED          :   8 MAY 2020
PUBLISHED           :   15 MAY 2020
FILE NO/S:   GAA 1123 of 2020

RK
Represented Person

Catchwords:

Guardianship and administration - Review by Full Tribunal of determination of single Member to appoint Office of the Public Advocate as guardian - Whether represented person requires guardian - Whether in best interests of represented person that family member be appointed as guardian - Suitability of family members to be appointed as guardian - Where significant family conflict - Whether plenary or limited guardian to be appointed

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 17A(1), s 43, s 44
State Administrative Tribunal Act 2004 (WA), s 27(1)

Result:

Limited guardian appointed

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	Mr R Graham
Fifth Interested Party	:	Mr R Graham
Sixth Interested Party	:	Ms M Kershaw
Seventh Interested Party	:	Ms M Kershaw

Solicitors:

Represented Person	:	N/A
Applicant	:	Vogt Graham Lawyers
Fifth Interested Party	:	Vogt Graham Lawyers
Sixth Interested Party	:	Kershaw Legal
Seventh Interested Party	:	Kershaw Legal

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Ms AW has applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for the review of a decision made by a single member of the Tribunal on 4 March 2020 (Original Decision) in respect of Mr RK (Review Application).
In the Original Decision, the learned Member declared that RK was incapable of looking after his own health and safety; unable to make reasonable judgments in respect of matters relating to his person; in need of oversight, care or control in the interests of his own health and safety; and in need of a guardian. The Member appointed the Office of the Public Advocate (Public Advocate) as the limited guardian for RK, with the functions of deciding where RK is to live; to decide with whom he is to live; to make treatment decisions for him; to determine what contact he should have with others; and to determine the services to which he should have access.
RK is married to Ms CM. They have three adult children: Ms AW, Mr LK, and Ms TK.
In the Review Application, AW contended that RK has the ability to make his own decisions, so that RK does not need a guardian, that less restrictive decision making options other than the appointment of a guardian should have been more thoroughly explored, and that if a guardianship order is required, she and LK should be appointed joint guardians or, if joint guardianship is not possible, she should be appointed the sole guardian for RK. LK supported the Review Application.
By the date of the hearing, none…

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 RK

Details

AGLC: RK [2020] WASAT 53
Case: [2020] WASAT 53
Decision Date: 8 MAY 2020

CaseChat Overview and Summary

The parties involved in this case are RK, the represented person, and the Office of the Public Advocate, which was appointed as their guardian. The dispute revolves around the decision of a single member of the Civil and Administrative Tribunal (NCAT) to appoint the Office of the Public Advocate as the guardian of RK, a decision that RK appealed to the Full Tribunal. The legal issues before the court were whether RK required a guardian, whether it was in RK's best interests for a family member to be appointed as their guardian, and whether any family members were suitable to be appointed as guardian given significant family conflict. The court also needed to determine whether a plenary or limited guardian should be appointed.

The Full Tribunal considered the evidence presented and the relevant legal principles. They noted that the decision to appoint a guardian should be based on what is in the best interests of the represented person. The court held that RK did require a guardian and that it was in their best interests for a family member to be appointed. However, due to significant family conflict, none of the family members were deemed suitable to be appointed as guardian. The court found that a plenary guardian was appropriate in this case, as RK required assistance with all aspects of their life. The Office of the Public Advocate was therefore appointed as the plenary guardian of RK.

The Full Tribunal's decision was based on a thorough analysis of the evidence and legal principles. They found that RK did require a guardian and that it was in their best interests for a family member to be appointed. However, due to significant family conflict, none of the family members were suitable to be appointed as guardian. The court held that a plenary guardian was appropriate in this case, as RK required assistance with all aspects of their life. The Office of the Public Advocate was therefore appointed as the plenary guardian of RK.

Orders