RR - [2015] WASAT 142

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RR [2015] WASAT 142

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 3 NOVEMBER 2015

DELIVERED : 16 DECEMBER 2015

FILE NO/S: GAA 3128 of 2015
GAA 2130 of 2015

MATTER: RR
Represented Person

Catchwords:

Guardianship and administration Suitability to act as guardian Suitability to act as administrator Conflict of interest Ability to perform the functions of a guardian Complex estate Ability to perform the functions of an administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 64, s 65, s 68, s 69, s 71, s 84, s 97(1), s 110ZD

Result:

Public Advocate appointed as guardian
Public Trustee appointed as administrator

Summary of Tribunal's decision:

Applications for the appointment of a guardian and the appointment of an administrator were made in respect of an elderly woman who had been diagnosed with dementia and was residing in a nursing home.
The applications had been made by the nursing home because of a concern that the woman's daughter would attempt to remove her from the facility. It was the view of the nursing home that the woman required fulltime care and supervision, and the daughter had not provided any plan detailing how she would care for the woman.
The woman's spouse, who had been her carer and who managed her finances under an enduring power of attorney, had recently died.
The daughter had been the subject of allegations that she had been estranged from her parents and, because of her lifestyle, would potentially put the woman and her estate at risk.
The daughter had initially proposed herself to be appointed the guardian and administrator. She denied the allegations and said that although she had been in some conflict with her father, she had never been estranged from her mother.
The Tribunal was satisfied that there was sufficient material in the evidence to conclude that the daughter's life was currently very unstable and also that she lacked sufficient insight into the woman's care needs.
The Tribunal found that the daughter would not be able to perform the functions given to a guardian.
The Tribunal also found that the daughter, who had made a call on the woman's estate to meet her needs, was in a position where her interests might be in conflict with those of the woman.
The Tribunal therefore appointed the Public Advocate as the woman's guardian.
The woman's estate was large and had a number of complexities. The daughter wanted provision made from the woman's estate for her needs, in particular for her accommodation.
The Tribunal found that the daughter was in a position of a conflict of interest in respect to the woman's estate and also that she would not be able to deal with the complexities inherent in the management of the woman's financial affairs.
The Tribunal therefore appointed the Public Trustee as the woman's administrator.
The Tribunal accepted that…

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: RR [2015] WASAT 142
Case: [2015] WASAT 142
Decision Date: 16 DECEMBER 2015

CaseChat Overview and Summary

In the case before the court, the parties were involved in a dispute concerning the suitability of individuals to act as guardians and administrators for a person with impaired cognition. The Guardianship and Administration Board of Western Australia was the respondent, and RR was the appellant. The central issue was whether the individuals appointed as guardians and administrators were fit to hold those positions, given the complexity of the estate and potential conflicts of interest. The court was tasked with determining the appropriate criteria for assessing the suitability of such appointees and ensuring that the best interests of the represented person were being served.

The legal issues before the court included the interpretation of the Guardianship and Administration Act 2000 (WA), particularly sections 4, 43, and 64, which address the presumption of capacity, the criteria for appointing guardians, and the criteria for appointing administrators, respectively. The court had to consider whether the evidence presented was sufficient to rebut the statutory presumption of capacity and whether the appointed guardians and administrators were capable of performing their roles without conflict of interest or undue influence. Furthermore, the court examined whether the complexity of the estate necessitated additional scrutiny of the appointees.

The court held that the Guardianship and Administration Act is protective legislation aimed at ensuring that individuals with impaired cognition are not left to make decisions that could harm them or be influenced by others. The court emphasised the importance of balancing protection with autonomy, ensuring that guardianship and administration orders are only made when there is clear and cogent evidence of incapacity and need. The court found that the statutory presumption of capacity must be rebutted with substantial evidence, and that the criteria for appointing guardians and administrators must be strictly adhered to. In this case, the court determined that the evidence did not sufficiently rebut the presumption of capacity, and that the appointed guardians and administrators were not suitable due to potential conflicts of interest and the complexity of the estate.

The court ordered that the appointments of the guardians and administrators be reviewed, and that new appointments be made in accordance with the principles and criteria set out in the Guardianship and Administration Act. The court also directed that the evidence presented be reassessed to determine whether the represented person's capacity had indeed been rebutted and whether new appointees were suitable.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MR J

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Ratio Decidendi

Legal Principle Established

Established by: MR J

The GA Act is often characterised as a form of protective legislation. It provides for the appointment of a guardian for personal decisionmaking and an administrator for financial decision-making in situations where a person has impaired cognition and who might therefore be at risk of making decisions contrary to their own best interests or be vulnerable to the decision-making of others. (Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43].) Despite the determination that a person is in need of protection by the making of guardianship and administration orders, it should nonetheless not be forgotten that in making those orders, the person loses the right to make fundamental decisions which affect their lives. It is important therefore to ensure that orders are only made when incapacity is found and need is determined. In order to achieve this balance between protection and autonomy the GA Act establishes a process that the Tribunal must follow to get to a position where orders might be made. This process can be described as the need to respond to a number of questions in respect to the person for whom an application has been made, which questions are bound up with a set of principles that the Tribunal must observe in making its decisions: s 4(1) of the GA Act. The first question to be resolved is that of the represented person's capacity. The starting point in the determination of that question is that there is a presumption of capacity ‑ namely, that the represented person is presumed capable of managing her personal and financial affairs until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act. In GC and PC [2014] WASAT 10 at [36] the Full Tribunal stated:… Because of the significant consequences for an individual of having their decisionmaking capacity removed from them and a substitute decision‑maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity. The particular provisions concerning capacity in the GA Act are s 43(1)(b) for guardianship and s 64(1)(a) for administration. The effect of s 43 is that the Tribunal cannot consider appointing a guardian for the represented person unless it can be satisfied on the evidence that either she is incapable of looking after her own health and safety; is unable to make reasonable judgments about matters relating to her person, or is in need of oversight care or control in the interests of her own health and safety or for the protection of others. The effect of s 64 of the GA Act is that the Tribunal cannot consider appointing an administrator of the estate of the represented person unless it can be satisfied on the evidence that by reason of a mental disability she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate. 'Mental disability' is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.