SE - [2020] WASAT 168

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT:   GUARDIANSHIP AND ADMINISTRATION 1990 (WA)
CITATION:   SE [2020] WASAT 168
MEMBER:   PRESIDENT PRITCHARD
MS F CHILD, MEMBER
MS KY LOH, MEMBER

HEARD:   1 JULY 2020
DELIVERED          :   Ex tempore
PUBLISHED           :   11 FEBRUARY 2021
FILE NO/S:   GAA 1854 of 2020
SE
Represented Person

Catchwords:

Guardianship - Whether represented person is incapable of looking after her own health and safety - Whether represented person unable to make reasonable judgments in respect of matters relating to her person - Whether represented person is in need of oversight, care or control in the interests of her own health and safety or the protection of others

Guardianship - Suitability of appointment as guardian - Whether appointment as guardian would preserve existing relationships within the family of the represented person

Administration - Whether represented person has a 'mental disability' - Whether the represented person is unable to make reasonable judgments in respect of matters relating all or any part of her estate

Administration - Suitability of appointment as administrator - Whether proposed administrator is able to take responsibility for the represented person's financial situation

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43, s 44, s 44(2), s 64, s 68

Result:

Application dismissed

Category: B

Representation:

Counsel:

Represented Person

In Person

Solicitors:

Represented Person

N/A

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

FY [2019] WASAT 118
PB [2020] WASAT 121

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression)

Introduction

SE has applied, pursuant to s 17A 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 (Review Application).
In that decision the Member decided that the requirements under the GA Act for the appointment of a guardian and administrator had been met, she appointed the Public Trustee as the plenary administrator for SE's estate, and she appointed the Public Advocate as the limited guardian with functions in relation to where and with whom SE was to live, in relation to treatment decisions, and in relation to services. The Member also made an order for the review of those appointments.
SE has made the Review Application because she disagrees with the making of those orders. We will turn to her reasons for that below, but it suffices to say that SE does not consider that she requires a guardian or administrator and does not want either to be appointed for her.
For the reasons which follow, we are satisfied that a guardian and an administrator should be appointed, having regard to the requirements of the GA Act, and that there is a need for the appointment of a guardian and an administrator. We are of the view that the persons appointed should be, in respect of administration, the Public…

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: SE [2020] WASAT 168
Case: [2020] WASAT 168
Decision Date: 11 FEBRUARY 2021

CaseChat Overview and Summary

The case before the court involved an application for a guardianship and administration order concerning a person identified as SE. The court was tasked with determining whether SE required a guardian to manage her personal care and health, as well as an administrator to oversee her financial affairs. This decision was based on SE's capacity to make reasonable judgments in these areas, in light of her cognitive impairment, which was diagnosed as either Alzheimer's dementia or cognitive impairment likely due to excessive alcohol consumption.

The key legal issues addressed by the court were whether SE was incapable of making decisions necessary for her health and safety, unable to make reasonable judgments about her personal care, and in need of oversight for her health and safety. Additionally, the court needed to determine if SE was unable to make reasonable judgments about her estate and whether the proposed guardians and administrators were suitable for these roles. The court also had to consider the potential impact on SE's family relationships and the proposed administrators' ability to manage SE's financial situation.

The court reviewed medical reports from Dr F and Dr T, both of whom concluded that SE was unable to make reasonable decisions about her health and safety and financial matters. The cognitive screening tests also supported these findings. The court was satisfied that SE met the criteria for a guardianship order under the Guardianship and Administration Act, as she was unable to make decisions regarding her health and safety and required oversight, care, or control. Similarly, the court found that SE met the criteria for an administration order, as she was unable to make reasonable judgments about her estate. The court also considered the suitability of the proposed guardians and administrators, finding them to be appropriate for the roles.

The court granted the guardianship and administration orders in SE's case, appointing the proposed guardians and administrators. This decision aimed to ensure SE's health, safety, and financial well-being, while also considering the impact on her family relationships and the proposed administrators' ability to manage her estate.

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

We have two reports before us from Dr F (dated 20 June 2020) and from Dr T (dated 20 January 2020). Each of them have expressed the view that, in respect of matters relating to SE's own health and safety (personal care decisions), SE is incapable of making reasonable decisions. Similarly, each of them expressed the view that, in respect of matters relating to financial decision-making, SE does not have the capacity to make reasonable decisions. The diagnosis that is attributed to that cognitive difficulty is, according to Dr T, Alzheimer's dementia. In Dr F's opinion, it is a cognitive impairment likely due to excessive alcohol consumption in the past. The observations made in the reports of Dr F and Dr T are also consistent with the results of the application in relation to SE of well-known cognitive screening tests called the Montreal Cognitive Assessment Test and the MiniMental State Examination. These tests indicate levels of cognitive impairment on SE's part. Having regard to this evidence, we are satisfied that there is no doubt that SE is unable to make decisions that she would need to make to look after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, and that she is in need of oversight, care or control in the interests of her own health and safety. In respect of the other requirement for the appointment of a guardian, it is clearly met: SE has attained the age of 18 years. Section 43 of the GA Act also requires us to consider whether there is a need for the appointment of a guardian. We have considered that issue, and we are satisfied that there is a need in this case. In respect of personal care decisions, the evidence before us from officers from the Public Advocate, and the evidence contained in the service providers' reports that we received from Ms M (dated 5 June 2020) and from Mr F (dated 16 January 2020), suggested that SE has limited insight into her own needs, and an inability to understand her current situation and, therefore, to make appropriate judgments in respect of her personal care needs. The criteria for the appointment of an administrator are set out in s 64 of the GA Act. First, the Tribunal must be satisfied that a person in respect of whom an application for an administration order is made is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate. The definition of the term 'mental disability' under the GA Act is wide. It is not necessary that a particular diagnosis be made. The requirement is, in effect, that there is an impairment in the person's judgment or decision-making ability, irrespective of its cause. The Tribunal has explored the meaning of 'mental disability' in earlier decisions.[5] [5] See, for example, FY [2019] WASAT 118; PB [2020] WASAT 121. Having regard to the medical evidence to which we have already referred, we are satisfied that this first requirement is met, in SE's case.

Ratio Decidendi

Legal Principle Established

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