SM - [2015] WASAT 132

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: SM [2015] WASAT 132

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 13 NOVEMBER 2015

DELIVERED : 20 NOVEMBER 2015

PUBLISHED : 24 NOVEMBER 2015

FILE NO/S: GAA 4434 of 2015
GAA 4435 of 2015

MATTER: SM
Represented Person

Catchwords:

Guardianship and administration Capacity Mental disability Mental disability in context of a lack of a formal diagnosis of a medical condition Need for orders Suitability for appointment as guardian and administrator Guardian appointed No need for an administrator Less restrictive alternative to be allowed in management of represented person's finances

Legislation:

Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 43, s 44, s 64(1)(a), s 64(1)(b), s 68, s 69, s 71, s 84

Result:

Public Advocate appointed as limited guardian
Administration application dismissed

Summary of Tribunal's decision:

Applications for guardianship and administration orders were made pursuant to the Guardianship and Administration Act 1990 (WA) for a young woman who had suffered a significant medical condition at an early age and was fully dependent on others for her care needs.
The applications were made by the care team at a hospital because the woman was required to transition to adult health services. This involved a need to change the accommodation in which she had been living since a young child and also to change her longstanding medical and allied health team.
The woman had been assessed as having an impaired cognition including difficulties with her executive functioning. She was assessed as having a highly concrete style of reasoning, and she demonstrated difficulty in adequately understanding and interpreting language that was vague, ambiguous, or may contain hidden meaning.
The woman was not assessed as having an intellectual disability, but rather, that her reduced cognition was likely the consequence of a complex combination of her medical history with, to a greater extent, the cumulative effect of the psychosocial and educational limitations subsequent to her complex medical status.
Although not able to be labelled with one of the conditions mentioned in s 3(1) of the Guardianship and Administration Act 1990, the Tribunal found that the woman did have a mental disability. Although the definition in s 3(1) of the Guardianship and Administration Act 1990 mentioned certain generally accepted conditions which could impact on a person's cognitive abilities, it was not an exhaustive list and the Tribunal accepted that the definition had been drafted to allow for other ways in which a person's fundamental cognitive functioning might be affected.
The Tribunal found that the Public Advocate should be appointed the woman's guardian and did not appoint the woman's mother because of a longstanding breakdown in communication between her and the woman's medical team and other service providers.
The Tribunal decided that a less restrictive alternative to the making of an administration order was available and dismissed that application.

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person :…

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 SM

Details

AGLC: SM [2015] WASAT 132
Case: [2015] WASAT 132
Decision Date: 24 NOVEMBER 2015

CaseChat Overview and Summary

The parties in this case were SM, an individual who lacked the mental capacity to manage their affairs, and several interested parties who were concerned about SM's well-being. The nature of the dispute was whether SM had the mental capacity to manage their affairs and if so, who should be appointed to assist SM in this regard. The court in question was the Family Court of Australia. The legal issues that the court was required to decide were whether SM had the mental capacity to manage their affairs, and if not, who should be appointed as their guardian and administrator.

The court found that SM did not have the mental capacity to manage their affairs due to a lack of a formal diagnosis of a medical condition. The court also found that it was not necessary to appoint an administrator for SM's financial affairs, as SM had the capacity to make decisions about their personal matters. However, the court did appoint a guardian to assist SM in managing their affairs, as SM lacked the capacity to make decisions about their medical treatment and care. The court emphasised the need to find a less restrictive alternative to manage SM's finances, as the court recognised that SM had the capacity to make decisions about their personal matters.

The court's reasoning was based on the evidence presented to the court, which showed that SM had the capacity to make decisions about their personal matters, but lacked the capacity to make decisions about their medical treatment and care. The court also considered the need to find a less restrictive alternative to manage SM's finances, as the court recognised that SM had the capacity to make decisions about their personal matters. The outcome of the case was that a guardian was appointed to assist SM in managing their affairs, but no administrator was appointed for SM's financial affairs. The court's final orders were that a guardian be appointed to assist SM in managing their affairs, and that no administrator be appointed for SM's financial affairs.

Orders