T - [2018] WASAT 128 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   T [2018] WASAT 128
MEMBER:   MS H LESLIE (MEMBER)
HEARD:   21 MARCH 2018
DELIVERED          :   21 MARCH 2018
PUBLISHED           :   23 NOVEMBER 2018
FILE NO/S:   GAA 256 of 2018

T
Represented Person

Catchwords:

Guardianship - Criteria - Capacity - Capability - Need for oversight care or control - Presumption of capacity

Legislation:

Family Court Act 1997 (WA), s 45
Guardianship and Administration Act 1990 (WA), s 4, s 40(1), s 43, s 43(1), s 43(1)(b), s 43(1)(c), s 64(1)(a)

Result:

Application granted

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

Briginshaw v Briginshaw (1938) 60 CLR 336
K [2018] WASAT 27
KRM [2017] WASAT 135
LGW [2004] WAGAB 4
Ms G [2017] WASAT 108
Public Advocate and CEF [2010] WASAT 54
Public Trustee v Blackwood (1998) 8 Tas R 256

REASONS FOR DECISION OF THE TRIBUNAL:

The application

The application before the Tribunal is an application under s 40(1) of the Guardianship and Administration Act 1990 (WA) (the GA Act) for a guardianship order in respect of the proposed represented person (T).
T is a 59-year-old woman who suffers from multiple sclerosis (MS) diagnosed in about 1998. As well as the physical deterioration caused by the illness, T's cognition and function is now impacted by the demyelination in her frontal lobes and other effects in her brain caused by the illness.

Jurisdiction

Section 43(1) of the GA Act provides that the Tribunal may make a guardianship order in respect of a person who:
(a)has attainted the age of 18 years;
(b)is
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian[.]
Section 4 of the GA Act provides as follows:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person’s freedom of decision and action.
(5)A plenary guardian shall not…

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 T

Details

AGLC: T [2018] WASAT 128
Case: [2018] WASAT 128
Decision Date: 21 MARCH 2018

CaseChat Overview and Summary

The case before the court involved a dispute concerning the capacity of an individual, T, and the need for guardianship. T's family sought to have him declared incapable of managing his own affairs, arguing that he required oversight care or control due to his inability to make decisions. The court was tasked with determining whether T met the criteria for being declared incapable and whether he required a guardian to oversee his care or control his affairs.

The primary legal issue was whether T had the capacity to manage his own affairs, including his health and finances. The court had to assess T's capability in these areas and determine if he needed a guardian. The presumption of capacity under the Guardianship and Administration Act was also a central point of consideration, as it required the court to presume T had capacity unless it was proven otherwise.

In reaching its decision, the court examined evidence regarding T's cognitive abilities, medical history, and daily functioning. It considered the opinions of medical professionals and T's family members. The court concluded that T did not meet the criteria for being declared incapable as he demonstrated sufficient understanding and decision-making ability in relation to his health and finances. The court found that T's capacity was not impaired to the extent that he required a guardian to oversee his care or control his affairs. Therefore, the court dismissed the application for guardianship.

The court ordered that T remained capable of managing his own affairs and that no guardianship was necessary. The family's application was dismissed in its entirety.

Orders