THB

[2005] WASAT 26

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   THB  [2005] WASAT 26

MEMBER:   MR J MANSVELD (ORDINARY MEMBER)

HEARD:   ON THE PAPERS

DELIVERED          :   2 FEBRUARY 2005

FILE NO/S:   GU 324 of 2004

BETWEEN:     THB

Applicant

Catchwords:

Guardianship ­ Need for a guardian ­ Leave to withdraw guardianship application

Legislation:

Guardianship and Administration Act 1990 (WA), s 42(c), s 4, s 4(2)(a), s 43

State Administrative Tribunal Act 2004 (WA) s 46

Result:

Leave is granted for the Applicant to withdraw the Application for Guardianship

Category:    B

Representation:

Counsel:

Applicant:     Nil

Solicitors:

Applicant:    

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION

Background

1. DVS (THB's daughter) lodged an application for administration for THB on 4 November 2004.  TB (THB's son) lodged the application for guardianship on 10 December 2004.  The application for administration was heard on 17 December 2004 and the Public Trustee was appointed plenary administrator.

2. The application for guardianship was not processed in time for the hearing on 17 December 2004.  On 22 December 2004, Registry staff spoke with the Presiding Member who advised that guardianship was not raised in the hearing on 17 December 2004.  The Presiding Member stated that there was common ground that THB's daughters assisted him to continue to stay in his own home.  THB was said to be "high functioning".

3. Upon direction of the Presiding Member, the then Guardianship and Administration Board wrote to TB on 22 December 2004 advising him of the late processing of the guardianship application and asking him whether he wished to proceed.  TB wrote to the Tribunal on 25 January 2005 requesting withdrawal of the guardianship application but with no further explanation.

Issues

1. Should the Tribunal give leave for the guardianship application to be withdrawn?

Relevant Legislation

1. Section 43 of the Guardianship and Administration Act 1990 (WA) provides for the appointment of a guardian if certain matters are satisfied as to a person's capacity and abilities and whether a need for a guardian has been established. This is subject to s 4 of that Act which contains the principles to be observed by the Tribunal and which includes at s 4(2)(c) that an order shall not be made if the needs of the person can be met by other means less restrictive of the person's freedom of decision and action. The primary concern of the Tribunal shall be the best interests of the proposed represented person s 4(2)(a).

2. Section 46 of the State Administrative Tribunal Act 2004 allows for, amongst other things, the Tribunal to give leave for an applicant to withdraw their application.

Information Before the Tribunal

1. The Tribunal did not consider, in the circumstances of the matter, that oral evidence was required.  The Tribunal had otherwise before it:

   1.Application for guardianship lodged by TB on 10 December 2004.

   2.File Running Sheet by a Registry staff member with entries from 16 November 2004 to 22 December 2004.

   3.Copy of Guardianship and Administration Board letter to TB dated 22 December 2004.

   4.Letter requesting withdrawal of guardianship application from TB received by the Tribunal on 25 January 2005.

Discussion of the Evidence

1. The Presiding Member advised that guardianship issues were not raised at the hearing for administration on 17 December 2004.  This is supported by the fact that the applicant, TB does not want the guardianship application to proceed.

Findings Of Fact

1. The Tribunal finds that on the information available, THB's current guardianship needs are being met informally with the assistance of family members.

Reasons For Decision

1. The Tribunal is satisfied that, whatever the reasons for making the application originally, nothing before it suggests there is a current need for a guardianship order.  THB's needs are being met informally with the assistance of family members.

Decision

1. The Tribunal gives leave for the applicant to withdraw the application for guardianship.

I certify that this and the preceding 4 pages comprise the reasons of judgment of Mr J Mansveld.

_______________________

Mr J Mansveld

Member