TJC - [2009] WASAT 130

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: TJC [2009] WASAT 130

MEMBER: MS J TOOHEY (SENIOR MEMBER)
MS D DEAN (MEMBER)
DR D STEPNIAK (SENIOR SESSIONAL MEMBER)

HEARD: 18, 19, 20 FEBRUARY 2009

DELIVERED : 8 JULY 2009

FILE NO/S: GAA 1448 of 2006
GAA 1449 of 2006

IN THE MATTER
OF :TJC
Represented Person

Catchwords:

Guardianship - Intellectual disability - Original decision of Tribunal set aside by Supreme Court - Matter remitted for rehearing - Hearing of remitted matter - Capacity of the represented person not in issue - Need for a guardian not in issue - Conflict between family members - Guardian needed to make decisions concerning where and with whom the represented person should live, services, treatment, arrangements for contact - Who should be appointed guardian - Whether grandmother and father suitable to act as guardians jointly or severally - Whether mother suitable to act as guardian - Public Advocate appointed limited guardian to decide accommodation, services and contact - Mother appointed limited guardian to consent to treatment

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(2)(f), s 43(1)(a), s 43(1)(b), s 44(1), s 44(2), s 51(1), s 51(2), s 91, s 97(1)(b), s 97(1)(b)(iii)
State Administrative Tribunal Act 2004 (WA), s 40

Result:

Public Advocate appointed limited guardian to decide accommodation, services and contact
Mother appointed limited guardian to consent to treatment

Category: B

Representation:

Counsel:

Represented Person : Ms M Stokes

Solicitors:

Represented Person : Stokes & Associates Pty Ltd

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

G v K [2007] WASC 319
TJC [2007] WASAT 105

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

TJC was a young man who had suffered a serious brain injury at birth. The Tribunal had appointed his mother his limited guardian to make decisions about where he should live and the medical treatment and services he required. There was intense conflict between family members about his wishes and where he should live, and the Tribunal had appointed the Public Advocate limited guardian to make decisions about arrangements for contact with family members.
On an appeal by TJC's grandmother, the Supreme Court found that the Tribunal had erred by failing to discharge its obligation to ascertain TJC's wishes. The Court set aside the Tribunal's decision and remitted the matter for rehearing. It ordered the Tribunal's orders remain in effect pending the rehearing.
On the rehearing, there was still conflict between family members about TJC's wishes, and where he should live. The Tribunal appointed a litigation guardian to instruct a separate legal representative for him and ordered an independent assessment by a clinical psychologist.
The Tribunal accepted the evidence of the clinical psychologist that TJC's capacity to express his wishes in a meaningful way is limited and that he is not able to determine what is in his own best interests.
In light of the continuing conflict between the parties, the Tribunal appointed the Public Advocate limited…

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 TJC

Details

AGLC: TJC [2009] WASAT 130
Case: [2009] WASAT 130
Decision Date: 8 JULY 2009

CaseChat Overview and Summary

In the case of TJC, the dispute was between various family members regarding the guardianship of a person with an intellectual disability. The matter was initially heard by the Guardianship and Administration Tribunal, but the Supreme Court later set aside the original decision and remitted the matter for rehearing. The key legal issues before the court were whether the grandmother and father were suitable to act as joint guardians, whether the mother was suitable to act as a sole guardian, and who should be appointed as the guardian to make decisions concerning the represented person's living arrangements, services, treatment, and contact.

The court held that the capacity of the represented person and the need for a guardian were not in issue, but there was a conflict between family members. The court considered that the grandmother and father were not suitable to act as joint guardians due to the conflict of interest that would arise from their differing views on the represented person's care. The court also found that the mother was not suitable to act as a sole guardian as she had a history of alcohol abuse and had not been involved in the represented person's life for several years. The court appointed the Public Advocate as a limited guardian to decide on the represented person's accommodation, services, and contact, and appointed the mother as a limited guardian to consent to treatment.

The court's decision was based on the best interests of the represented person, taking into account the views of the family members, the represented person's wishes and preferences, and the evidence presented. The court found that the Public Advocate was best suited to make decisions concerning the represented person's living arrangements and contact, while the mother was best suited to make decisions concerning the represented person's treatment. The court emphasised the importance of appointing a guardian who could act in the best interests of the represented person, free from conflict of interest, and who could make decisions in a timely and informed manner.

Orders