TM - [2021] WASAT 92 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   TM [2021] WASAT 92
MEMBER:   PRESIDENT PRITCHARD
MR J MANSVELD, SENIOR MEMBER
DR J CAUNT, SESSIONAL MEMBER

HEARD:   13 NOVEMBER 2020, 17 DECEMBER 2020
DELIVERED          :   7 JULY 2021
FILE NO/S:   GAA 3735 of 2020

TM
Represented Person

Catchwords:
Guardianship and administration Application pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) Challenge to the appointment of a guardian and administrator Where represented person had suffered a brain injury due to a stroke or strokes Whether, by virtue of her mental disability, the represented person is unable to make reasonable judgments in respect of matters relating to all of her estate and in need of an administrator Whether represented person is unable to make reasonable judgments in respect of matters relating to her person, in need of oversight, care or control in the interests of her own health and safety, and in need of a guardian Where represented person spent beyond her means and showed lack of insight into her physical limitations which may impact her ability to negotiate NDIS services Whether less restrictive means available to facilitate decisions Where informal decision-making support available, but where formal authority of a guardian or administrator may be required in some circumstances Whether plenary or limited guardian and administrator required Where informal support for decision-making in place by virtue of assistance provided by NDIS co-ordinator and support workers Whether siblings were suitable guardians or administrators Impact on family relationships
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 17A(1), s 43, s 44, s 45, s 46, s 64, s 68
State Administrative Tribunal Act 2004 (WA), s 27
Result:
Public Trustee appointed plenary administrator
Public Advocate appointed limited guardian
Category: B
Representation:
Counsel:

Represented Person : N/A
Solicitors:

Represented Person : In Person
Case(s) referred to in decision(s):
FY [2019] WASAT 118
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301
PG[2021] WASAT 81

REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1TM has applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for the review of a decision made by a single member of the Tribunal, Member Leslie, on 16 July 2020.
2Member Leslie declared that TM was unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; in need of an administrator of her estate; incapable of looking after her own health and safety; unable to make reasonable judgments in respect of matters relating to her person; in need of oversight, care or control in the interests of her own health and safety; and in need of a guardian. Member Leslie then made the following orders (Orders). She appointed DM and AS, TM's brother and sister, as joint plenary administrators of her estate with…

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: TM [2021] WASAT 92
Case: [2021] WASAT 92
Decision Date: 7 JULY 2021

CaseChat Overview and Summary

The case involved an application by the Public Advocate under section 17A of the Guardianship and Administration Act 1990 (WA), seeking the appointment of a guardian and administrator for an individual who had suffered a brain injury due to a stroke or strokes. The application was made in the Western Australian Supreme Court. The primary dispute was whether the individual, due to her mental disability, was unable to make reasonable judgments concerning matters relating to her estate and person, and thus in need of a guardian and administrator.

The court had to determine several key legal issues, including whether the individual was unable to make reasonable judgments about her estate and whether she needed an administrator. Similarly, the court had to decide if she was unable to make reasonable judgments about matters relating to her person, necessitating oversight, care, or control in her own interests. The court also needed to consider whether there were less restrictive means available to facilitate her decision-making and whether the informal decision-making support provided was sufficient or if formal authority was necessary. Finally, the court had to evaluate whether the siblings were suitable candidates for the roles of guardian and administrator and consider the impact such appointments might have on family relationships.

In its reasoning, the court concluded that the individual, due to her mental disability, was unable to make reasonable judgments about her estate and personal matters. The court determined that while informal support was available through her NDIS co-ordinator and support workers, formal authority was necessary in some circumstances. The court found that a plenary guardian and administrator would be appropriate, as the individual required assistance in managing her estate and ensuring her health and safety. The court also found that the siblings were suitable candidates for the roles, considering the support they had already provided and the potential for maintaining family relationships.

The court made orders appointing the siblings as the individual's guardian and administrator, with a plenary mandate. The court's decision ensured that the individual would receive the necessary support and protection while considering the impact on family dynamics.

Orders