Williams v Guardianship Board No. Dcaat-99-12 Judgment No. D25

[1999] SADC 25

GWENNETH DAWN WILLIAMS V GUARDIANSHIP BOARD

[1999] SADC D25

Judge Lee & Assessors Mrs Dahl and Dr Kent
Administrative & Disciplinary Division

1 This is an appeal against administration and guardianship orders made by the Board on 9 December 1998 under the Guardianship and Administration Act 1993. The Board directed that the orders be of six months duration "thus enabling early review to examine whether the orders could be revoked or whether they would need to be extended".
2 The Public Advocate was appointed guardian of the appellant limited to accommodation and health care and Public Trustee was appointed full administrator of the appellant’s estate.
3 The appellant lives on her own in a house property at Peterborough.  She and two sisters own the property as joint tenants.  The application to the Board was made by the building inspector of the Peterborough Council.  He inspected the property after a neighbour complained of the smell.  He saw what the Board described in its reasons as squalid and unhygienic living conditions.  He arranged for a council clean up of the property.  He formed the opinion that the appellant was unaware of her circumstances and unable to look after the property without assistance.  He decided after consultation with others to fill out an application to the Board.  He told the Board (at page 9 of the transcript):-
"Through ignorance I filled that out not realising exactly what it meant and what it led to, basically all I am after is that some help can be given to Dawn whereby someone will monitor the situation and look after her well being, which is not happening now, and that between those facilities we have in Peterborough and between the four of us we have been unable to come up with any plain and simple answer."
4 We should mention that the written form of application is defective.  In answer to the question "WHO DO YOU WANT THE BOARD TO APPOINT?", ticks appear in the boxes for "GUARDIAN" and "BOTH", but the box for "ADMINISTRATOR" has been left blank.  Perhaps the applicant was indicating that both orders were sought, but his intention should have been clarified.  In answer to the question "Does the person with the mental incapacity support this application?", a tick appears in the box for "DON’T KNOW".  It is unclear whether, and to what extent, the appellant had notice of the application. 
5 The appeal was argued on a number of grounds, but the following emerged as the most decisive:-

1. In relation to the administration order, the Board’s finding that the appellant was incapable of managing her own affairs was contrary to the evidence.

2. In relation to the guardianship order, the Board should first have been satisfied

1. that appropriate services for the care of the appellant were available in Peterborough

   (ii)     that those services had been offered to the appellant

2. that the appellant had rejected the offer or otherwise failed to  co-operate.

1. In relation to both orders, the Board failed to heed the requirements of s5 of the Act that consideration be given whenever practicable to the person’s wishes and that its decision should be the one that is the least restrictive of the person’s rights and personal autonomy as is consistent with his or her proper care and protection.
   6 These grounds were supported by the Public Advocate who appeared before us and submitted that both orders should be discharged.
   7 The Board made the administration order notwithstanding evidence before it that the appellant paid her utility bills and maintained her personal expenditure on food and other basics with help from her local bank staff.  Indeed, various credit references submitted to us by her counsel show that she appears to have no difficulty in managing her finances.  She is a good customer of Peterborough Foodland, she is up to date with her payments to Meals on Wheels, she arranges and pays for repairs and fuel for her motor vehicle, she pays her ETSA, RAA and SA Water bills on time, her butcher is prepared to give her credit when she asks for it, and she pays her council rates on time. Although the concern of the applicant was to get the appellant to agree to and fund repairs to her house, this scarcely warrants a full administration order.
   8 As for the guardianship order, the Public Advocate made the point that the Council has ample statutory powers to remedy insanitary or unsafe living conditions, and, in the absence of specific proposals from care providers or others, there were no decisions he could or should take on the appellant’s behalf.  In these circumstances, it is obvious that the guardianship order has had and will have no beneficial consequences, whether for the appellant or for the applicant. 
   9 In the result, the appeal will be allowed and both orders quashed.