WKX (Review Guardianship) - [2013] TASGAB 23

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

File No XXXX

WKX – Application for Review of order by the Public Guardian

WKX (Review Guardianship) [2013] TASGAB 23

REASONS FOR DECISION

Ken Stanton (Chair)
Sue Hill (Board member)
Philippa Whyte (Board member)

Date of Hearing: 20 September 2013

Guardianship – Review of Guardianship – Nature of Review – Grievances about conduct of current guardian – Substitute guardian proposed – Informal form of application for substitute guardian - Suitability of Public Guardian as neutral guardian in case of potential family conflict – Unsuitability of proposed substitute guardian – Conflict of interest – Preserving family relationships - Best interests of represented person

Guardianship and Administration Act 1995 s. 6, 11(2), 21, 67

Holt & Anor v Protective Services Commissioner (1993) 31 NSWLR 227
BND (Review of Administration) [2012] TASGAB 3

On 6 April 2011 the Board made an order that the Public Guardian continue as the guardian of WKX (“WKX”).   It made the following orders:
1.   That the Public Guardian continue as WKX’s guardian.
2. That the powers and duties of the guardian be those conferred by Division 3 of Part 4 of the Guardianship and Administration Act 1995.
3.   That the order remains in effect until 16 September 2013.
By application dated 5 September 2013 the Public Guardian applied for a review of that order on the basis that it was due to expire. On 20 September 2013, pursuant to section 67 of the Guardianship and Administration Act 1995, the Board undertook that review.
By letter to the Registrar of the Board dated 4 October 2013 and received by the Board on 7 October 2013 KX requested a statement of reasons for decision concerning the review. This is that statement.

The hearing on 20 September 2013

The hearing of the review was attended by KX, WKX’s father (“KX”), Ms Pat Clarke from the office of the Public Guardian and Ms Debra Collier, WKX’s case manager from Tasmanian Rehabilitation Services, all of whom gave evidence.
At the hearing the Board had before it:
a.The application for review dated 5 September 2013
b.The Board’s Compliance Officer’s Report dated 16 September 2013
c.The Health Care Professional’s Report from Dr Andrew Jackson dated 18 September 2013
d.The order of the Board dated 6 April 2011 and the Reasons for Decision of the Board in respect of that order
e.A letter from the then Deputy Premier, Attorney General and Minister for Justice Lara Giddings to KX dated 5 May 2009
f.A letter from the President of the Board to KX dated 4 February 2009
g.A letter from the Public Guardian to the Board dated 9 September 2009
h.A letter from the Public Guardian to the Board dated 23 March 2011 and enclosed incident report
i.A visit report from Marguerite Lester dated 1 April 2011
j.The Annual Report to the Board by the Public Guardian in respect of WKX dated 6 October 2011
k.A letter from Crown Law to the Secretary Department of Justice dated 19 December 2011

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 WKX (Review Guardianship)

Details

AGLC: WKX (Review Guardianship) [2013] TASGAB 23
Case: [2013] TASGAB 23
Decision Date: 31 October 2013

CaseChat Overview and Summary

The matter before the court involved WKX, a represented person under the Guardianship and Administration Act 1995. The dispute centred around the conduct of the current guardian and the proposal for a substitute guardian. The application was made informally, and the suitability of the Public Guardian as a neutral guardian was considered, particularly in light of potential family conflicts. The proposed substitute guardian was deemed unsuitable due to a conflict of interest and the potential impact on preserving family relationships.

The court was tasked with determining the nature of the review, the suitability of the proposed substitute guardian, and the best interests of the represented person. The legal issues included the circumstances under which a guardian could be replaced, the suitability of the Public Guardian as a neutral party, and the potential impact on family relationships. The court had to balance the need for a neutral guardian against the interests of preserving family ties and ensuring the best outcome for the represented person.

The court concluded that the Public Guardian should continue as the guardian due to the potential for conflict with the proposed substitute guardian. The court found that the proposed substitute guardian was unsuitable because of the conflict of interest and the potential disruption to family relationships. The court determined that the Public Guardian was well-suited to act as a neutral guardian, preserving the family relationships and ensuring the best interests of the represented person. The court's decision was based on the need to maintain family ties and the suitability of the Public Guardian to act in a neutral capacity.

The orders made by the Board were that the Public Guardian continue as the represented person's guardian, with the powers and duties conferred by Division 3 of Part 4 of the Guardianship and Administration Act 1995, and that the order remains in effect until 16 September 2016.

Orders

Orders of the court

THE BOARD ORDERS

1. That the Public Guardian continue as the represented person’s guardian.

2. That the powers and duties of the guardian be those conferred by Division 3 of Part 4 of the Guardianship and Administration Act 1995.

3. That the order remains in effect until 16 September 2016.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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