WKX (Review Guardianship)

[2012] TASGAB 10

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

WKX – Rejection of application to review a guardianship order

Neutral citation: WKX (Review Guardianship) [2012] TASGAB 10

REASONS FOR DECISION

Colin McKenzie (Deputy President)

Date of decision: 25 May 2012

Guardianship – review of guardianship – represented person’s father seeking appointment on basis of various complaints against Public Guardian – complaints not substantiated, wishes and best interests of represented person - formal requirements - excusing formal deficiency - reject application – lacking in substance – lack of HCPR- subject matter already been dealt with - no subsequent change to any material fact.

1.On 6 April 2011, the Board appointed the Public Guardian as guardian for the represented person, WKX, for 3 years. On 2 May 2012, KMX applied to the Board for a review of the order pursuant to Section 67 of the Guardianship and Administration Act 1995.

2.Section 67 is not mandatory. The Board is not required to hold a hearing in the event of an application.

3.An applicant for review is required by regulation 11(1)(e) to include a health care professional report and by regulation 12 to be supported by a declaration.  In those respects the application is formally deficient.

4.In appropriate cases S 11(2) may provide a basis for excusing the formal deficiency.  However in this case even if the formal deficiency is overlooked, the application should be rejected under S 11(13).

5.Section 11 governs The procedure of the Board. Section 11(13) provides:

The Board may reject an application under this Act at any stage of a proceeding if the Board is of the opinion that-

the application is frivolous or vexatious or otherwise lacking in substance; or

the subject matter has already been dealt with by the Board and there has been no subsequent change to any material fact.

In this case the application is lacking in substance.  There has not been any change to any material fact since the decision of the Board dated 6 April 2011. 

The application is lacking in substance because it relies on grounds of the guardian’s failure to provide medical treatment or permit investigation by the represent person’s general practitioner. 

Applications for appointment of guardian and consent to medical treatment require the applicant to include a health care professional report.  (see regulations 4(1)(e), 9(f), and section 44(2)(c)).  Clearly, before the Board is called upon to consider such matters the applicant is required to furnish a medical evaluation.  The Board should give careful consideration before embarking on an application for review of the appointment of a guardian on medical grounds without the applicant first providing medical evidence relevant to the ground. 

This application is not supported by any medical evidence or other evidence from any independent witness supporting the applicant’s claim that the proposed treatment should be considered.  The absence of any complaint, letter or report from any of the treating practitioners or service providers with whom the represented person has contact and addressing the treatment proposed or indeed any matter at all is a significant matter.  It is also significant that the applicant does not provide any supporting material from any suitably qualified person raising a basis for the Board to seek such information of its own motion.

6.Other than the above matter of medical treatment the applicant has not identified any material fact which has changed since the decision of the Board of 6 April 2011 to reject the applicant’s application to be appointed Guardian or the orders it made on that occasion.

7.        The Board finds the application for review;

(i)Is formally defective,

(ii)Is lacking in substance,

(iii)Relates to subject matter that has already been dealt with by the Board and there has been no subsequent change to any material fact.

The application is rejected.

Colin McKenzie
DEPUTY PRESIDENT