A and J
[2006] WASAT 287
•21 SEPTEMBER 2006
A and J [2006] WASAT 287
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 287 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:442/2005 | 13 MARCH 2006 10 APRIL 2006 29 AUGUST 2006 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) DR G HAMILTON (SENIOR SESSIONAL MEMBER) MR S JONGENELIS (SENIOR SESSIONAL MEMBER) | 21/09/06 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed | ||
| B | |||
| PDF Version |
| Parties: | A J |
Catchwords: | Guardianship Administration Intellectual disability Guardianship order sought in order to monitor proposed represented person's relationship with fiance Proposed represented person vulnerable to exploitation and abuse Fiance convicted of sex-related offences Conflicting capacity evidence No immediate need for a guardian alleged Proposed represented person in need of oversight and care but not in need of a guardian Most of proposed represented person's estate subject of a trust Capable of managing financial affairs Not in need of an administrator |
Legislation: | Guardianship and Administration Act 1990 (WA) |
Case References: | Abebe v Commonwealth (1999) 197 CLR 510, 576 Bushell v Repatriation Commission (1992) 175 CLR Dranichnikov v MIMA (2003) 197 ALR 389 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : A and J [2006] WASAT 287 MEMBER : MS J TOOHEY (SENIOR MEMBER)
- DR G HAMILTON (SENIOR SESSIONAL MEMBER)
MR S JONGENELIS (SENIOR SESSIONAL MEMBER)
- 10 APRIL 2006
29 AUGUST 2006
- GAA 626 of 2005
- Applicant
AND
J
Proposed Represented Person
Catchwords:
Guardianship - Administration - Intellectual disability - Guardianship order sought in order to monitor proposed represented person's relationship with fiance - Proposed represented person vulnerable to exploitation and abuse - Fiance convicted of sex-related offences - Conflicting capacity evidence - No
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immediate need for a guardian alleged - Proposed represented person in need of oversight and care but not in need of a guardian - Most of proposed represented person's estate subject of a trust - Capable of managing financial affairs - Not in need of an administrator
Legislation:
Guardianship and Administration Act 1990 (WA)
Result:
Applications dismissed
Category: B
Representation:
Counsel:
Applicant : Mr P Ward
Proposed Represented Person : Ms M Jurek
Solicitors:
Applicant : Peter Ward
Proposed Represented Person : Butcher Paull & Calder
Case(s) referred to in decision(s):
Abebe v Commonwealth (1999) 197 CLR 510, 576
Bushell v Repatriation Commission (1992) 175 CLR
Dranichnikov v MIMA (2003) 197 ALR 389
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 The applicant asked the Tribunal to appoint a guardian and an administrator for her sister, J, who has an intellectual disability. J was the sole beneficiary of a trust established by her deceased father and was expected to receive a damages payout in relation to a motor vehicle accident. The applicant believed that J was at risk of financial, sexual and emotional exploitation and abuse by her fiance who had recently served two years imprisonment for the sexual assault of one of J's friends who was also intellectually disabled.
2 The applicant did not seek to end J's relationship with her fiance but wanted a guardian appointed to monitor the relationship and, if necessary, to stop contact between J and her fiance and his friends. The applicant wanted an administrator appointed to stop the possibility of financial abuse.
3 The Tribunal found that J's intellectual disability impaired her decision-making capacity in ways that made her vulnerable to exploitation and abuse. However it was satisfied, in all the circumstances, that J was sufficiently able to identify potential and actual abuse, and, if necessary, to seek assistance from the support services and others around her, and that assistance and support would be available to her. It found that the potential for financial abuse was limited by the fact that most of J's estate was the subject of a trust and beyond the scope of an administrator's authority.
4 The Tribunal gave weight to J's strongly expressed wishes to maintain her relationship with her fiance and her independence from her family. It also took into account that the applicant did not say there was an immediate need for a guardian, but that a need might arise in the future. It also took into account the applicant's concession that there was probably a less restrictive means of meeting any financial needs than a formal appointment.
5 The Tribunal decided that, on the balance of the evidence before it, J was not in need of a guardian or an administrator.
Background
6 These proceedings are brought under the Guardianship and Administration Act 1990 (WA) (the Act). The applicant asks the Tribunal
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- to appoint a guardian and an administrator for her sister, J, who was born with cerebral palsy, triplegia and epilepsy, and uses a wheelchair. J is aged thirty-eight and is the youngest of five siblings. When their father died in 1982 he left all of his estate on trust for J and appointed her brother and three sisters trustees. The trustees built a house for J and have held the remaining monies in trust for her. It is not suggested that this arrangement of itself has been, or is, any cause for discord among the siblings.
7 These proceedings are brought by the applicant on behalf of J's family who are concerned that she is at risk of sexual, emotional and financial abuse by K, whom she is engaged to marry. The risk of sexual and emotional abuse is said to arise in particular following K's convictions and imprisonment in 2003 for sexual penetration, and indecent dealings with, an incapable person. That person was a woman who was a friend of J's at the time.
8 An oral hearing was held on 17 May 2005 but was adjourned at J's request that she be allowed time to obtain an assessment of her capacity to look after, and make decisions about, her own health and safety. The resulting report indicated that J was capable of making independent and rational decisions about her health and safety.
9 A further hearing was held on 7 September 2005 at which time both the applicant and J had legal representation. It was agreed at this hearing that a further assessment of J's capacity should be obtained.
10 Oral hearings were held on 13 March 2006 and 10 April 2006, following which both the applicant and J were allowed further time to make written submissions. At the 13 March hearing the Tribunal agreed, at J's request, to hear from her with only her legal representative present. The applicant has since asked for access to the transcript of that part of the evidence so that she and the family can respond to it. We have not agreed to her request. The purpose of hearing from J alone was for us to hear her wishes; the Act obliges us, as far as possible, to ascertain her views and wishes and to take them into account. We do not believe that the interests of the applicant or other family members have been adversely affected by denying them access to that part of the evidence.
11 The Tribunal has before it written submissions from the applicant and other members of J's family, submissions by counsel for the applicant and for J, and the medical and other reports referred to below. It also has the transcript of K's trial in the District Court.
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12 The applicant has written extensively to the Tribunal alleging that, besides his convictions for the sexual assault of J's friend, K has been involved in stealing and associating with criminals; that he has been charged in the past with drug-related offences and that he may have enticed J to take drugs; and that, under his influence, J smuggled goods out of prison for him and, more recently, that he has breached the conditions of his parole by living with her.
13 The applicant has continued to send submissions to the Tribunal well after the time that the Tribunal reserved its decision. For the most part the submissions were about matters that were already before the Tribunal or were more properly matters for other agencies. Recently, however, the applicant made certain allegations that the Tribunal considered would be material to its decision if substantiated. Parties were therefore allowed further time in which to make, and respond to, those allegations. Final submissions were received on 29 August 2006.
14 The applicant has urged the Tribunal to hear evidence from a number of persons, including former friends of J; also to obtain information from other parties, including government agencies, about K and persons with whom he is alleged to associate, and matters concerning his criminal convictions and an alleged breach of conditions of his parole. She has recently urged us to make inquiries about J's present welfare and safety. We have decided against trying to obtain, and hearing, this evidence.
15 Although the notion of onus of proof has no part in administrative proceedings, there is nevertheless a practical onus on the applicant to support her application because the Tribunal is entitled to rely on the case an applicant presents: Bushell v Repatriation Commission (1992) 175 CLR; Abebe v Commonwealth (1999) 197 CLR 510, 576. The Tribunal's inquisitorial role does not mean that an applicant can simply present what are said to be facts and leave it to the Tribunal to search out the truth of any and all allegations, in effect shifting the burden of providing the evidence in support of a claim to the Tribunal: Dranichnikov v MIMA (2003) 197 ALR 389.
16 The questions before us are whether J is a person for whom a guardian and an administrator should be appointed. While that necessarily involves a careful examination of all her circumstances, our inquiry does not require us to pursue all of the matters alleged by the applicant, many of which are not substantiated in any way.
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17 We have before us evidence of K's convictions for sexual offences including the transcript of his trial in the District Court and the judge's remarks on sentencing him. His convictions speak for themselves. We do not believe that it will further our inquiry to hear from J's former friends with whom she no longer speaks and whose relationships with her are now antagonistic. We are satisfied that we have sufficient evidence before us to reach decisions in these proceedings.
18 We note for the record that Senior Sessional Member Leslie, who with Senior Member Toohey and Senior Sessional Member Hamilton originally constituted the Tribunal for the purposes of these proceedings, was replaced by Sessional Member Jongenelis after the preliminary hearing on 7 September 2005. Mr Jongenelis has had available to him all the documents that were before Ms Leslie.
Relevant legislation and principles to be observed
19 Section 43(1) of the Act provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
(a) has attained the age of 18 years;
(b) is –
(i) incapable of looking after her own health and safety;
(ii) unable to make reasonable judgments in respect of matters relating to her person; or
(iii) in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(c) is in need of a guardian
- the Tribunal may by order declare her to be in need of a guardian and appoint someone to act in that role.
20 Section 64(1) provides that, where the Tribunal is satisfied that a person in respect of whom an application for an administration order is made:
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- (a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate; and
(b) is in need of an administrator of her estate
- the Tribunal may by order declare her to be in need of an administrator and appoint a person to be her administrator.
21 The principles to be observed by the Tribunal when dealing with proceedings under the Act are set out in s 4. They are firstly, that the best interests of the person for whom an order is sought must be our primary concern. Secondly, every person is presumed to be capable of looking after her own safety and health; of making reasonable judgments in respect of matters relating to her person; of managing her own affairs; and of making reasonable judgments in respect of matters relating to her estate. Thirdly, a guardian or administrator shall not be appointed if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Fourthly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of the person concerned. Fifthly, an order appointing a limited guardian or an administrator shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person’s freedom of action and decision. Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.
Matters concerning K, and J's relationship with him
22 J met K in about 1995. There was a break of some time in the relationship some years ago when K formed a relationship with another woman.
23 In 2000 J became pregnant to K but terminated the pregnancy. We have heard various accounts of how the decision to terminate was reached. The applicant says the decision was made under K's influence. J has told us that she and K made the decision together after medical advice that the baby was severely malformed because of medication she had been taking. By other accounts, J appears to blame her family for forcing her to terminate the pregnancy. In any event, it seems that everyone thought the pregnancy should be terminated, if perhaps for different reasons.
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24 In 2003, K was convicted of several charges related to his dealings with J's friend, D, who also has an intellectual disability and is also in a wheelchair. J was present at the time of the offences. The transcript of the District Court proceedings makes for difficult reading because of the graphic detail that had to be elicited from D who is evidently very impaired intellectually. It is not necessary to recount here the details of the offences other than to say that K was convicted in November 2003 and sentenced to imprisonment. He was released in 2005 and, shortly after, he and J were engaged. J is now estranged from D and another friend, S.
25 The applicant describes K as a "predator" who has preyed on J, D and S. She alleges that, under his influence, J procured her friends for K's sexual gratification. She cites J's unwavering support for K despite his convictions, and her acceptance of his defence that D consented to his actions, as evidence of her susceptibility to his influence. The applicant has asked that we hear from D and S so that we understand fully what happened at the time; also so that we can see J's complicity in K's actions and the extent of his influence over her. J has strongly resisted this and says that her relationships with D and S have so deteriorated that their evidence is not reliable. We do not consider it necessary to hear from D and S.
26 The other serious concern that the applicant has about K relates to events in late 2004 while he was in gaol. Another man, SD, who was in the same gaol for an offence, or offences, related to pornography, was released on parole and allowed to live at J's house. On the night he arrived at her house, he sexually assaulted J and there were further incidents of "inappropriate touching". J has said that she did not report the incidents when they happened because she felt sorry for the man who had nowhere else to live and because she thought to do so might adversely affect K's chances of parole which was imminent; as well, she did not want a repeat of K's trial at which, she says, the trial judge called her an "imbecile" who was under K's influence. J complained about SD to his parole officer, and also told a friend, JG, but it was six months before she reported the incidents to the police.
27 The applicant alleges that K may have been complicit in SD being paroled to live at her house and says K encouraged J to agree to the arrangement on the basis that SD would be her carer. The applicant has complained to the Department of Justice and other government agencies about the arrangement and she complains that the Tribunal has not allowed her to "ventilate" it during the hearing.
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28 It seems, on its face, an extraordinary decision to allow a man convicted of a sex-related offence to be paroled to live with a woman who by any measure is vulnerable on account of her intellectual disability and because she is in a wheelchair. It is not for the Tribunal to go into that decision. It is not hard to understand why the applicant feels so aggrieved and angry about it but we are satisfied that we have sufficient evidence for our purposes to make a decision without trying to ascertain why and how that decision was made.
Evidence and submissions about J's capacity
29 The question of J's capacity is at the heart of these proceedings. The applicant says that the family has always encouraged J to be independent. She does not dispute that J has been able to manage most things and make decisions about her life but, the applicant says, as J has grown older she has become more independent and more difficult.
30 The applicant says that J is not able to make decisions in her own best interests and is unable to protect herself from abuse and exploitation. As well as the circumstances surrounding K's conviction and SD's conduct towards J, the applicant cites J's resistance to the family's concerns about K, her estrangement from the family and her decision to move from the home built for her by the trust to one that is less suitable to her physical needs so that she could be closer to K, as evidence of her impaired judgment.
31 J maintains strenuously that she is capable of making decisions for herself.
Expert evidence about J's capacity
32 Apart from a report from a doctor who has not seen J for many years and whose report we therefore discount, we have before us the following evidence:
(i) Dr Derek Cohen clinical psychologist, report dated 1 August 2005
33 Dr Cohen saw J at her request following the first adjournment of these proceedings. His report outlines the various tests he performed on J on the basis of which he concludes that she "reveals sufficient capacity and social skills to make independent and rational decisions about her health and safety."
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34 In oral evidence, Dr Cohen told us that his expertise is not in the field of intellectual disability and that his opinion was based solely on information provided to him by J; he sought no other information from anyone else and he was not made fully aware of the circumstances that had led to the applications; and he had not seen the other reports now before us. Dr Cohen told us he could not comment on J's suggestibility; he thought she is capable of understanding others' motives but he was unable to say how objective she might be in assessing them.
(ii) Dr C, report dated 20 September 2005
35 Dr C has been J's general practitioner for about five years. In response to a brief, standard form sent to him by the Tribunal, he stated that he was not sure if J could make reasonable decisions about her personal health care, her living situation and her financial affairs. Insofar as decisions about her living situation, he thought that J "appears to have managed reasonably to date". We did not hear oral evidence from Dr C.
(iii) Dr Carmela Connor clinical psychologist, report dated 29 November 2005
36 By agreement between J and the applicant, J saw Dr Connor for assessment for the purposes of these proceedings. At the Tribunal's request, Dr Connor was provided with detailed background information by the Office of the Public Advocate. Besides her written report, we heard oral evidence from Dr Connor.
37 Dr Connor performed a range of psychometric tests over two interviews from which she concludes that J has "significant impairments across a variety of cognitive domains"; she consistently performed within the extremely low range for tests of executive functioning, indicating a "significant degree of executive dysfunction".
38 In Dr Connor's view, J has limited ability to take in and process information. She has poor cognitive flexibility, judgment, planning, insight and judgment, and the problems are compounded because J comes across more cognitively intact than tests indicate she is. In particular, her relatively strong verbal skills tend to mask her underlying impairment and lead people to overestimate her abilities.
39 Dr Connor states that she has no hesitation in concluding that J's safety and well being is at risk as she is unable to make rational and reasoned decisions about her life. In her view, J is unable to foresee consequences and plan ahead; she would not always recognise a problem;
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- she has "poor boundaries" and cannot understand others' motives or respond appropriately to social pressure in a manner that indicates an ability to protect her self. As a result, Dr Connor finds her "extremely vulnerable to exploitation and abuse".
40 By way of example, in Dr Connor's view, there was a "superficiality" to how J described the sexual assault on her friend and she notes that J "did not appear perturbed" that K had sex with her friend or that he was imprisoned for it.
41 Dr Connor further states that she understands "from the source material" that J has a history of financial problems; she had in the past fallen behind in rent and had encountered other financial difficulties such as being unable to pay bills. J strongly disputes this and maintains that Dr Connor's view was formed on the basis of inaccurate information given to her by the applicant.
(iv) Ms Jura Tender, clinical psychologist, report dated 30 January 2006
42 Ms Tender also saw J on two occasions and administered various psychometric tests. J contacted her and requested the assessment after she saw Dr Connor's report. The assessments were conducted first at J's home and then at K's home and Ms Tender also spoke with people from the Disability Services Commission and a home help service. She also had available to her Drs Cohen's and Connor's reports. We have also heard oral evidence from Ms Tender.
43 In Ms Tender's view, some of J's cognitive deficits are on account of poor education rather than poor ability to express her thoughts. Dr Connor does not agree with this view. However, both agree that J comes across more cognitively intact than tests indicate.
44 According to Ms Tender, J's social coping skills are only "adequate" and her capacity to recognise risk and protect herself socially is "borderline"; she is quite socially isolated, her friendships being limited mainly to K and JG; she is fairly naive in social situations but she is learning to cope with adult relationships; she makes "sufficiently adequate judgments and is learning to make better ones".
45 Ms Tender considers J needs an opportunity to learn, and she thinks her recent experiences have added to her learning. By way of example, J has acknowledged to Ms Tender that she should have done more, and sooner, about what SD was doing.
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46 Ms Tender notes that K appears to undertake the role of carer, doing shopping and cooking, and she notes an "obvious attachment" and a "fairly solid relationship" between him and J. Ms Tender notes that J has a good relationship with her Local Area Coordinator from the Disability Services Commission. She believes, on the basis of several examples she gave us, that J is functionally quite able to contact people and services for assistance should the need arise.
47 Ms Tender finds, "on the basis of having demonstrated ability to cope with independent living and access her own supports, to maintain a close relationship over seven years and to aspire to further independence, [J] is not in need of a guardian"; she can make decisions about her own health and safety and can make reasonable judgments and therefore is not in need of oversight, care and control. In Ms Tender's view, the orders sought would be unnecessarily restrictive and could actually impede J's development.
(v) Dr Book Loke, consultant psychiatrist, report dated 3 April 2006
48 Dr Loke assessed J at the request of her legal representative because of the conflicting views of Dr Connor on one hand, and Dr Cohen and Ms Tender on the other. He was provided with copies of their reports. Dr Loke has told us that he assessed J as a psychiatrist and he could not comment on Dr Connor's findings about J's executive functioning as that is within her speciality. As well as his written report, we heard oral evidence from Dr Loke.
49 Dr Loke has told us that J spoke sensibly to him about her health issues; she showed a reasonable knowledge of health issues and "adequate pragmatism" in her willingness to seek medical intervention. In his view, on the whole, J is able to weigh up the pros and cons in making decisions about matters such as her health and accommodation and has reasonable judgment even if it perhaps sometimes clouded by sentimentalism. In this regard he referred to a plan that J and K have to live on a houseboat on the Murray River. In Dr Loke's opinion, J is capable of managing her pension and daily living expenditure.
50 Dr Loke was aware of the circumstances that led to these proceedings. He says he is satisfied from his discussion with J that she had good reasoning as to why she delayed reporting what SD was doing. He finds her capable of looking after own health and safety and concludes that she is not in need of oversight, care or protection and not in need of a guardian.
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Other evidence and submissions
51 The Public Advocate was asked by the Tribunal to investigate and report on whether J is a person for whom appointments can, and should, be made. In written and oral submissions, the Public Advocate has expressed the view, based on discussions with the parties and others, that J could be found, on the evidence, to have a decision-making disability and be in need of oversight care and protection within the meaning of the Act. In the Public Advocate's view, Dr Connor's report is the most far-reaching and substantial and specifically addresses relevant questions about J's capacity and should be preferred; on the other hand, Ms Tender's views are more "rights focussed". However, the Public Advocate questions whether J is in need of a guardian and administrator within the meaning of the Act.
52 We have also heard evidence from J's friend JG, and from LH and the organisation which provides home help to J.
The guardianship application: the applicant's submissions
53 The applicant says that J is unable to recognise, assess and protect herself from, exploitation and abuse by K and his associates and that she is especially at risk now that she is estranged from her family. However, although she disapproves strongly of the relationship, and considers it exploitative of her sister, the applicant has not sought to restrict J's relationship with K in any way and she does not seek to do so now.
54 The applicant and the family are conscious of J's need for self-determination. They recognise that J finds fulfilment in the relationship and the applicant acknowledges that K is supportive of J. The applicant does not dispute that J is capable of contacting community support groups for "routine assistance and advice" with some degree of success. However, she says, K has characteristics that bring J's vulnerability into sharp focus; J rarely makes a decision without consulting him and, especially in view of past events, the relationship is a "cocktail of risk".
55 The applicant argues that Dr Connor's opinion is the most compelling because it is the only one that specifically addresses the "gravamen of the applicant's concern and the matter for decision, being the risk inherent in [J's] limited capacity for executive function, specifically her limited capacity to comprehend (and therefore assess) risk and the development or emergence of risk". The applicant argues that the other expert evidence goes more to J's capacity to attend to the normal, routine tasks of daily life and that less weight should attach to it.
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56 The applicant proposes that the Public Advocate be appointed to "keep an eye" on things and, should the need arise, to safeguard J's interests by "drawing lines" that she cannot draw herself.
57 Although the applicant says she sees a role for a guardian to be involved in decisions about J's accommodation, services and contact with others, she also says that does not think that a substitute decision-maker is needed but rather someone with an "educative and pastoral" role. She suggests that a guardian could meet with J monthly to see how things are going; the guardian would be someone J could go to if needed, who could monitor the relationship and see if things are going off track. In particular, a guardian could contact the police and bring an application on J's behalf for an Apprehended Violence Order against any "predators". The applicant maintains that a guardian with authority to restrict J's associations would almost certainly have averted what happened with SD.
J's views and wishes
58 J does not dispute that she is in need of disability services but says she can arrange them herself. She cites her successful contacts with real estate agents to find her present accommodation and contact with her present solicitors and with other solicitors in relation to a personal injury claim. She also cites her contact with Ms Tender for an alternative assessment of her capacity and the arrangements she has made for he own home help. She contacts her Local Area Coordinator, LH, regularly for help and, if she needs something, she does research on her computer or asks her friend, JG, to help her.
59 J has expressed to us in the strongest terms her desire to make decisions for herself. She says she is her own person and makes her own decisions. She does not consider herself to be under K's control. She says that, before he came along, she "didn't really have a life". She says the orders would be "like a prison sentence".
60 As we have said, we do not propose to go into the details of K's convictions or the applicant's allegations about J's role in the offences. J appears to understand fully what happened. She supports K's account and accepts his defence that D consented to his advances. She has told us that what K did made her very angry; it hurt and upset her deeply and will always be there, but she has forgiven him. It is evident that she is very dependent on K and on the relationship but, whatever we might think of her support for him, we accept that J is quite aware of what he did and has decided for herself to put it behind her.
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The views of the Public Advocate
61 The Public Advocate's report to the Tribunal refers to K's acknowledgement to one of her officers that, although SD was not a friend of his, he was instrumental in the arrangement for SD to be paroled to live with J. As the Public Advocate states, that at best indicates a lack of appreciation of, and at worst a disregard for, the risk that J was being exposed to in that situation. In the Public Advocate's view, J is a person for whom an order could be made.
62 However, while the Public Advocate recognises the applicant's wish to protect her sister, she questions what specific functions a guardian would have and what the appointment might achieve.
The views of others
63 JG is a taxi driver who met J when she was returning home from visiting K in prison. He visits her two or three times each week to help with household chores and other things she cannot do for herself. He is aware of K's trial and convictions and he knows most of what happened with SD. He does not believe that K has undue influence over J. He understands her family's concerns about K but says it is J's life.
64 The applicant alleges that there was some prior association between JG and K, and that JG is part of the "cocktail of risk" to which J is exposed. JG refutes this and says he has only become friends with K through J. We have seen no evidence to support the applicant's allegation.
65 We have also heard from a home help service which provides support to J. They say that she is clearly susceptible to influence; although she can reason and discuss, she looks to K for decisions; she is vulnerable to exploitation and needs close informal monitoring to prevent exploitation. The home help service asked LH, the Local Area Coordinator, to become involved. They are aware that J has JG's mobile phone number and calls on him when she needs help.
66 LH gave evidence that he has been involved with J since early 2004. He sees his main role as supporting her and helping with services and he thinks she has the capacity to contact services as needed. J contacts him regularly and, if he hasn't heard from her for a few weeks, he will contact her. In the months before this hearing she called him every 3-4 weeks, sometimes more frequently. LH has told us that he believes J would come to him if she had any need for assistance or if there was a threat of exploitation or abuse.
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67 We did not hear oral evidence from K. He attended the hearing on 13 March 2006 when he appeared to be supportive and to assist J. He did not attend the hearing on 10 April 2006. In between, he wrote to the Tribunal about his relationship with J. We decided against requiring him to give oral evidence.
The guardianship application: findings about J's capacity
68 We have considered the expert evidence and are not satisfied, on balance, that it supports a finding that J is incapable of looking after her own health and safety or that she is unable to make reasonable judgments in respect of matters relating to her person.
69 However, there is no question in our minds that J is vulnerable to exploitation and abuse. She is unwavering in her support for K. She defends his conduct towards her friend and shows a lack of concern for her. Even though she appreciates what K did was wrong, and even though it hurt and angered her, she so much wants to be with him that she is able effectively to disregard his actions. Her degree of dependence on K makes her vulnerable to exploitation. Although J says she does not need anyone to help her, she in fact looks to JG and LH for guidance and support.
70 The experts' evidence is conflicting, partly because of their different fields of expertise and partly because they have different approaches. Dr Connor most specifically addresses the matters that the Tribunal has to decide. We accept her opinion that J has "significant impairments across a variety of cognitive domains" and that her executive functioning in particular is compromised.
71 Ms Tender agrees with Dr Connor that J tends to come across more cognitively intact that tests indicate. While she disagrees with Dr Connor's final assessment, she can only rate J's social coping skills are "adequate" and her capacity to recognise risk and protect her self socially as "borderline". She finds J "fairly naïve" but considers she should have an opportunity to learn and thinks her recent experiences have added to her learning. It is fair to say that Ms Tender's opinion is informed by a more "rights based" approach that Dr Connor's.
72 Dr Loke was aware of the circumstances that have led to these proceedings. He is satisfied that J is capable of looking after own health and safety and that she is not in need of oversight, care and protection and not in need of a guardian.
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73 Because his report was made without the benefit of the background to the proceedings, we give no weight to Dr Cohen's report.
74 In other circumstances, we might have found J capable in all respects contemplated by s 43(1) of the Act. However, we are satisfied, on the balance of the evidence before us, at least while J is involved with K, that she is in need of oversight and care in the interests of her own health and safety within the meaning of s 43(1)(b)(iii) of the Act.
Is J in need of a guardian
75 The applicant does not seek to terminate J's relationship with K or to interfere with it in any way at this time. She acknowledges the relationship is important to J and that she finds a certain fulfilment in it. She also acknowledges J's need for self-determination.
76 It is not suggested that J has a present or even immediately foreseeable need for a guardian. The applicant seeks the appointment of a person to "keep an eye" on things and to offer guidance to J. The only thing, in practical terms, a guardian would do would be to seek a restraining order against K or persons associated with him if he or she perceived a need to protect J from sexual exploitation or abuse.
77 Given K's convictions and his apparent part in SD coming to live with J, we do not need to be persuaded as to why the applicant is so concerned for her sister. We cannot say that there is no risk of exploitation and abuse. But we are not satisfied, on the balance of all the evidence before us, that J is in need of a guardian within the meaning of the Act.
78 Whether or not an appointment is "workable" is not a test of whether it should be made. However, there must be some content and meaning to an order.
79 It seems to us that what the applicant is seeking is more in the nature of a family member, friend or service provider than a guardian.
80 We are satisfied that J has substantial supports in place and that she is able, and would, contact them if the need arose. In particular, JG and LH are fully aware of her circumstances and her vulnerability, and are accessible to her. We are satisfied that, either singly or together, they are able to fulfil the role that the applicant wants a guardian to play.
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The administration application: the applicant's submissions
81 The trust established by J's father now has assets of approximately $750 000 which includes around $50 000 held in an account. The remaining asset is the home which was purpose built for J but which she moved out of late December 2003 so she could be closer to where K was in prison. Her mother lives in an adjacent house on the same block also built by the trust and for which she pays rent.
82 Besides an allowance paid until recently by the trust, J's income is a Disability Support Pension. Although she maintains that the trust rarely buys anything for her including things she needs like a new wheelchair, she is apparently determined, because of the conflict with her family, not to approach the trustees for assistance.
83 According to the applicant, the trustees have tried to build J's financial independence over the years, for instance by requiring her to pay rent for the house which rent was then paid into the trust for her. However, as J grew older and more independent, the applicant says, she has got into financial difficulties at times, such as getting behind in her rent and needing to have bills paid for her by the family. The applicant also refers to financial difficulties she says J got into selling products from home which ended with the company having to write off her debts to it. Some of the instances go back ten years or more; others are more recent.
84 As evidence of J's vulnerability to financial exploitation, the applicant cites bills that J paid for K while he was in prison including taking on the care of his dogs and paying $150 per month to store of his vehicles. She says J did without adequate heating for herself, and slept in her ugg boots, so she could meet these bills.
85 Although the applicant maintains that an administrator would be a safeguard against abuse by K of the trust established by their father, she concedes that the trust is beyond the reach of an administration order. Her principal concern is to safeguard an amount of compensation due to J on account of a whiplash injury she received in a motor vehicle accident in 2004. The claim has not been finalised but J's solicitor estimates damages will be between $10 000 and $20 000.
86 The applicant says that J needs someone to guide and give her "a bit of help" with budgeting and to help her understand how parties in a relationship need to pull their weight together. However, she concedes there is probably a less restrictive means of meeting J's need than a formal appointment.
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J's views and wishes
87 J says she understands that her family is worried that K will "rip her off" financially. However, she vehemently disputes the financial difficulties cited by the applicant in particular in relation to rent payments. She agrees that she has paid bills for K but insists that to do so is her choice and her right.
88 J disputes that she is unable to budget. In oral evidence she was able to detail her income from her pension and how she spends it. As an example of her budgeting skills, she told us how she recently paid for surgery for her dog. When she found the cost was around $600, she rang the vet and found she could pay a deposit of $200 and the balance at $100 per fortnight, which she did. She expressed the strong view to us that her money is hers and not K's, and she has agreed with her solicitors that she will sign a pre-nuptial agreement with K before they marry.
89 J's claims that she can manage her money and budget effectively are supported by JG. He refutes the information given to Dr Connor by the applicant about J having fallen behind in rent. That dispute appears to arise from different views about whether J was required to pay "rent" for her own house. At any rate, she stopped paying the agreed amount at some point. We make no findings about the rent payments.
The Public Advocate's view
90 The Public Advocate has told us that, despite J's insistence that she has never been financially exploited, the numerous instances cited by the applicant and other family members suggest that she has been, and remains, vulnerable to exploitation. However, in the Public Advocate's view it is not clear just what role an administrator would have; moreover, a formal appointment might take away an area of decision-making that J has some real control over and which is important for her independence.
91 In light of J's vehement opposition to the appointment of an administrator, the Public Advocate suggests that J and the trustees might be able to come to a better arrangement than at present.
The adminstration application: findings about J's capacity
92 Although J disputes her family's claims that she has had financial difficulties in the past, we are satisfied that she has had difficulties at times. We have heard varying accounts about whether or not she fell behind in her payments to the trust for rent and we make no findings about that. However, we are satisfied that J got into some difficulty with
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- the home selling business. We have taken into account the Public Advocate's comment that the numerous instances cited by the applicant and other family members suggest that she has been, and remains vulnerable to exploitation.
93 However, despite some past difficulties, we are satisfied that J is able to budget and make reasonable decisions about her finances. The fact that she went without heating to meet K's bills while he was in prison indicates she might be vulnerable to exploitation but is not of itself evidence that she cannot make reasonable decisions about financial matters.
94 J has demonstrated to us a reasonably clear understanding of her financial affairs and an ability to plan and budget. The fact that she receives advice and assistance from JG and LH does not in our view undermine her abilities. Even the applicant says only that J needs someone to guide and give her "a bit of help" with budgeting and to understand how parties in a relationship need to pull their weight together.
95 We are not satisfied that J is unable, by reason of mental disability, to make reasonable judgments about her estate.
Is J in need of an administrator
96 As the capacity requirement for the appointment of an administrator is not satisfied, we need not deal with the question of whether J is in need of an administrator. However, even had we found that J lacked the relevant capacity, we would not have declared her in need of an administrator. The trust is in the hands of the trustees. The compensation due to J will be a reasonable sum of money. However, taking into account J's insistence that her money is hers and not K's, her strongly expressed wishes for independence, and the informal supports in place, we would have found that the supports available to her provide a less restrictive means of meeting her needs than a formal appointment.
Conclusion
97 For the reasons set out above, we find that J is in need of oversight and care in the interest of her own health and safety within the meaning of s 43(1)(b)(iii) of the Act. However, we are not satisfied that she is in need of a guardian with formal legal authority to make decisions and act on her behalf.
98 We are not satisfied that J is unable, by reason of mental disability, to make reasonable judgments about her estate and that she is in need of an administrator.
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99 In reaching our decisions, we recognise the applicant's concerns for her sister and her vulnerability to exploitation and abuse. We also have taken into account J's very strongly articulated desire for independence from her family. We accept that she would feel the imposition of any appointment as "like a prison sentence". Her views and wishes are not determinative of the applications because our primary concern must be her best interests. However, we are satisfied that her best interests and her wishes can be accommodated without making the orders sought.
Orders
1. The application for the appointment of a guardian is dismissed.
2. The application for the appointment of an administrator is dismissed.
- I certify that this and the preceding [99] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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