AB
[2019] WASAT 126
•4 DECEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: AB [2019] WASAT 126
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 11 JUNE 2019 AND 22 OCTOBER 2019
DELIVERED : 4 DECEMBER 2019
FILE NO/S: GAA 3014 of 2019
MATTERAB
Represented Person
Catchwords:
Guardianship and administration - Review of orders - Wishes of represented person - Guardian to make a decision in the represented person's best interests - Protection of the represented person
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA)
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 51, s 51(1), s 51(2), s 64, s 68, s 69, s 84, s 90
Result:
Guardianship and Administration orders confirmed
Category: B
Representation:
Counsel:
| Represented Person | : |
Solicitors:
| Represented Person | : |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
AB is a young woman of 19 years of age. She has an intellectual disability and was first registered with Disability Services Commission (now Disability Services) in 2007.
AB currently lives with her mother CB and her stepfather SB.
In late 2017 Disability Services made applications for the appointment of a guardian for AB and the appointment of an administrator of her estate.
The applications were made under the Guardianship and Administration Act 1990 (WA) (GA Act).
SB had been imprisoned for sexual offences against AB and was due to be released from prison in early 2018.
It was the intention of CB (and SB) that SB return to live in the family home upon his release from prison. AB had been removed from the family home during the criminal proceedings however she had returned to live with CB whilst SB was incarcerated.
A report from the Local Coordinator of Disability Services (Local Coordinator) from August 2017 noted that Child Protection authorities had described AB's family as a closed system and that AB was isolated within the family and denied access to support services. Concern was raised by the Local Coordinator that AB's family preferred the interests of SB over her interests.
At the time AB was in receipt of the disability support pension which was managed by CB. AB was paying $100 board each fortnight and allowances were made for a mobile phone and spending. The balance of the pension was paid to a bank account in the name of SB but which funds were acknowledged by CB to belong to AB.
On 25 October 2017 the Tribunal appointed the Public Advocate as AB's limited guardian to make decisions concerning where and with whom she was to live, to determine the services to which she should have access and to decide with whom she should have contact and the extent of that contact.
The Public Trustee was appointed the plenary administrator of her estate and directed to investigate whether AB was entitled to claim for criminal injuries compensation in respect to the criminal charges and conviction of SB (CIC claim).
The guardianship and administration orders were set to be reviewed by the Tribunal in two years.
In April 2019, AB applied for review of the administration order. She was seeking to have the Public Trustee removed as administrator to be replaced by SB.
The matter was heard on 11 June 2019. The administration order was confirmed and referred to the Public Advocate for investigation.
The review of the administration order and the review of the guardianship order were heard together on 22 October 2019.
Present at the hearing were AB, CB and SB by telephone, the delegated guardian with the Public Advocate, the investigator with the Public Advocate and the legal officer with the Public Trustee.
Decision
I have decided to confirm the guardianship and administration orders. My reasons follow.
Relevant legislation
The primary concern of the Tribunal is the best interests of AB: s 4(2) of the GA Act.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of AB has expressed, in whatever manner at the time, or as gathered from her previous actions: s 4(7) of the GA Act.
AB is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
Under s 43(1)(b) of the GA Act, the Tribunal cannot consider appointing a guardian for AB unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.
Under s 64(1)(a) of the GA Act, the Tribunal cannot consider appointing an administrator of the estate of AB unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
Mental disability is defined in s 3 of the GA Act to include an intellectual disability, psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to AB the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of AB can be met in a manner less restrictive of her freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c), and s 64(1)(b) of the GA Act.
If the Tribunal decides that AB is in need of guardianship and administration orders it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of AB a plenary order should not be made. If a limited guardianship and administration orders are made the orders must place the least restriction necessary on AB: s 4(5) and s 4(6) of the GA Act.
When reviewing guardianship and administration orders the Tribunal can relevantly confirm the orders, revoke the orders and substitute new orders for them or amend the orders: s 90 of the GA Act.
Subject to any Tribunal direction, a guardian must act according to their opinion of the best interests of the represented person: s 51(1) of the GA Act.
Section 51(2) of the GA Act states:
Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if he acts as far as possible ‑
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
Hearing 11 June 2019
A report from a representative of Disability Services noted that SB returned to the family home in early 2018 on his release from prison. Disability Services commented that previous child protection and victim mediation reports identified CB's loyalties as being with SB and that due to AB's age 'there is now no formal oversight'.
Disability Services stated that AB negotiated supports through the WA National Disability Insurance Scheme (NDIS), however the supports, which included assisting AB deal with issues around the sexual abuse, had not been taken up by AB.
In a report from the agency funded by NDIS to provide support to AB (support agency), it was noted that AB had not yet engaged with the service but had recently made contact and wanted to commence service provision.
The report from the delegated guardian stated that SB is designated a reportable offender under the Community Protection (Offender Reporting) Act 2004 (WA).
In a written report the delegated guardian stated that when she first met with AB and CB, AB became distressed when CB recounted the events leading to SB's criminal charge and his imprisonment.
At a second meeting AB engaged well with the delegated guardian and it was noted that AB and CB have a close relationship.
The delegated guardian submitted that the administration order should be confirmed for two years. She supported the reappointment of the Public Trustee as the administrator of AB's estate and stated that in 2001 SB had been convicted of an offence of fraud.
In her oral evidence AB said that she could manage her money with the advice of SB and would not oppose the appointment of either CB or SB.
In his oral evidence SB stated that AB had saved over $1,000 from the allowances provided by her administrator and she had also been able to purchase a motor vehicle for $800 which was currently loaned to her sister.
As regards the conviction for fraud SB said that it involved an insurance scam that he was drawn into but in which he did not play a part.
SB supported AB in managing her money and also proposed himself as administrator. CB said that she supported what AB wanted.
The report of the trust manager of the Public Trustee stated that AB calls from time to time to request additional funds. AB is in receipt of the disability support pension, pays board of $200 per fortnight and receives a fortnightly allowance of $200. She has accumulated savings under administration of $1,512.51.
The legal officer of the Public Trustee stated that it was possible that a CIC claim could be made on behalf of AB for the offences committed by SB, however there was a real risk an award would not be made if AB and SB continued to live in the same property.
Hearing 25 October 2019
Guardianship
The delegated guardian reported that AB has consistently held the view that her preference is to live in the family home with CB and SB. She has expressed that she would like to eventually move away from the family home and when she decides to do so she would seek the guidance of CB.
When questioned on how the decision was made to have AB remain living in the family home with CB and SB, the following exchange occurred (ts 5 and 6, 25 October 2019):
[DELEGATED GUARDIAN]: There wasn't a decision made. Essentially what happened is - - -
[MEMBER]: Well, it is.
[DELEGATED GUARDIAN]: Yes.
[MEMBER]: Because the decision is that she should stay there.
[DELEGATED GUARDIAN]: Well, that's her wishes.
[MEMBER]: Yes.
[DELEGATED GUARDIAN]: But ‑ and to go back to when the application was heard [SB] was the subject of a custodial sentence. He served [his] time.
[MEMBER]: Yes.
[DELEGATED GUARDIAN]: There were discussions with police at that point around could he return to the family home. And the police view was that, yes he could. There were discussions around could a VRO [violence restraining order] be taken out on behalf of [AB]. And their view was that if she's wanting to live in the family home with her mum and her stepdad, they didn't feel that a VRO would be of any effect, and that they weren't keen on us pursuing that.
[AB] did ‑ was removed from the family home for a period before [SB] went into custody, and she was, I think, under the care of Child Protection at that point as a[n] older young person.
[MEMBER]: Yes.
[DELEGATED GUARDIAN]: And I've discussed this in meetings with her. Her consistent wish is to live in the home with her mum and stepdad. I could make all the accommodation decisions in the world, but she's not going to oblige by – she's not going to follow my decisions. I think if [AB] ‑ and she has been recently talking about maybe at some point moving out. But that's something, I think, [AB] would make those arrangements herself and with her mum. I think they could make those arrangements together.
I don't ‑ it's a difficult situation, I acknowledge that. But in the context of what was happening around the time of our appointment, and I think [SB] was released shortly after our appointment as well, he didn't apply for parole. And he did ‑ he was ‑ he's a reportable offender from that address. So we did seek guidance and advice from police around the situation. But we didn't really get a strong, I guess, advice that a VRO or removing [AB] from the address would make any – necessarily change her situation or her wishes.
The delegated guardian stated that were AB to make any further disclosures of abuse she is assured that AB's engagement with the support agency (currently two hours a week), would lead to the support agency progressing the disclosures to the relevant authorities; and further that AB has older siblings to whom she could turn for support, advice and guidance.
The delegated guardian stated that the support agency 'is aware of the situation and the issues' (ts 7, 22 October 2019).
When asked how AB is protected in the family home, CB stated. (ts 8, 22 October 2019):
[CB]: Perfectly fine. She is well and truly protected.
[MEMBER]: Okay. By whom?
[CB]: She ‑ well, she's constantly with me. She has got her older brother that lives in the family unit as well. And if she's not with me, she's with him. She's well and truly protected. She's never left on her own, or anything like that.
CB stated that if AB wanted to live away from the family home she would support her wish, however she believed that AB is happy living with her family and there is no planning taking place presently. CB said that AB has told her she will want to move away 'when she is not happy with me' (ts 9, 22 October 2019).
CB stated that she and AB attended a meeting concerning the NDIS. AB now has a support worker every Wednesday afternoon for two hours for community outings. AB is also registered with an employment agency that is in search of suitable work for her.
SB stated that he agrees with CB and that in the end the choice is with AB.
AB stated that she loves living in the family home and she is very close to CB and SB. She said that it will be a 'long time' before she seeks independence from her family (ts 10, 22 October 2019).
The delegated guardian submitted that the guardianship order should be revoked on the basis that the support agency is now involved which was not the case when the order was first made and AB has expressed her wishes clearly and consistently.
The revocation of the guardianship order is supported by AB, CB and SB.
Administration
The investigator with the Public Advocate (investigator) provided a written report and attended the hearing.
The investigator said that she spoke with AB and CB both of whom believe AB can manage her money. The conversation was by telephone and the investigator said it appeared as if AB was being prompted by CB.
When asked by the investigator what would happen if she could not manage her money, AB is reported to have said that she would seek the assistance of SB.
The investigator submitted that the administration order appointing the Public Trustee should remain in place for several reasons. The Public Trustee continues to manage the CIC claim for AB and SB is in a position of a conflict of interest in regards to it. AB is not cooperating with the claim and CB seems hostile towards its progression. There is the previous fraud conviction of SB. As regards AB's skills, she has a tendency to impulse buy and does not contribute to the costs of craft courses and other things purchased for her by CB.
It is the investigator's view that if AB eventually moves from the family home she will require a lot of support to manage her finances even though there has been some maturity on her part over the past 12 months.
The Public Trustee legal officer stated that the CIC claim has been filed to ensure it was made in time (there is a limitation period), however, it cannot progress due to AB's living situation and the restriction to the making of an award if it is deemed that SB will benefit.
The legal officer confirmed that both AB and CB are not cooperating in advancing the CIC claim.
The legal officer said that the Public Trustee has been made aware that AB was involved in a motor vehicle accident and was injured and will investigate any claim that may arise out of that event.
The legal officer stated that as the plenary administrator of AB's estate the Public Trustee has an interest in ensuring the motor vehicle AB purchased from her allowance is insured. It is an asset of her estate. In addition there is purportedly $1,500 in a Telstra account of which the Public Trustee was unaware.
CB stated that AB does not want to pursue the CIC claim and it is her choice as to what she does. CB said she is happy with AB's decision.
SB stated that in his view AB can manage her own money. She takes his and CB's advice and she has done quite well to date.
SB said that AB's motor vehicle is currently in their workshop and that AB is learning how to repair the vehicle; to change tyres for example. There is a plan for AB to obtain her driver's licence but when that happens will depend on a specialist medical assessment of her knees.
SB stated that in respect to the fraud conviction, that was many years ago, he did not receive a benefit and was not given a penalty.
SB submitted that if an administration appointment was to continue he would propose to be made AB's administrator.
When asked whether she wanted to pursue the CIC claim, AB said no. When further asked if she could give a reason for her position given that the claim might provide her with a money award, AB said 'Yes, not really. I just ‑ yes. I don't want it' (ts 17, 22 October 2019).
AB said that she currently manages her money with SB's advice. She follows the advice of SB and CB. An example was to pay extra money to Telstra so that she is currently in credit.
As for the motor vehicle, AB said it is a Hyundai sedan. She did not remember how much the vehicle cost. She hopes to get her driver's licence 'when I get my knees sorted' (ts 20, 22 October 2019). She has had some driving practice with SB, CB and her brother but no formal instruction as yet. The vehicle is not currently being driven by anyone.
Discussion of the issues
When guardianship and administration orders were first made in October 2017 findings were made that AB satisfied the requirements of s 43(1)(b)(iii) and s 64 (1)(a) of the GA Act.
She was found to be incapable of looking after her own health and safety, unable to make reasonable judgments about personal matters and in need of oversight, care or control in the interests of her own health and safety. AB was also found to be unable to make reasonable judgments about her financial affairs (her estate) by reason of her intellectual disability (mental disability).
There is no new medical or allied health evidence before the Tribunal that challenges the reports that were available to the Tribunal in 2017.
AB believes she can make her own personal and financial decisions. CB and SB have the same view and make mention of the choices AB makes and that they say she should be allowed to make.
The way CB and SB frame AB's ability to 'make choices' is by way of them generally giving her advice and she then following that advice.
The delegated guardian also mentions the choices that AB makes, especially that of continuing to live with CB and SB despite the serious offences SB committed against AB. However, it appears choice in that regard is contextualised as not necessarily a reasonable judgment on the part of AB but rather a choice that the delegated guardian cannot do anything about in a practical sense.
I note the delegated guardian's evidence that when she first met AB, and CB recounted the events that led to SB's conviction and imprisonment, that AB became distressed.
CB seems to acknowledge that AB requires protection by stating that AB is always in the company of CB or AB's brother when she is in the family home.
AB's direct evidence is that she loves living in the family home and is very close to CB and SB. She does not mention her brother.
There is the concern of LW that when she was speaking with AB on the telephone, AB was being prompted by CB.
I am satisfied on the evidence that AB is significantly persuaded by CB and SB in the decisions she makes. AB's intellectual disability limits her ability to filter that influence when formulating her own decisions.
I accept that AB is very close to CB and likely this also impacts on her ability and willingness to challenge what her mother decides from time to time.
For these reasons I am satisfied that AB is unable to make reasonable judgments concerning certain personal matters.
Given past events I am not satisfied that AB is able to protect her own health and safety in her current circumstances. She is in need of care and control in the interests of her own health and safety.
I am of the further view that without a guardianship order in place there are insufficient protections in place for AB.
Although CB says that AB is never left alone, it is the case that she allowed SB to return to the family home after his release from prison.
I do not accept that the support agency of itself provides AB with adequate protection. She is seen only two hours a week and she could choose not to continue to engage with the support agency as she has done in the past.
I accept AB presents with a difficult set of circumstances given her expressed views. However it is the responsibility of the guardian to make a decision in the best interests of AB and this may mean a decision contrary to her wishes to ensure her proper protection: s 51 of the GA Act.
The general protective intent of the GA Act was expressed by Heenan J in Re The Full Board of the Guardianship and Administration Board [2003]WASCA 268 when he said at [43]:
… it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by the unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.
In all the circumstances I must continue to appoint the Public Advocate as AB's guardian.
I see no reason to alter the order made on 25 October 2017 and confirm it setting a review in five years: s 84 of the GA Act.
The same need for protection identified by Heenan J applies in my view to AB's finances. I am satisfied that left to her own devices she would not be able to make reasonable judgments concerning the collection and expending of her social security income.
Except for the administration order, AB relies exclusively upon CB and SB for the management of her money. They have a view about AB's ongoing living arrangements which at this time does include any planning for when she may live away from her family in a more independent way.
The guardian must be alive to such a decision needing to be made at some point and will require an administrator who can give financial effect to that decision. It cannot be said that SB, who proposes himself as administrator, is compatible with the Public Advocate as AB's guardian given his history and his current views: s 68(3)(a) of the GA Act.
The decision about where AB is to live in the future has implications for her (through her administrator) pursing the CIC claim.
SB clearly has a conflict of interest in respect to the CIC claim.
I cannot revoke the administration order because that would simply place the management of AB's finances in the hands of CB and SB. Such a result would not be a less restrictive alternative to the ongoing appointment of the Public Trustee.
I will therefore confirm the appointment of the Public Trustee as the administrator of AB's estate and set a review corresponding to the review of the guardianship order.
Orders
1.The Tribunal declares that the represented person, AB is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
The Tribunal orders:
Administration
The administration order dated 11 June 2019 is revoked and substituted with an order in the following terms:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is directed to investigate whether the represented person is entitled to Criminal Injuries Compensation.
3.The administration order is to be reviewed by 28 November 2024.
Guardianship
The guardianship order dated 25 October 2017 is confirmed as follows:
4.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)To determine what contact, if any, the represented person should have with others and the extent of that contact; and
(d)To determine the services to which the represented person should have access.
5.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
6.The guardianship order is to be reviewed by 28 November 2024.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (MEMBER)
4 DECEMBER 2019
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