AM

[2015] WASAT 24

AM [2015] WASAT 24

Last Update :20/03/2015

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2015] WASAT 24
Published:
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:2199/2013, GAA:2200/2013	Heard:	20 MAY AND 8 OCTOBER 2014
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	10/03/2015
No Pages:	32	Judgment Part:	1 of 1
Result:	Public Trustee appointed as plenary administrator with directions
Category:	B

Parties & Catchwords
Summary


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : AM [2015] WASAT 24 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 20 MAY AND 8 OCTOBER 2014 DELIVERED : 10 MARCH 2015 FILE NO/S : GAA 2199 of 2013

GAA 2200 of 2013

MATTER: : AM

Represented Person

Catchwords:

Guardianship and administration ­ Mental disability ­ Psychological disorder arising from a physical injury ­ Represented person unable to make decision ­ Psychological disorder within definition of mental disability ­ Represented person in need of administrator ­ Guardianship application dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 64(1)(a), s 64(1)(b), s 65, s 68, s 68(1), s 70, s 97(2)

Result:

Public Trustee appointed as plenary administrator with directions

Summary of Tribunal's decision:

AM suffered a work related injury in 1994. He settled the compensation claim in 2010 for $2.56 million.
AM did not make any decisions about the settlement sum which remained in his solicitor's trust account. AM did not have any income and was unable to pay the mortgage on his property. The mortgagee obtained a court order for seizure and sale of AM's property. AM had accumulated other debts.
About three years after settlement, applications for guardianship and administration orders were made. An order was made under s 65 of the Guardianship and Administration Act 1990 (WA) giving the Public Trustee the authority of a plenary administrator. The Public Trustee received the settlement sum from AM's solicitor and paid the mortgage loans and other debts leaving AM with a balance of about $2 million.
AM was diagnosed with a disorder arising from the chronic and unremitting pain from the work related injury. He was assessed as having significant difficulty in retaining new information and manipulating consolidated information in his working memory. He had a generalised difficulty with goal directed thoughts, planning and organisation, which manifested as indecisiveness. AM ruminated on the work related injury and the subsequent compensation settlement. He carried contradictory beliefs that he seemingly could not reconcile; a denial that he would not get better and resentment that the compensation was less than the work injury warranted.
The Tribunal found that AM was in need of an administrator and appointed the Public Trustee in that role. The administrator was directed to give AM the opportunity to demonstrate that he could manage his day­to­day expenditure over a 12 month period.
The guardianship application was dismissed.

Category: B

Representation:

Counsel:

Represented Person : Ms M Fifield and Mr D Kalle

Solicitors:

Represented Person : Avon Legal

Case(s) referred to in decision(s):

FS [2007] WASAT 202

REASONS FOR DECISION OF THE TRIBUNAL:

Background

1 AM is a 48­year­old man who suffered a work accident in 1994. He settled a compensation claim for $2.56 million (compensation) in 2010 but gave no instructions to his solicitor (compensation solicitor) as to how the money should be disbursed.

2 In June 2013, over three years after settlement, AM's former de facto partner, SM (later replaced as applicant by the Public Advocate), filed applications for guardianship and administration orders with the Tribunal (applications). At the time the applications were made, the compensation remained in the compensation solicitor's trust account because AM had still not given any instructions as to what should happen with the funds. AM did not have any income and had accumulated debts for rates and credit card expenditure. He had not paid his mortgage and the Commonwealth Bank had taken Court action for mortgagee possession. The bank had successfully obtained orders from the Court for seizure and sale of AM's property.

3 On 18 June 2013, a member of the Tribunal made an emergency order under s 65 of the Guardianship and Administration Act 1990 (WA) (GA Act) authorising the Public Trustee to exercise all the powers and duties of a plenary administrator in respect of AM's estate.

4 Section 65 of the GA Act enables the Tribunal to exercise such of the powers conferred on it by the GA Act where it appears to the Tribunal that a person may be a person in respect of whom a declaration should be made that they are in need of an administrator of their estate and it is necessary to make immediate provision for the protection of the person's estate.

5 The applications were referred to the Public Advocate pursuant to s 97(2) of the GA Act.

6 The hearing of the applications was set for 1 August 2013.

7 The Public Trustee provided a report for the August 2013 hearing. Relevantly, the Public Trustee stated that $2.26 million had been collected from AM's compensation solicitor. The difference between the compensation and the amount received by the Public Trustee comprised recovery payments to Centrelink and Medicare, legal costs and the payment of a judgment debt.

8 The Public Trustee stated that under the authority of the s 65 order, AM's debts had been paid, and agreement had been reached with the Commonwealth Bank to pay the outstanding mortgage loans, leaving AM's property unencumbered. A fortnightly allowance was being paid to SM for AM's benefit, as she was undertaking grocery and personal shopping for AM.

9 The hearing of the applications was adjourned to enable the Tribunal to be given the medical and allied health reports held by AM's compensation solicitor and, by way of an order made on 7 November 2013, to enable AM to meet regularly with his solicitor instructed for the Tribunal proceedings; to attend counselling with a psychologist; and for the psychologist to prepare a report for the Tribunal proceedings.

10 Upon a submission from AM that the psychologist required additional time to complete her report, the Tribunal agreed to a further adjournment.

11 The applications were heard before me on 20 May 2014. Present were: AM represented by counsel (counsel); SM, former de facto partner; RM, AM's father; ES, psychologist; KA, trust manager for the Public Trustee (Public Trustee); and JK; investigator with the Public Advocate.

12 The decision was reserved on the basis that AM would be permitted to file closing submissions by 30 May 2014.

13 On 20 May 2014, AM, by his solicitor, filed submissions that I decided introduced evidence not previously before the Tribunal (final submissions); in particular, correspondence between the Public Trustee and the lawyer, a submission from SM, and reference to an internet site titled 'American RSDHope' which had implications for the evidence given by the psychologist, ES.

14 A final hearing to consider the new evidence was set for 24 July 2014.

15 On 15 July 2014, AM, by his solicitor, sought a further adjournment because he was not suited to attend a hearing in the morning due to the effects of his disability. The Tribunal initially denied the request but in a further submission, it was stated that SM could also not attend the hearing for family reasons, and AM wanted to file documentation that evidenced his enquiries with fund managers regarding investment opportunities for the compensation.

16 I granted an adjournment to an afternoon hearing on 27 August 2014.

17 On 26 August 2014, AM, by his solicitor, requested another adjournment because he was suffering from influenza resulting in heightened pain levels. A medical certificate was provided.

18 I granted an adjournment to 8 October 2014.

19 On the morning of the October hearing, AM made another request for an adjournment because he was said to be unwell and wanted the opportunity to contribute to the hearing. I declined the request. AM attended the hearing.

20 Present at the hearing on 8 October 2014 were: AM, represented by counsel (counsel); SM; ES, psychologist; CH and SW from the Public Trustee (Public Trustee); and JK, investigator with the Public Advocate.

21 The decision was reserved.

The relevant legislation

22 The relevant legislation is the GA Act.

23 The GA Act requires the Tribunal to proceed through a number of steps in order to arrive at a decision about whether to appoint a guardian and an administrator for AM.

24 A finding must first be made about AM's capacity. The starting point is that AM is presumed to be able to look after his own health and safety or make reasonable judgments about his person, and is able to make reasonable judgments about his estate: s 4(3), s 43(1)(b) and s 64(1)(a) of the GA Act.

25 The Tribunal can consider the appointment of an administrator for AM if it is satisfied that by reason of a mental disability he is unable to make reasonable judgments in respect to matters relating to all or any part of his estate: s 64(1)(a) of the GA Act. 'Mental disability' is defined in s 3 of the GA Act as including an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.

26 The Tribunal can consider the appointment of a guardian for AM if it is satisfied that he is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect of matters relating to his person; or is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.

27 The Tribunal must be further satisfied that there is a need for a guardian and an administrator to be appointed. Orders should not be made if AM's needs can be met by other means less restrictive of his freedom of decision and action: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.

28 If guardianship and administration orders are made, the Tribunal must decide what should be the scope of those orders. If AM's personal needs can be met by the making of a limited guardianship order then a plenary order should not be made: s 4(5) of the GA Act. There is no such express restriction in the making of administration orders although any limited order made should reflect the needs of AM: s 4(6) of the GA Act.

29 If a guardianship order is made then the Tribunal must decide who should be appointed. Section 44 of the GA Act provides guidance to the Tribunal in the answer to that question. The Tribunal must be satisfied that the proposed guardian will act in AM's best interests; will not be in a position where the proposed guardian's interests conflict or may conflict with his interests; and that the person otherwise be suitable to act as guardian. Suitability takes into account, as far as is possible, the desirability of preserving existing family relationships; the compatibility of the proposed guardian with AM and the person's administrator; AM's wishes; and whether the proposed guardian will be able to perform the role that he or she is given.

30 As regards the appointment of an administrator, s 68 of the GA Act requires the Tribunal to form an opinion as to whether the proposed appointee will act in the best interests of AM and be otherwise suitable to act. The Tribunal shall take into account, as far as is possible, the compatibility of the proposed appointee with AM and with the guardian; the wishes of AM; and whether the proposed appointee will be able to perform the role that he or she is given.

31 The Public Advocate is able to be appointed AM's guardian only if it is determined by the Tribunal that there is no one else suitable or willing to undertake that role: s 44(5) of the GA Act. The Public Trustee consents to his appointment as administrator should the Tribunal similarly find that no other person is suitable or willing to be appointed to that role: s 68(1) of the GA Act.

32 When going through all the steps just mentioned, the Tribunal must, as far as possible, seek to ascertain AM's views and wishes, but ultimately must make a decision as to what the Tribunal determines to be in his best interests: s 4(2) and s 4(7) of the GA Act.

Evidence and submissions

33 The Tribunal had before it medical reports made available by the solicitor who had dealt with AM's compensation action (compensation reports). The compensation reports were from consultant psychiatrists, a consultant physician and a clinical psychologist, and covered the period between 1995 and 2010.

34 The compensation reports were provided to ES as an aid to her current assessment of AM's capacity.

35 The most recent of the compensation reports date from 2009 (clinical psychologist, consultant psychiatrist and consultant physician) and 2010 (consultant psychiatrist).

36 In a report from December 2009, Dr KM, consultant physician, stated that AM suffers from chronic regional pain syndrome (CRPS) (previously known as reflex sympathetic dystrophy) secondary to a traumatic workplace accident in 1994. His overall diagnosis was one of chronic disability with a need for carer assistance and provision for mobility aids. AM was assessed as totally incapacitated for work and that the incapacity was indefinite.

37 In a report from September 2009, the clinical psychologist, SC (who had seen AM since 1995), stated that AM continued to be overwhelmed by information such that it produced a state of heightened anxiety. AM referred to his 'zombie state' that resulted from his pain and lack of sleep (no more than three hours of sleep for many years). AM would lapse into a semi­conscious state where he had no recall of time, activity or events. He had growing bouts of depression and struggled to prioritise matters. He struggled to let go of the past, including his illness and the legal (compensation) process. SC stated that AM's persisting psychological symptoms were depression, anxiety and the general deterioration of his cognitive capacities. As to AM's prognosis, SC stated:

From a psychological point of view [AM] continues to deteriorate. He is struggling in all facets of his life and it is mainly his cognitive deterioration and inability to concentrate and/or make any decisions that is going to make his life increasingly more difficult in the future. It is likely to result in him being more and more dependent on his carer.

38 In December 2009, Dr LB, consultant psychiatrist, provided an opinion after reviewing the available reports. He diagnosed AM as having Axis 1 clinical disorders (DSM-IV-TR) of somatoform pain disorder and a major depressive disorder, moderate to severe with prominent anxiety features but without psychotic symptoms. Dr LB described AM's prognosis as poor and that he remained totally incapacitated for work. He expected AM's symptoms would continue into the foreseeable future.

39 In March 2010, Dr KO, consultant psychiatrist, was asked to assess whether AM was capable of providing his compensation solicitor with instructions. He had been given the report of Dr LB and a number of the reports of SC. Relevantly Dr KO stated:

It was clear from the interview that this man, although having suffered from depressive and anxiety symptoms, certainly at the date of interview [19 March 2010] was able to talk coherently and did not evidence any significant major melancholic features. He talked of the challenge of trying to keep optimistic and battling with his pain and symptoms on a day to day basis. He was able to relay his history in a coherent manner.

In summary, although it is clear that [AM] has suffered from pain and fluctuating levels of depression and anxiety, certainly from my interview today he conducted himself as someone who is of sound mind, despite his difficulties.

40 In respect of the Tribunal proceedings, AM was referred to ES by his solicitor for the express purpose of providing an assessment of his cognitive capacity.

41 ES states that she has a post graduate background in neuropsychology and that she has clinical experience in psychological trauma, attachment theory and clinical neuropsychology.

42 ES states that she interviewed and assessed AM on 1 April 2014. She had the benefit of the compensation reports. She referred also to research material on the condition suffered by AM, complex regional pain disorder (CRPD) which she states was previously known as reflex sympathetic dystrophy.

43 To standardise the terminology of AM's condition for the purposes of these reasons (see Dr KM above), I will hereinafter refer to the condition as CRPD.

44 ES states that she has not had professional contact with a sufferer of CRPD other than AM.

45 ES states that her clinical assessment included a mental state examination of AM and several neuropsychological assessments.

46 In her report filed with the Tribunal on 19 May 2014, ES summarises her assessment as follows:

[AM]'s disability has isolated him from the general community and increased his reliance on his remaining support network. He demonstrated increased suspiciousness of professionals tasked with assisting him in the management of his legal and financial affairs. [AM] presented as extremely indecisive and demonstrated difficulty understanding simple concepts. He became agitated, loud, and verbally aggressive at times when unable to understand or maintain focus on a task or conversation. [AM] appeared to have little or no understanding of the purpose of the assessment by the end of the appointment, despite the author painstakingly explaining the process to him and re-writing the consent form in a manner that he understood. [AM] presented as focused on the past, with paranoid beliefs about the causality of his injury, and ruminated about perceived injustices related to his claim. [AM] had significant difficulty retaining new information in working memory (especially emotionally neutral), or manipulating consolidated knowledge in working memory. These impaired cognitive processes underpin [AM]'s general difficulty with goal directed thoughts; providing value laden information; grasping novel concepts and information; planning and organization which then manifests as indecisiveness. The research indicates that 65% of patients with CRPD suffer from these cognitive deficits to varying degree[s] due to inflammation of the Central Nervous System including the brain; chronic severe pain; and psychological/psychiatric disorders. [AM] experiences swelling of limbs, though it is beyond the author's field of expertise to assess inflammation of the CNS or brain. [AM] reported severe, unremitting chronic pain which is not well controlled by medication. It is the author's opinion that [AM] met criteria for a post-trauma syndrome, he is chronically sleep deprived due to pain, and at least in the past, nightmares of the accident. [AM] met criteria for Adjustment Disorder. He expressed anger, resentment, and distrust that is becoming more pervasive the longer he cannot reconcile the contradictory beliefs being his denial that he is not going to get better and his resentment that his compensation payout was less than he feels his injury warranted. The author observed that [AM] was easily confused and overwhelmed, and would be highly vulnerable should anyone who wished to manipulate him ever [win] his trust.

47 In her oral evidence, ES states that because of the CRPD, AM has an impaired ability to stay on task and to be fully aware of the issues under discussion. His condition impacts on his ability to focus on information and integrate that information into a coherent whole so that a decision can be made, and plans formulated and put into practice.

48 ES states that in her interview with AM, he was able to discuss such matters as his recreation (fishing with a friend) and the advice he was receiving from his support network; however, when she brought up the compensation, the conversation would quickly revert to AM ruminating about the past and he would demonstrate a strong degree of paranoia.

49 ES states that when she asked AM about his finances and property and what he would do with the compensation, he would find these questions too difficult to answer and would become tangential and overly assertive.

50 ES states that it is her understanding that the more entrenched the CRPD the more difficult it is to treat.

51 In responding to the question of whether AM's condition means he could have good days and bad days relative to any confusion he may have and an inability to respond, ES states that the research shows that the cognitive deficits described in her report as applying to AM (see above), characterised by her as dysexecutive syndrome, is not a fluctuating syndrome; it is either present or it is not present. It is the opinion of ES that the condition is present in AM.

52 ES states that on a day where AM's pain is less than usual, he may present superficially as a little more controlled; however:

… once you start touching on those topics of what's your house worth, how are you going to budget, you know, can't ­ haven't got my questions right in front of me; I've got them somewhere ­ then the same ­ is going to trigger the same responses, because the same ­ in a ­ the same cognitive decline will be there, and that's going to have the same emotional response. When a person can't respond in the way that they normally could or they feel like they're being asked more of them than they can actually provide, then it's a distressing thing.
(T:80; 08.10.14)

53 Counsel submits that AM has let go of the past and that he has made efforts over many months to focus on the future, including obtaining advice from financial advisors on how best to invest the compensation. He has been to see a number of financial planners and has expressed a preference for a particular bank.

54 ES questions whether AM is or has been self-motivated to obtain financial advice and questions the assistance he might have had to progress this task.

55 Counsel states that AM spontaneously contacted her firm for assistance and that in the process of assisting him, the seeking of financial advice had been put to him.

56 As to obtaining financial advice in respect of the compensation, AM states:

I had a meeting several years ago with a firm in Perth who specialise in dealing with [the] disabled and financial advisement and so forth. I was very impressed with those people. I just haven't had the opportunity and the time to go through a mountain of paperwork to find the name and address of those people to date. I feel that it's important that I get more than one opinion.

I also mentioned at the meeting with [law firm] that if I feel that I may prefer to go with the Perth company, for example, then perhaps it might be an option that I could work with them both because of the fact that I have difficulty with the travelling side of things. And that having someone on­hand nearby to me that might be able to work with ­ in conjunction with another firm if that ­ you know, if that was a possibility as well. They're all possibilities to which I'm ­ openly been exploring for some time and been looking into for some time and trying to work out what the best thing to do is.

… But, as I said, I've had meetings years ago with the various companies. So that's been a line of thought for a very, very long time and the condition I'm in for a very long time, not to have ­ you know, the ­ as I say, even when all this eventuated not to rush into anything and to take a step back and ­ have … a cooling­off period as such.
(T:26:27:28; 20.05.14)

57 ES states that her assessment does not indicate that AM has become more forward thinking, and that the contradictory beliefs held by AM mentioned in her report (see above) has left him 'psychologically paralysed' and were the reasons given by AM as to why he did not access the compensation from when the settlement was made in 2010 (T:17:18 20.05.14).

58 In the final submissions AM contends that the Tribunal should not place significant weight on the evidence of ES because she has no expertise in dealing with CRPD, as she has not assessed any other person with that condition. It is further contended that the assessment of ES that AM is deteriorating cannot be so claimed because ES has no point of reference for AM, including whether on the day of the interview he was having a good or bad day.

59 Counsel also submits that because ES only saw AM the once, she

60 '… formed a view on his presentation which, from the reports provided to her, she must have expected' (paragraph 20 of the submission dated 30 May 2014).

61 AM submits that that the compensation reports do not evidence the existence of an underlying or pre-existing psychological disorder suffered by him prior to the work related accident, but that it is accepted that his condition can lead to depression due to heightened pain.

62 Counsel refers to the evidence of Dr A, general practitioner, that AM does not have any impairment of his cognitive ability or mental function.

63 Counsel submits that there is no evidence that AM suffers from a mental disability as defined in the GA Act.

… [AM] suffers from [a] physical condition that, due to pain levels and other factors, causes [him] to vacillate about making decisions. He has demonstrated a capacity to make decisions in his own time and usually after significant investigation.
(Paragraph 26 of the submission dated 30 May 2014)

64 ES accepts that the depression, anxiety and other aspects of the CRPD arise from AM's physical illness:

… as I said in my report, there's three things that are contributing to [AM]'s cognitive disability ­ cognitive impairment at this point in time. One of them is his pain which is absolutely horrendous, and there's no other way to put it. The other is some psychiatric problems and they're outlined by other professionals and I could have gone on to do a psychological assessment, but I didn't because, you know, I diagnosed adjustment disorder, but then I've read this, and there's far more diagnosis in that ­ in the reports you provided me.

And then there is the issue of sleep deprivation, and everyone knows that if you're sleep deprived long enough, then you are going to be unable to think clearly and make decisions. It's a form of torture that, you know, is used by unethical people, and [AM] himself said that he was unable to get more than, you know, two to three hours sleep due to his pain, and the fourth component is the swelling that occurs in the spinal cord and up through specific parts of the brain which is described in two of the journal articles that I have provided, and I'm quite happy to leave with the [T]ribunal if they would like to review those.

[Counsel]: But, again, and I don't mean to labour this point, [AM] may have a day when those issues of pain, those issues of anxiety are not as great as they were on another day and even function quite well, can make decisions for himself and doesn't have that impairment with respect to what decisions are in his best interest[s]. You would expect that, wouldn't you?

[ES]: Well, [AM] made it very clear to me that he's not sleeping more than two to three hours a night, ever. There is no way that I can imagine a person ­ in my professional opinion, he cannot be making decisions with that amount of sleep, and then to move on, someone who is suffering from major depression and also suffering from the swelling of which is described in the ­ is quite complex ­ swelling of the nervous system in the brain, that doesn't just go away, you know, like pain. It doesn't increase one day and decrease the next. It's a permanent part of the condition. It's the up regulation which [AM] is suffering where any sensation feels like pain, just the slightest touch. Well, his whole nervous system has become so out of ­ has become so deregulated that his whole ­ parts of the brain are now hardwired in a different way, and that is something which doesn't change day by day.
(T:83:84; 08.10.14)

65 In response to the final submissions, ES states that a one­off assessment is not unusual when undertaking forensic assessments. She says she was confident in arriving at her opinion of AM's mental state with the information available, which included seeing AM one time.

66 As to the submission of AM that she does not have the expertise to give an opinion on CRPD, ES states that as a clinical psychologist with training in neuropsychology, she has the expertise to assess people with a range of disorders which includes researching the particular condition and being able to assess symptoms against established criteria. ES states that she does specialise in treating people with chronic pain although not to the degree suffered by AM.

67 ES disagrees with AM's submission that he had no prior underlying psychological disorder. She submits that the compensation reports detail disorders such as a major depressive disorder, panic and anxiety attacks and a somatoform disorder. ES states that these disorders were all subsequent to AM's injury and are consistent with someone diagnosed with CRPD.

68 As to the internet document filed by AM titled 'American RSDHope', ES states that she agrees with what the author of the article considers part of the CRPD, including depression, insomnia, short-term memory problems, agitation, irritability and even poor judgment.

69 ES states that she did have a point of reference to judge AM's progression of his condition, that being the compensation reports which detailed assessments by other professionals of AM's condition over a period of time. By using the compensation reports and her own assessment, ES states that she was able to chart an 'obvious cognitive decline' in AM.

70 As evidence of his ability to manage the compensation and to complete tasks after investigating what he needs, AM states:

… I have no intentions whatsoever of just go out and willy-nilly spending money. If anything I've, you know, had to get by on a minimum of budget for a long time, and it's had the effect on me of, you know, I ­ if I ­ I do my best to try to save money where I can and, you know, with regards to if it means buying something, wait for a sale to come on for example. Things like that. You know, if ­ I guess I've always maintained in my mind that if and when things eventuated then I would have a period of time where I would just put it somewhere safe, and treat things still, you know, in a manner that perhaps I'm still thinking the way I have on, you know, on a small budget for a long time, and just keep ­ continue to get by and then look at short­term and also long-term plans. Short-term being that I need to, you know, sort out a few issues to get me through that short-term period, and long-term so that I don't go out and waste a lot of money and so that I can make ­ you know, gather information and gather knowledge and do my best to make it as best informed a decision as possible and not just buy things because of the sake that the money is there to go and buy things that I need now. I don't think that would help. And with all that I feel that seeking the appropriate professional help from various people, which I'm slowly learning about, or doing my best to, would be the correct way to handle things.

MANSVELD MR: Yes. Can I just ask you this: you say that a [solicitor] made the appointment for you. Who brought up the issue of financial planner?

[AM]: I did. (indistinct) as best as I can recall that. That's along with the litigation process. But, as I said, I've had meetings years ago with the various companies. So that's been a line of thought for a very, very long time and the condition I'm in for a very long time, not to have ­ you know, the ­ as I say, even when all this eventuated not to rush into anything and to take a step back and - - -

…

Like a cooling-off period as such.

MANSVELD MR: Well, what prompted you to do it - - -

[AM]: And gain all the – you know, gain all the professional opinions and stuff that I need. And if things work out for me, well, this is the best thing that I could possibly do and go with it and, you know, if 12 months down the track, you know, I need to review that and maybe change to somebody else then I would do that as well. Obviously, you know, I don't want to be locked into a way of thinking.

MANSVELD MR: What prompted you to seek financial planning recently rather than earlier?

[AM]: Sorry, how do you mean that?

MANSVELD MR: Well, you had a recent appointment with a financial planner. Why now and not earlier?

[AM]: Oh look, it takes me sort of ­ it takes me some time at times to do things. You know, that's the main (indistinct) of the condition. It makes it very difficult to get out. You know, there's a number of things I've been dealing with. You know, looking into, as I say, short-term and the long­term, looking at ­ trying to learn about ­ which I've never done is, you know, to buy ­ bring stuff in from overseas but (indistinct) that get ­ replace my hoist, for example, at the moment. You know, for a lot of, lot of, lot of thousands of dollars cheaper than what it would be if I did it locally, which will give me a short-term answer, and then long-term to look at, you know, a vehicle that I can drive my wheelchair into. They have better ­ all this is research that, anyhow, that I'm probably the best person qualified to look into because I know how things affect me. And it's not a matter of just going and buying a wheelchair or buying a vehicle, because the vehicle needs to fit the wheelchair and the wheelchair needs to fit the vehicle, type of thing, you know.

…

It's only that I stumbled across these hoists, for example. I've ­ that, you know, they're thousands, tens of thousands of dollars cheaper than buying them locally. And I've also ­ you know, with that I've rung a firm that sell and install them. I think they were ­ don't quote me on it ­ but I think they're in Brisbane, or I can't remember for sure. I do have the notes elsewhere - - -

…

- - - but not on me ­ to ­ and I, you know, discussed it with them, this situation, and, you know, they have advised me a few things that I need to do a bit more research on with regards to import freight, all that sort of stuff. So I'm ­ once again, I've [tried] ­ I've reached out and seeked [sic] a bit of guidance from people, and that's all very new this sort of thing for me, so it is quite a big challenge, but I try to see it positively. And with that hope that I can achieve before I miss out on them, as such.

…

It is, as I say, I ­ I'm going through a big learning curve over this particular issue and I've had to reach out to people for assistance because it's all new.

You know, I’ve never had any involvement in it.

…

I do know people that in their line of work they do know a bit ­ they do do importing/exporting. I also have learnt through this that you have ­ you've got to engage either [an] importing broker or a freight company that do the brokering. And also learnt that there's a percentage of ­ the bank takes for the exchange rate on the dollars. So they're all things I'm learning and trying to look into that are all ­ at this point time it looks like a very good move to me which would solve the short-term issue. It will also solve the issue of perhaps setting up a second vehicle for the time being sort of, you know, but not going to great lengths of expense to do that.

MANSVELD MR: [AM], the [P]ublic [T]rustee has been managing your funds since June last year. Have you had any contact with the [P]ublic [T]rustee, the trust office, or trust manager, to deal with some of these short­term issues, these short-term needs of yours? The hoist, or any wheelchair – special wheelchair or any other need that you might have in the short-term? Have you spoken with the trust manager about - - -

[AM]: Yes, I have.

MANSVELD MR: - - - funds that might be released?

[AM]: Yes, I have made attempts with regard to those issues. At one point I also found a second-hand wheelchair which – or two at the time – which are very rare to come up where they actually meet the same specifications as mine, and I had one wind-up which could have been delivered to me for $1500 which also included a spare controller that was worth $900 alone. I had extensive phone calls direct with the fellow. I looked at a lot of very close-up photos of the wheelchair. And I basically missed out on it because I got misunderstood by the – or whatever happened, I'm not really sure, but with regards to the fellow from the trustee. And at the end of the day I was just trying to get a spare one because mine needs work and I need to get by for the short-term so I don't have to rush into spending a lot of money on a wheelchair, for example, at the moment without being able to have sufficient time to do some research and make sure that I'm making the right purchase, not just as – not just being advised by the trust to purchase one because the money is there and I can go and get it.

…

(indistinct) right wheelchair not only for my needs but it also needs to be the right wheelchair for a vehicle, etcetera. There's a lot to it.

…

I have managed, you know, for 20-odd – or way past – obviously a lot longer than 20-odd years, but since the accident, since the injury, I have managed to, you know, pay my bills, get by, and so on and so forth. It's only in the time that I was pressured into a situation of a settlement that I have then, due to things being said and done and so forth all of the time [been] made to question a lot. And that's not living in the past or anything, that's just questioning, you know – because, you know, you want to make sure you do things – you make the right choices. And when you feel like you have been forced or pressured into one and not necessarily made an informed choice, then at least you're doing a bit of questioning, I suppose.

I have managed for a lot of years myself. I always, you know, paid my bills and managed. You know, if I've been late I've managed to organise extensions and so forth. But at the end of the day I've got by. It's only since this settlement took place the – the other thing that I would like to comment on is the things that were said with regards to the bank and the mortgage, which is what led to this position. That apparently the trustee had made arrangements [which] were the same arrangements that I attempted to make with the bank, yet they were unwilling to do that with me yet they would do it for the trustee and hold off.

And I don't know what has gone on there, but things weren't right, and I was definitely able, at the point, to try to avoid that situation, but it was difficult because of occurrences going on around – you know, the things that were out of my control because they were being instigated by others. And you can only do what – you know, you can only do your best with what's within your control when you've got a, you know, a lot that's out of your control is going against you.

Sometimes it is hard to cope and I'm disappointed because, you know, for at least two decades of – since this injury has occurred I've managed to get by. And the whole aim of going back into the legal system in the first place was the idea of being able to stand on my own two feet and not rely – not have to have (indistinct), you know, (indistinct) or a Government hand-out or anything, because that's how I feel. You know, I want to be able to stand on my own two feet and – in some way, and, you know, and basically all that I feel that's happening here is that with all the involvement and all of these people it's stopping me achieving what I need to achieve, i.e., you know, seeing pain specialists and so forth, because I'm tied up with trying to deal with a whole pile of what appears to be incorrect non-right information going on that's led to this whole situation that appears to be snowballing out of control, which is out of my control. Well, to a degree.

I've obviously tried to do something by seeking advice and trying to show otherwise here. But from what I'm hearing that people are saying, the advocate, the – they – I don't know. They seem to have a lot of information that's incorrect. I know I get muddled up and say a few things too, but at the same time I do have a reasonable idea of what I've said and what I haven't said also. And I don’t know where they're getting all of this information, but I know that it's other people – it seems to be other people's perceptions of things as opposed to the factual and what is correct. (T:27-30 and 52-53; 20.05.14).

71 Counsel submits that although AM suffers a pain disorder and that the pain is incessant (and at times all encompassing), the pain does not prevent him from doing things.

72 Counsel submits that AM makes decisions incidental to day­to­day living such as purchasing clothes and going to the shops. He has purchased new tyres for his car and fitted the tyres; he is looking for a new computer, sourced his own telephone; and he has contacted contractors in relation to his sewerage and hot water systems.

73 Counsel states that in the time the applications have been before the Tribunal, AM has had good support from two main sources ­ SM and his solicitor and that the support and guidance remains available in an ongoing way. Counsel submits that the compensation was never at risk, given that it was left in the compensation solicitor's trust account. It is accepted that AM's property was at risk at the time the applications were made because he had not paid the mortgage but that risk is no longer present because the mortgage loans have been paid.

74 Counsel submits that there is no evidence that AM has been wasteful with his funds; every request he has made of the Public Trustee has been prudent. It is contended that AM has met resistance from the Public Trustee and that the relationship with the trust manager has broken down. The final submissions include letters to the Public Trustee from AM's solicitors from March 2014 in which AM seeks a lump sum payment of $40,000 for the purchase of capital items and an increase in his weekly allowance. The request was refused (unreasonably says AM) on the basis that an advance of that amount was too large to give to AM for his sole control and that an increase in the weekly allowance would require a supporting budget.

75 The Public Trustee states that at the time of the s 65 order, the Commonwealth Bank had obtained a Court order for seizure and sale of AM's property because of non-payment of mortgage loans. AM had other outstanding accounts that had not been paid for some years. AM had no form of income as he had been precluded from continuing to receive a Centrelink pension on the settlement of the compensation claim. On investigation, the Public Trustee determined that AM had $2.26 million to his credit in a non-interest bearing trust account with the compensation solicitor, and that the funds had not been accessed by AM for the three years after the compensation settlement.

76 As to the contact with AM, the Public Trustee states (and AM responds):

… I have had numerous telephone discussions with [AM] on a number of matters. Most to do with his need for a hoist for ­ a replacement hoist for his car, for his wheelchair. He's in desperate need of a new wheelchair and a number of other items in relation to his home that may require replacement or modification to suit his current needs. There were some issues with respect to the wheelchair, as [AM] has put forward. Those issues were that the [P]ublic [T]rustee has a standard policy and procedure whereby before we proceed with the purchase of specific medical equipment that an occupational therapist provides a brief report and finds that it is suitable for that person's needs.

The wheelchair that [AM] speaks of was advertised online on the internet. He had not physically sighted, other than photos, this particular equipment. He hadn't sought any professional advice as to whether or not this particular device was suitable for his needs. We did ask that [AM] speak with an occupational therapist in order to determine what was most suitable for his current needs now, because it may be that a totally different chair may be required for his needs.

[AM] has previously had some issues, or he has reported having some issues, with an occupational therapist in outpatient treatment at the [public hospital] and was reluctant to go back and utilise their services. There are, obviously, other qualified occupational therapists in the region where he resides, but to date we're not aware that he has approached any of them with respect to any of the medical equipment that he may require.

In relation to the hoist, [AM] has raised that he has found a hoist that may be suitable, online, from overseas, or perhaps from the eastern states. He didn't clarify that with me. But I guess I have some concerns with that in itself in that his initial hoist was installed by a local company here in Western Australia that's very reputable and [that] we deal with on a regular basis. [AM] is suspicious of their activities. That's a comment that he made directly. That's just an observation. He feels that he doesn't want to go with that particular supplier and he will source these particular items online.

I did suggest to [AM] that there is some danger with that in that [the] particular hoist that he may source online may not meet Australian design requirements, may not physically meet the requirements of his vehicle. These are things that [AM] has said to me that he will continue to research. I have asked him whether or not he would happy for us to make those inquiries on his behalf with various suppliers here in Western Australia. He declined that invitation and he said that he would certainly look into this himself. This is something that he's capable of doing and that he would prefer to do that on his own merits.

MANSVELD MR: How long have those discussions been going on?

[PUBLIC TRUSTEE]: They've been going on for many months now.

…

[AM]: I just wanted to make comment because of this is what I feel is occurring with [the Public Trustee] is that there is miscommunication happening by far. The – with regards to the wheelchair, I've tried to discuss that with him but he agrees to disagree with me rather as opposed to letting me clarify what actually occurred at the time. It wasn't – although the wheelchair was advertised on the internet I had direct contact a number of times by phone with the person that had it. This person actually is a retired fellow that gets these chairs and cleans them up and then on-sells them with, you know, minimal – because he likes to do that to assist people.

The – the chair that I currently have was done with an occupational therapist report. This particular wheelchair was identical bar the only difference being is there was a slight difference in the seating arrangement on that wheelchair, of which that is adjustable and could be reupholstered accordingly but, for all intents and purposes, that wheelchair was all in good working order as opposed to the problems that I have with the current one.

So for the short-term goal, for $1500, that would have been an ideal spare wheelchair to give me the time to work through things.

With regards to having to see an occupational therapist, that has been done in the past. I mean, at the end of the day, if anyone knows what is required then it's me and, you know, I can do that and, if need be, at that point then deal with an occupational therapist, but that cost extra money as well. And most of the wheelchair companies have OTs on their staff to deal with.

…

The other comment that I would like to pick up on is, I asked for a copy of the – the – how the trust invests your money. That was – and as it was pointed out to me at the meeting with the advisor that, you know, I've just been told that the money is Government guaranteed.

That, for all intents and purposes, is not entirely the case in so as it says in black and white of their own written literature, that depending at what – what point of – or how that money is invested I have, I think, four or five tiers of investment and it's only the lower tier that is Government supported. And that is actually at a lower rate than the majority of standard banks will give interest on.

And – but what I understand, the, you know – well, there are a lot of other ways to have funding guaranteed but also to set up things in such a manner so that you can be higher interest if – with a – you know, a smaller amount. And, in turn, offset it, if that's the right terminology, offset it, you know, with the tier type assistance. And, in turn, hopefully, you know, keep me going the rest of my life without – you know, so I can stand on my own two feet and at least have some pride in matters as such. It's hard when you're – would love to go out and work but you can’t because your body won't let you and you've got to be able to stand on your own two feet somehow.

…

Sorry, the point I'm trying to make, with due respect to [the Public Trustee], I did make a phone call to him.

I have made attempts to talk with him about things. I don't know what it is, but we don't – he doesn't – we don't seem to see eye to eye on anything and there's definite issues when it comes to trying to discuss things with him.

I did approach him not so long ago and said, well let's just try this again, but [from] what I'm hearing said today I don't feel that perhaps I've made any headway there. And the one thing that I do need to feel is comfortable and with, you know, whoever it is that's advising me and looking out for me and investing the money as such.
(T:33-36; 20.05.14)

77 SM submits that in her view, AM has recently been managing his affairs 'quite well'.

78 In the final submissions, SM states that AM has progressed significantly since the applications were made. He assists with the shopping. SM states that when she needed hospitalisation for surgery in late 2013 and early 2014, AM coped 'amazingly'.

79 SM states that AM is working with his solicitor to have a pain specialist to attend at his home because he does not travel long distances very well.

80 As to the compensation, SM states:

As far as I can recall no report says [AM] paid all his bills & managed his finances (which he did) up until his settlement & a while afterward. [AM]'s court case had a rather unusual & not quite right ending under duress wherein [AM] had a temporary lapse of reasoning due to the circumstances of the settlement. He has now had some legal advice on this matter. I believe [AM] now understands. With the help of a financial advisor & an accountant/book-keeper who will work with [AM], I believe he will have no problem with his finances. The [P]ublic [T]rustee isn't helping him plan anything, just blocking him every time he makes a decision.

81 SM submits that as AM's carer, she is in the best position to give an accurate view on his functioning. She states that the original reasons for the applications are gone and that guardianship and administration orders are not needed.

The Public Advocate

82 The applications were referred to the Public Advocate. In the conduct of her investigation, JK, the representative of the Public Advocate, submits as follows.

83 JK states that at the time the referral was first made in June 2013 contact was made with SM who advised that she would accompany AM to his medical appointments. AM was said to be very concerned about the level of pain he was experiencing and the medications prescribed for pain relief. SM was having difficulty keeping AM focused on these matters when he saw Dr A, his general practitoner.

84 JK states that after the hearing on 1 August 2013, she was able to make contact with AM. She mentions a two hour telephone conversation in which the compensation, issues with the Public Trustee and medical issues were discussed. JK states:

And what I found was that we would go around to the same points of view each time in discussing these matters with [AM] and that he really found it very difficult, and was quite indecisive, about where to take these matters next and even to the point of engaging with a solicitor. So this became quite difficult.
(T:39; 20.05.14)

85 JK submits that AM would benefit from support services as he is very isolated and largely dependent upon SM for the care needs he requires. She states that AM has not had the benefit of a substantive professional assessment as to his overall medical and support needs and that she would support a case management agency being contracted to arrange for that assessment to occur.

86 The initial position of JK was that AM is in need of a guardian to 'assist him with his treatment and health care decisions' as he appeared to be reluctant to engage with specialist medical and other services who could assist him. An example cited by JK is where Dr A had attempted to have AM speak with a pain specialist by video conference from Perth but that AM seemed unable to accept this proposal. However, if it can be accepted that AM's support from the law firm is looking into a pain specialist attending to him in the home, then it is the view of JK that a medical treatment function would not be needed.

87 As regards the application for an administration order, JK states that AM has deliberated for almost a year about the compensation and, in her discussions with him, she finds that he has tended to return to his original decision to accept the settlement, which he regards as a mistake. JK states that the necessary repairs to the property have taken considerable time for AM to arrange.

88 The initial position of JK was that although AM appeared to be frugally managing the allowance he received from the Public Trustee, she was of the view that AM did not fully appreciate or understand all that is required to suitably invest the compensation so that it would be available for his lifetime and to undertake the necessary financial planning.

89 In response to JK's initial position, AM states:

… I have managed for a lot of years myself. I always, you know, paid my bills and managed. You know, if I've been late I've managed to organise extensions and so forth.

But at the end of the day I've got by. It's only since this settlement took place the – the other thing that I would like to comment on is the things that were said with regards to the bank and the mortgage, which is what led to this position. That apparently the trustee had made arrangements [which] were the same arrangements that I attempted to make with the bank, yet they were unwilling to do that with me yet they would do it for the trustee and hold off.

And I don't know what has gone on there, but things weren't right, and I was definitely able, at the point, to try to avoid that situation, but it was difficult because of occurrences going on around – you know, the things that were out of my control because they were being instigated by others. And you can only do what – you know, you can only do your best with what's within your control when you've got a, you know, a lot that’s out of your control is going against you.

Sometimes it is hard to cope and I'm disappointed because, you know, for at least two decades of – since this injury has occurred I've managed to get by. And the whole aim of going back into the legal system in the first place was the idea of being able to stand on my own two feet and not rely ­ not have to have (indistinct), you know, (indistinct) or a Government hand-out or anything, because that's how I feel. You know, I want to be able to stand on my own two feet and – in some way, and, you know, and basically all that I feel that's happening here is that with all the involvement and all of these people it's stopping me achieving what I need to achieve, i.e., you know, seeing pain specialists and so forth, because I'm tied up with trying to deal with a whole pile of what appears to be incorrect non-right information going on that's led to this whole situation that appears to be snowballing out of control, which is out of my control. Well, to a degree.

I've obviously tried to do something by seeking advice and trying to show otherwise here. But from what I'm hearing that people are saying, the advocate, the – they – I don't know. They seem to have a lot of information that's incorrect. I know I get muddled up and say a few things too, but at the same time I do have a reasonable idea of what I've said and what I haven't said also. And I don't know where they're getting all of this information, but I know that it's other people – it seems to be other people's perceptions of things as opposed to the factual and what is correct.
(T:52-53; 20.05.14)

90 On the subsequent information that AM had reportedly initiated appointments with financial planners and that he appeared to ask appropriate questions in regard to his planning for the future and if he could continue to receive support from the law firm in respect to the compensation, JK submits that such a process may represent a less restrictive alternative to the appointment of an administrator. JK states:

You know, [AM] can be confused at times because of the impact of the level of pain that his body is undergoing. So I do think that if there was that assistance that would be provided as a guidance to him in looking at his future investments and what's the best course of action to take on that, I guess it could be considered that this may be a lesser restrictive alternative to considering the appointment of an administrator. It is quite a complex situation primarily because of his diagnosed condition and how that impacts on him on a day-to-day basis, good days and bad days, as has been stated. I do understand the views of [ES] in that in her view she feels from her assessments that [AM] does have some cognitive decline there. I'm not sure if [AM] without support and guidance would perhaps be able to continue in situations where he might be overwhelmed with information. I'm not sure if he didn't have a legal adviser support that – whether he would be able to continue on an ongoing basis if he was presented with information that may overwhelm him in certain situations. That's why I feel it would be in his best interests to continue having that legal representation while he goes through that process who can have a look at those documents and advise him accordingly if it is a course of action that he would want to take …
(T:91:92; 08.10.14)

Decision of the Tribunal

91 It is important in my view, to return to the circumstances of AM as they were at the time the applications were made in June 2013 because they can provide some indicators to the present and future.

92 AM had settled a workers compensation claim for $2.56 million in 2010 and had not accessed any of the compensation for three years. There was no indication he was about to do so and his financial circumstances were so dire that SM felt the need to have decisions forced upon him by making the applications. AM was about to lose his property through a mortgagee sale even though he had significant funds at his disposal. He had not derived an income since the settlement because he was precluded from receiving any social security payment. The compensation was not earning any interest in the compensation solicitor's trust account.

93 It appears AM had been living on the goodwill of SM.

94 The evidence of AM is that he had had meetings with financial advisors 'years ago' and that the investment of the compensation 'had been a line of thought for a very, very long time'.

95 The fact is that any thinking that AM might have had in respect to the compensation and his future and any preliminary investigations he might have undertaken did not result in a decision being made.

96 AM appeared to be immobilised in his decision-making capacity.

97 These circumstances of AM are in accord with some of what is said in the compensation reports as to why he was finding it impossible to make a decision about the compensation. In particular, the assessment of the clinical psychologist, SC, in September 2009 gives some indication of the then mental state of AM. AM was said to be overwhelmed by information, creating a heightened state of anxiety; he was depressed; and there was a general decline in his cognitive capacities. He found it difficult to concentrate and prioritise matters. Importantly, SC assessed AM as having an inability to make any decision and that he was struggling to let go of the past. SC concluded that all of this would make AM's life increasingly difficult into the future.

98 In December 2009, Dr LB, the psychiatrist, placed the symptoms of AM's mental state within the context of a psychiatric diagnosis.

99 The assessment of Dr KO, psychiatrist, in March 2010 gave an optimistic assessment of AM's then mental state. Although asked to assess AM on the narrow question of whether he could instruct his compensation solicitor his opinion was that AM was of 'sound mind, despite his difficulties'.

100 I prefer the assessment of SC as representing AM's mental state at the time of the applications. He had attended AM since 1995 and had a clinical understanding of him over an extended period of time. Importantly, unlike the assessment of Dr KO, the assessment of SC is consistent with what happened in AM's decision-making subsequent to the settlement of the worker's compensation claim in 2010.

101 There are a number of strands to the submission of AM that he is not in need of an administrator of his estate or in need of a guardian.

102 The first is that he does not have a mental disability as defined in the GA Act. It is submitted by AM that he has a serious physical condition the symptoms of which cause him to vacillate in his decision-making but which do not prevent him from ultimately making a decision about important life matters.

103 Secondly, the current assessment of ES should not be given much weight because she does not have the relevant expertise to assess the effects of CRPD and her assessment after having only seen AM once, is overly influenced by the compensation reports.

104 Thirdly, AM has sought assistance to progress planning for the compensation and for his health matters, and the assistance is ongoing.

105 Fourthly, AM is making day­to­day decisions appropriately regarding his health and financial needs. In regards to the former, ES has regular contact with Dr A, AM's general practitioner, and there is the plan to investigate whether a pain specialist can attend AM at his home. As to the latter, AM has obtained recent advice from financial planners and he is managing the allowance provided by the Public Trustee. AM submits that he is being thwarted by the Public Trustee in taking greater responsibility for his expenditure. It is also submitted that AM is frugal in his expenditure and that the reason for the applications (the likely loss of his property) has been dealt with and his estate is otherwise not at any risk.

106 I will deal with each in turn.

107 I am satisfied that AM has a mental disability as contemplated by the GA Act. AM has the disorder, CRPD which in 2009 was also diagnosed in terms of a psychiatric illness although that diagnosis was not sustained in 2010. The fact that the origin of his disorder is a physical condition (the severe and chronic pain arising from the work related injury) is not, in my view, a barrier to finding that a mental disability exists. There are two points I will make in respect to this. The first is that although a psychological condition or disorder is not explicitly specified in the definition of 'mental disability' in the GA Act, the definition as given is not exhaustive as to the conditions that may be encompassed within it. If I accept that the effects of AM's disorder is debilitating on his decision-making capacity, as no doubt is the case, then I see no reason why it should be excluded from the range of impairments that sit comfortably within the intended scope of the mental disability definition.

108 Secondly, there is likely a physical cause to all conditions that affect a person's mental state either; a direct physical assault on the brain or indirectly through an illness or condition that interferes with the processes and stability of the brain. I am satisfied that the intention of the GA Act, as protective legislation, is to include within its ambit those conditions or disorders that fundamentally interfere in a person's mental functioning.

109 I do not accept AM's argument that the assessment of ES should not be given much weight for the reasons he gives. ES is a qualified clinical psychologist. She was contacted by AM to provide an assessment of his capacity; I can only assume that was done with an understanding and acceptance of her expertise. The fact that the assessment of ES is congruent with the predominant view in the compensation reports is not evidence that ES did not make her own assessment. I accept the submission of ES that a single interview which included neuropsychological testing, taken together with earlier assessments and research on the relevant condition (CRPD) was sufficient for an experienced clinical psychologist such as ES to form a view as to AM's ability to make decisions.

110 The expert evidence of ES, although contested by AM, was not subject to any contrary expert opinion. I accept the evidence of ES and the assessment she has made of AM's capacity.

111 The assessment of ES can be summarised in the following way. AM suffers from CRPD. How that manifests in AM, in addition to chronic unremitting pain, is by way of impaired cognitive processes. He has significant difficulty in retaining new information and manipulating consolidated information in his working memory. He has a generalised difficulty with goal directed thoughts, planning and organisation, which manifests as indecisiveness. AM ruminates on the work related injury and the subsequent compensation settlement. He carries contradictory beliefs that he seemingly cannot reconcile; a denial that he will not get better and resentment that the compensation was less than the work related injury warranted.

112 In his evidence, AM continues to express that he was forced into the compensation settlement.

113 On finding that AM has a mental disability, the next question for the Tribunal is whether AM's mental disability renders him unable to make reasonable judgments about all or any part of his estate.

114 The Full Tribunal said in FS [2007] WASAT 202 at [110]:

The effect of all of this as it relates to the operation of s 64(1)(a) of the GA Act, is to require the Tribunal to consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a 'reasonable judgment' (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances.
(emphasis added)

115 AM has a significant estate mainly comprising of the balance of the compensation and his unencumbered property. The estate is worth approximately $2.5 million. AM did not make any purposeful decisions about the compensation and intervention occurred only when the applications were made by SM three years after the settlement of the workers compensation claim. But for the applications and the subsequent order under s 65 of the GA Act, it is not unreasonable to infer on the evidence that AM would have lost his property and become homeless. In addition AM sacrificed significant income whilst the compensation languished in the compensation solicitor's trust account.

116 It is the opinion of ES, which I accept, that this absence of purposeful decision-making arises as a consequence of AM's impaired cognitive processes. It is also the opinion of ES that the impairment remains part of AM's mental state.

117 I am not convinced by the evidence of AM that his decision-making process has fundamentally changed. His evidence exhibits an arduous process which contains elements of what he expects to be done but he otherwise displays an inability to complete a decision or judgment about what ultimately should be done. For example, he says that he has recently met with financial advisors and discussed ways of investing the compensation. However, he also says that he had meetings with financial advisors years ago (I assume post settlement), but no final judgment or decision resulted with almost disastrous consequences.

118 Even if I accept that AM now has some supports in place that were not previously present, that is of relevance to the question of need not whether he alone is able to make reasonable judgments about his estate.

119 For all these reasons, I find on the evidence that AM is unable to make reasonable judgments in respect of matters relating to his estate.

120 AM submits that the supports he currently has in place, principally SM and his solicitor's law firm, are effectively a foundation for his decision-making and that with these supports he manages appropriately on a day­to­day basis.

121 I am not satisfied, however, even with the supports AM says he has in place that his estate can be managed in his best interests because those supports remain dependent on AM making the decisions upon which they can act.

122 I am satisfied and declare that AM is in need of an administrator to ensure that his estate is protected and is managed to meet his financial requirements in a timely and appropriate way.

123 I appoint the Public Trustee as AM's plenary administrator.

124 I am mindful that AM has endeavoured to explain what he is doing in his quest to demonstrate he can become independent. I am also mindful that in a practical sense any person under an administration order finds it difficult to show they can manage aspects of their estate.

125 There is scope in my view to enable AM to be given the opportunity to demonstrate that he can manage his day­to­day financial needs whilst under the ultimate protection of an administration order. This is consistent with the requirements of s 70 of the GA Act which sets out those matters an administrator must take into account when making decisions in a person's best interests.

126 I will therefore direct the Public Trustee to work with AM to establish an annual budget for his non-capital expenditure and to pay AM the annual budget in a lump sum with the expectation that AM will manage the budget. The Public Trustee should monitor the expenditure to ensure that AM does not place himself at risk by not paying for essential expenditure such as utilities and property expenses including rates and taxes.127 This direction will not prevent AM from making ad hoc requests for additional expenditure which the Public Trustee will consider on its merits.

128 In all other respects AM's estate will remain under the control of the Public Trustee as administrator.

129 I will set the review of the administration order in 18 months to give sufficient time for the budget to be developed and put into operation.

130 In respect of the application for a guardianship order I agree with the views of the Public Advocate that because AM maintains a good relationship with his general practitioner, his basic health needs are monitored. I am also heartened that the general practitioner will explore whether a pain management specialist can attend to AM in his home.

131 I also agree with the Public Advocate that ideally a case manager would be employed to consider all of AM's support needs and to work towards reducing his social isolation.

132 I am satisfied on the evidence that AM is a person in need of oversight and that a guardianship order could be made. However, I am not convinced that there is currently a need for an order. A guardianship order in AM's circumstances would in my view be of limited practical benefit as against the more direct intervention of the administration order I have made. In the case of AM's health and care needs I should not disturb the relationship AM has with his general practitioner and SM and if a case manager were considered worthwhile the Public Trustee could fund such a service from AM's estate.

133 I will therefore not make a guardianship order and will dismiss the application.

Orders

Administration
The Tribunal declares that AM;
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and

(b) is in need of an administrator of his estate,

and the Tribunal orders that:
1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.

2. The administrator is directed to develop an annual budget of the represented person's non capital expenditure in consultation with the represented person. Once established, the administrator is to pay the annual budget amount to the represented person in a lump sum and the represented person is expected to manage those funds.

3. The administrator is to monitor the represented person's expenditure to ensure that essential expenditure such as utilities and property expenses including rates and taxes are paid.

4. The represented person is entitled to make ad hoc requests for expenditure in excess of the budget and the administrator will consider those requests on their merits.

5. This order is to be reviewed by 10 September 2016.





Guardianship
1. The guardianship application is dismissed.

I certify that this and the preceding [133] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J MANSVELD, SENIOR MEMBER