AM
[2007] WASAT 11
•16 JANUARY 2007
AM [2007] WASAT 11
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 11 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1713/2006 | 24 OCTOBER 2006 | |
| Coram: | MS D DEAN (MEMBER) | 15/01/07 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Guardianship order appointing foster parents joint plenary guardians revoked The Public Advocate appointed plenary guardian for three years | ||
| B | |||
| PDF Version |
| Parties: | AM |
Catchwords: | Review of guardianship order Need for a guardian Order revoked No one suitable or willing to act as guardian Public Advocate appointed guardian of last resort Functions of a guardian Need for a plenary order |
Legislation: | Family Court Act 1997 (WA) Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 44, s 44(5), s 45, s 45(1), s 84 |
Case References: | LGW [2004] WAGAB 4 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : AM [2007] WASAT 11 MEMBER : MS D DEAN (MEMBER) HEARD : 24 OCTOBER 2006 DELIVERED : 16 JANUARY 2007 FILE NO/S : GAA 1713 of 2006 BETWEEN : AM
- Represented person
Catchwords:
Review of guardianship order - Need for a guardian - Order revoked - No one suitable or willing to act as guardian - Public Advocate appointed guardian of last resort - Functions of a guardian - Need for a plenary order
Legislation:
Family Court Act 1997 (WA)
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 44, s 44(5), s 45, s 45(1), s 84
Result:
Guardianship order appointing foster parents joint plenary guardians revoked
The Public Advocate appointed plenary guardian for three years
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Category: B
Representation:
Counsel:
Represented person : Self-represented
Solicitors:
Represented person : Self-represented
Case(s) referred to in decision(s):
LGW [2004] WAGAB 4
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Summary of Tribunal's decision
1 The represented person is a 19-year-old man. He was made a ward of the state as a baby and was raised by foster carers who, when he reached 18 years of age and was no longer a ward of the state, were appointed his joint plenary guardians.
2 AM had been assessed as having an intellectual disability with organic personality changes and possible psychosis. At the time of the hearing, he was living with his foster parents and attending a pre-employment course for disabled young people. He was keen to move into independent accommodation and to find employment. It was clear from the information provided to the Tribunal that AM had no insight into his own limitations and had no ability to identify appropriate accommodation, education or employment options or to make any of the necessary day to day lifestyle and medical decisions which needed to be made. He denied that he had a disability and was incapable of making reasonable judgments about his own health and treatment needs.
3 On review of the guardianship order, the foster parents advised that, due to the negative impact on both their family relationships and their health, they were no longer able to continue in the role of guardians.
4 As there was no one else in the life of AM who was willing or suitable to take on the role of guardian, the Tribunal appointed the Public Advocate as plenary guardian for AM.
Background
5 Oral reasons for the decision of the Tribunal were delivered at the conclusion of the hearing. These written reasons are provided at the request of the Office of the Public Advocate. They relate to a periodic review, pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) (the GA Act), of an order for guardianship made by the State Administrative Tribunal (the Tribunal) on 18 April 2005. That order appointed SM and RM as joint plenary guardians for the represented person (AM).
6 AM is a young man who was a ward of the state from early childhood, as are most of his siblings, until he reached the age of 18. Over the years, he has had little contact with his birth parents or his siblings. On AM reaching 18 years of age, the Department for
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- Community Development (the Department) made an application to the Tribunal for a guardianship order.
7 AM's long-time foster parents, SM and RM, proposed themselves as guardians and were appointed joint plenary guardians for 12 months. As required in the legislation, the order was reviewed at the end of the 12 month appointment.
8 At the time the guardianship order was made, a 12 month administration order was also made, appointing SM and RM plenary administrators of the estate of AM. At the 12 month review, the administration appointment was confirmed for a further five years. SM and RM continue to be joint plenary administrators of the estate of AM.
Legislation
9 The principles to be observed by the Tribunal when making determinations in relation to the review of a guardianship order are the same as those applied in relation to applications for guardianship and are set out in s 4 of the GA Act.
10 These principles are:
• making the decision in the best interests of the person;
• every person is presumed to be capable of making reasonable judgments in respect of his or her person unless proven otherwise;
• an order appointing a guardian should only be made if the needs of the person concerned cannot be met by other means that are less restrictive of their personal freedom of decision and action;
• if an appointment is made, a plenary guardian should only be appointed if the needs of the person concerned cannot be met by a limited appointment; and
• the Tribunal should, as far as possible, ascertain the views and wishes of the person concerned.
11 In accordance with s 84 of the GA Act, the Tribunal must review an order within a specified period not exceeding five years from the date of making the order.
12 Section 44 defines who may be appointed guardian. Section 44(5) reads:
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- "Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act."
13 Section 45 outlines the authority of a plenary guardian and describes this in terms of the powers vested under the Family Court Act 1997 (WA) (FC Act) in person with parental responsibility.
Information before the Tribunal
Medical and other reports
14 Reports were provided by AM's GP and psychiatrist, both of whom assess him as having an intellectual disability with organic personality changes. The psychiatrist states that, in addition, AM has behavioural problems with possible psychotic episodes. Both the GP and the psychiatrist assess AM as incapable of making reasonable judgments in respect of any aspect of his life or finances.
15 AM's long-term medical and psychiatric prognosis is uncertain. The psychiatrist suggests that there is "a possibility of some little improvement in his behaviour" and "social skills, impulsiveness and irritability with maturity". He further states that even with improvement in his functioning, AM is likely to continue to require "an appreciable level of input or supervision".
Information provided at the hearing
16 The hearing was attended by AM, his foster parents, SM and RM, and foster grandmother, BM, who outlined the history of the previous 12 months since the original order appointing SM and RM joint plenary guardians had been made.
17 The psychiatrist attended briefly by telephone. He said that in his opinion, AM is not able to make reasonable judgments about any lifestyle decisions including accommodation, health and treatment, education or employment.
18 Throughout the hearing, AM insisted that he does not have a disability and that he is quite capable of making his own decisions in respect of his lifestyle, health and finances.
19 AM's foster mother explained that, because of his lack of insight into his disability and medical needs, without supervision and encouragement,
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- AM is not compliant with the medications he needs to manage his behavioural and psychiatric problems. She further stated that AM's lack of insight compromised his ability to make any reasonable lifestyle or financial decisions.
20 AM insisted that he hasn't been given a chance to prove his ability to make his own decisions, citing what he sees as unreasonable restrictions which have been placed on him by his parents and supervisors.
21 AM and his family explained that they live on a farm some 30 kilometres out of a country town where, two days a week, AM attends a work skills course for young disabled people. This course is tailored to AM's particular needs. The course, which he is repeating from the previous year, is due to end at the end of November. It is unclear what will be available, either in terms of further education or supported employment, after completion of the course.
22 AM lives on the farm in a caravan, which has been set up to accommodate his needs and to provide him with his own space separate from the rest of the family with whom he eats and spends some of his time.
23 Early in the hearing, at AM's request, the family left the hearing room in order for AM to speak alone with the member. AM said he wants to move from his current home to live in the country town where he attends his work skills course. He hopes to get a job and to live with friends. It was clear from his conversation that AM had not considered any of the more practical aspects associated with such a move away from the support of his family and into the town where, it would appear from information provided by his parents, he has little prospect of finding a job or accommodation. He was unable to say who the friends are with whom he wishes to live, whether there is appropriate accommodation available in the town, how much this would cost, how much rent he can afford to pay or how he will find a job. In short, he showed no understanding about living costs and generally how to survive living independently in the community.
24 The foster parents described the difficulties they and other carers have experienced with AM, his lack of insight into his unacceptable behaviours and the impact this has had on their health and family life.
25 Some time ago, AM moved from his country-based foster carers to a foster placement in the city. This placement broke down, and subsequent to that, because of his problematic behaviours and the stress this causes
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- his foster parents, AM spent a short time living with his foster grandmother. Because of the stress AM's behaviour caused the foster grandfather and the negative impact this had on his health, AM moved back to live with his foster parents.
26 When AM was left with nowhere else to live, the caravan on the foster parents' property became a solution to his housing problems while providing the foster carers with some relief from his demanding behaviour. The family home has limited space and there was not a spare bedroom available for AM. The caravan is also seen as a way of providing AM with the opportunity to develop a level of independence consistent with his age.
27 The foster parents and grandmother explained at the hearing that they love and care for AM and intend to remain involved and supportive, but feel that the role of guardian is not one that any of them are able to perform because of the negative impact this has had on their health and family relationships.
Findings and reasons
28 It was clear, from the information provided in the written reports and at the hearing, that AM does not have the capacity to make reasonable decisions for himself about any aspect of his health and welfare. As described in the medical reports and by the psychiatrist at the hearing, AM demonstrates a lack of insight into his own limitations.
29 In determining the need for a plenary order, the Tribunal was guided by s 45(1) of the GA Act. Section 45(1) describes the functions of a plenary guardian in terms of powers vested under the FC Act which confers responsibility for the "long-term care, welfare and development" and "daytoday care" of the represented person as if the person "were a child lacking in mature understanding". In this case, AM is a young man with a diagnosed intellectual disability who has extensive needs in all areas of his life. He demonstrates a lack of mature understanding in respect of addressing those needs for himself, and is therefore in need of an appointed guardian to determine all issues in relation to his care and living arrangements.
30 AM is a young man who is at a very early stage of his life. He is currently living in a caravan on the country property of his foster parents. This is not an ideal situation and is one which he finds less than satisfactory. AM is keen to move into the nearby town and avail himself of the life there. AM needs a guardian to make decisions about his long-
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- term accommodation options. He is clearly unable to weigh up all his options and make this decision for himself. He has no insight into, or understanding about, the complexity and costs associated with a move into independent living.
31 AM has a diagnosed disability, including a possible psychotic illness. It is unclear what his long-term medical prognosis is but there is no doubt that he is currently in need of a decision-maker in respect of medical treatment. It was clear from information provided, both at the hearing and in the written reports, that AM has no insight into his own disability and the need for ongoing monitoring and treatment.
32 Similarly, AM has no insight into his own limitations in terms of his potential for employment. He is currently in a supported educational environment and is working toward supported employment. He needs a guardian to investigate and facilitate appropriate education and/or employment options.
33 The Full Board of the former Guardianship and Administration Board considered the question of the scope of a guardianship order in the decision LGW [2004] WAGAB 4 and determined that the role of a guardian extends beyond a specific decision-making function. The Full Board stated at par 33:
"The scope of guardianship is therefore defined by the reference to the provisions of the Family Court Act. Section 68 of the Family Court Act defines 'parental responsibility' as 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children." (par 33)
34 Since being placed in the care of the Department, AM has had little or no contact with his mother and siblings, most of whom were also placed in the care of the Department. AM has been fortunate to have the love and support of caring foster parents and extended family who have endeavoured to provide the support he requires. Unfortunately, his foster parents, due to the stress placed on their marriage and health, are no longer able or willing to continue in the role of guardians. There is no-one else in AM's life who is willing or suitable to take on this role, leaving the Public Advocate the guardian of last resort.
35 It is hoped that as he matures, AM will develop the skills necessary to make reasonable judgments about some or all aspects of his life and welfare. With this in mind, the Tribunal made an order to be reviewed in three years.
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Decision and Order
36 On 24 October 2006, the Tribunal made the following orders:
1. The order appointing SM and RM joint plenary guardians be revoked.
2. The Public Advocate be appointed plenary guardian.
3. The order is to be reviewed by 24 October 2009.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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