ARP and AP
[2005] WASAT 230
•29 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: ARP and AP [2005] WASAT 230
MEMBER: MS D DEAN (MEMBER)
HEARD: 12 AUGUST 2005
DELIVERED : 29 AUGUST 2005
FILE NO/S: GAA 790 of 2005
BETWEEN: ARP
Represented Person
AND
AP
Applicant
Catchwords:
Guardianship and Administration review - Need for an administrator - Breakdown of family relationships - Public Trustee appointed
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 64, s 68, s 86, s 90
Result:
The application to review the administration order was allowed
The Public Trustee was appointed as limited administrator
Category: B
Representation:
Counsel:
Represented Person : Self-represented
Applicant: Self-represented
Solicitors:
Represented Person : N/A
Applicant: N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter related to an administration order appointing the brother of the represented person with the functions of briefing legal council in relation to a personal injuries compensation claim and managing any moneys paid to the represented person as a result of the claim.
The administrator applied to the Tribunal for review of the order because his relationship with his brother, the represented person, had broken down to the point that the order was unworkable.
The Tribunal revoked the order and made a new order appointing the Public Trustee limited administrator.
Background
On 5 February 2005, an administration order was made appointing AP limited administrator of the estate of his brother, ARP. The administrator was to seek legal advice in respect of a personal injuries compensation claim and to apply, or expend moneys, from any compensation payment received as a result of any action in the District Court. The compensation claim related to a brain injury suffered by the represented person in 2000.
On 13 May 2005, the administrator applied to the State Administrative Tribunal for review of the order and asked that the order be revoked because, he said, it was unworkable as a result of a complete breakdown in the relationship between himself and his brother, the represented person.
Legislation
The principles to be observed by the Tribunal when making determinations in relation to guardianship and administration applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (the Act).
"(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in subsection (2).
(2)(a)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b) Every person shall be presumed to be capable of:
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d)A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(f)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions."
As the appointed administrator of his brother's estate, AP could apply, under s 86 of the Act, for review.
"(1)The State Administrative Tribunal may at any time on the application of:
(a) the Public Advocate;
(b)a represented person or a guardian or an administrator; or
(c)a person to whom leave has been granted under section 87,
review a guardianship order or an administration order.
(2)The eligibility of a guardian or administrator to apply under subsection (1)(b) is limited to the guardianship or administration order under which he acts."
Section 90 of the Act provides that the Tribunal, when reviewing an administrative order, may confirm, amend or revoke the order and make a new order in accordance with s 64.
Section 90
"(1)Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order:
(a)amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;
(b)revoke the order, or revoke the order and substitute another order for it; or
(c) without limiting paragraphs (a) and (b):
(i)revoke the appointment of any guardian or administrator;
(ii)appoint a new or additional guardian or administrator;
(iii) appoint an alternate guardian.
(2)A review under this Part is in the State Administrative Tribunal's original jurisdiction."
Section 64
"(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b) is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint:
(c) a person to be the administrator; or
(d) persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.
(3) An appointment under subsection (1):
(a)may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;
(b)may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given; and
(c)shall not be made where the Director-General of the department established under section 4 of the Community Services Act 1972 is empowered to act for the person in respect of whom the application is made by virtue of section 14 or 15 of that Act, unless the Director-General consents to the appointment."
Section 68 of the Act provides for who may be appointed administrator. In making a decision about who to appoint, the Tribunal must be satisfied the person has consented to act, will act in the best interests of the represented person and is able to perform the functions required of the administrator. As far as possible the Tribunal takes into account the wishes of the represented person and the compatibility of the administrator with the represented person.
Section 68(1)
"(1)An administrator (including a joint administrator) shall be:
(a) an individual of or over the age of 18 years; or
(b) a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal:
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person."
Section 68(3)
"(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible:
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b) the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator."
Hearing
The application for revocation of the order was part heard on 22 June 2005. The hearing was attended by the represented person and his brother, the administrator.
The administrator advised the Tribunal that his relationship with his brother had broken down to the point that they were no longer on speaking terms and that this prevented him from fulfilling the role. The administrator stated that he wished to relinquish the role of administrator and have an independent person outside the family appointed.
The represented person stated that his health had improved, and he believed that he could manage most things for himself. He said he now wished to resume management of his estate.
The Tribunal advised the parties of the need for current information in relation to the capacity of the represented person to make reasonable judgements in respect of matters relating to his estate. Although the finding in the February 2005 hearing had been that ARP lacked the capacity to make reasonable judgements in respect of his estate, given his current belief that his health had improved to the point that he could now manage his estate, the Tribunal decided that a more recent assessment of the represented person's capacity was warranted. ARP, the represented person, provided the Tribunal with names and contact details for his doctors and a psychologist who, he said, could provide current information about his capacity.
The hearing was adjourned for the Tribunal to seek the current medical evidence in relation to the capacity of the represented person.
Capacity
Reports were subsequently received from Dr W, the represented person's GP for the last four years. Dr W reported that the represented person had suffered a "major head injury" and was "likely to remain static at [his] current functional level". Dr W reported that she was unsure about the represented person's ability to make reasonable decisions in relation to his financial affairs but thought "probably not".
Dr W enclosed a copy of a report from Dr P, consultant psychiatrist, written in August 2004. Dr P reported that the represented person had "cognitive damage" which made him an unreliable informant with "little insight" into his condition. "Clinical testing revealed impairments in abstraction, judgment and set generation". Dr P reported that there had been "no change" in the represented person's condition in the previous twelve months. Dr P said that if the family supports that were in place were no longer available to him, the represented person, "then an outside carer or agency may be required".
A report was received from WC, a clinical psychologist, who had known the represented person for five years. WC said that the represented person "should improve with neurotherapy", and assessed him as capable of managing his personal health care and living situation but incapable of making reasonable decisions in relation to his financial affairs because of his difficulties in "managing complex issues". WC also assessed the represented person as incapable of executing an enduring power of attorney.
In reviewing the administration order, the Tribunal must be satisfied, based on evidence provided, that the represented person does not have the capacity, by reason of a mental disability, to make reasonable judgments in respect of matters relating to his estate, and is in need of an administrator of his estate.
Need
The Tribunal was satisfied that there was a need for an administrator to seek legal advice on behalf of the represented person in respect of the personal injuries compensation claim in the District Court and to manage any moneys paid to the represented person if the claim was successful.
Best Interests
The Tribunal accepted that it was in the best interests of the represented person for an independent person outside the family to be appointed as administrator as the appointment of his brother had resulted in significant damage to familial relationships.
Findings and Reasons
In reviewing the original decision made in February 2004, the Tribunal had access to recent reports from:
Dr W, ARP's GP for four years, reported that she was "unsure" of ARP's capacity to make reasonable decisions in relation to his personal health care, living situation and financial affairs, but found him "probably not" able to make reasonable decisions in relation to his financial affairs.
Dr P, consultant psychiatrist, assessed ARP as having "impairments in abstraction" and "judgment", and stated that he would require paid carers if family support was not available to him.
WC, a clinical psychologist, assessed ARP as currently capable of making reasonable decisions in relation to his personal health care and living situation but incapable of making reasonable decisions in relation to his financial affairs because of his difficulties in "managing complex issues". WC assessed ARP as having the potential to "improve with neurotherapy".
The Tribunal was satisfied, from the evidence provided in these written reports, that ARP is a person who is unable to make reasonable judgments in respect of matters relating to his estate.
In reviewing the order, the Tribunal heard the evidence provided by the administrator that the breakdown of the relationship between him and his brother made it difficult for him to fulfil his role as administrator, and accepted that he no longer wished to continue in that role. Further, the Tribunal accepted that it was not in the best interests of the represented person for his brother to continue in the role of administrator, as this was likely to further damage the relationship of the brothers and other family members.
Decision
Having considered all the evidence, the Tribunal was satisfied that ARP is a person for whom orders could be made, that there was a need for an order, and that it was in ARP's best interests that an administration order be made. Since his brother could no longer continue as administrator and there was noone else in the life of the represented person who proposed appointment as administrator, the administrator of last resort, the Public Trustee, was appointed. The order is to be reviewed by 12 August 2007.
The Tribunal made the following orders:
1.The order dated 5 February 2004 be revoked and an administration order in the following terms be substituted for it.
2.The Public Trustee of 565 Hay Street, Perth WA be appointed limited administrator of the estate of the represented person with the following functions:
(a)To seek legal advice on behalf of the represented person in relation to a personal injuries compensation claim in the District Court resulting from a motor vehicle accident on 14 February 2000, and to bring and defend actions, suits and other legal proceedings in the name of the represented person in relation to the same and related matters and, if appropriate, to settle these matters.
(b)To apply or expend moneys of the represented person from any compensation payment received as a result of the action in the District Court in respect of the motor vehicle accident on 14 February 2000 for the maintenance, necessaries, comforts and benefits of the represented person or any person, in such manner and to such extent as the administrators, having regard to the circumstances and the value of the estate of that person, considers proper and reasonable.
3.The administration order to be reviewed by 12 August 2010.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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