AT and LT - [2014] WASAT 21

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AT and LT [2014] WASAT 21

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS D TAYLOR (SENIOR MEMBER)
DR A GARTON (SENIOR SESSIONAL MEMBER)

HEARD: 11 FEBRUARY 2014

DELIVERED : 21 FEBRUARY 2014

FILE NO/S: GAA 4456 of 2013
GAA 4457 of 2013

BETWEEN: AT
Applicant
AND
LT
Represented Person

Catchwords:

Guardianship and administration - Review by Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) Single member made limited guardianship order appointing Public Advocate as limited guardian and plenary administration order appointing Public Trustee as administrator for represented person - Represented person is 18yearold young man with severe intellectual disability and cognitive impairment - Represented person taken into State care when 10 years old because of extreme domestic violence between his parents and physical abuse towards him by father - Application by mother to be appointed as guardian and administrator - Mother remains married to and resides with father - Whether mother's interests may conflict with the interests of represented person - Whether mother is not suitable to act as guardian - Limited existing relationship with mother - Lack of insight into represented person's impairment - Views and wishes of represented person

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(3), s 4(4), s 4(7), s 17A, s 40, s 44(1), s 44(2), s 43(1)(b), s 64(1)(a), s 68(1), s 68(3)
State Administrative Tribunal Act 2004 (WA), s 27(2)

Result:

Orders made appointing the Public Advocate as limited guardian and the Public Trustee as administrator for represented person
Guardianship and administration orders made reviewable within five years

Summary of Tribunal's decision:

The applicant, who is the represented person's biological mother, sought review by a Full Tribunal of guardianship and administration determinations made by a single member. In those determinations, the single member appointed the Public Advocate as limited guardian (albeit with extensive functions) for the represented person for a period of one year, and appointed the Public Trustee as plenary administrator of the estate of the represented person for a period of five years. The mother proposed herself for appointment as guardian and administrator for the represented person.
The represented person is an 18 year old young man with severe intellectual disability and cognitive impairment. When the represented person was 10 years old, he and his siblings were removed from their parents by the State as a result of extreme domestic violence between the parents and physical abuse by the father towards him. The represented person had limited, supervised contact with the mother from the time he was 15 years old. However, he has had no contact with his father for the past eight years.
The Full Tribunal determined that the mother should not be appointed as guardian and administrator for the represented person, because her interests may conflict with the represented person's interests in relation to a potential claim or proceeding for compensation relating to the circumstances of the represented person's removal from his parents' care and because the mother is not suitable to act as his guardian or administrator. The Full Tribunal determined that the mother is not suitable for appointment for several reasons, including that the mother has had only a very limited relationship with the represented person since he was 10 years old, the represented person expressed a clear view that he wishes the officer of the Public Advocate, and not the mother, to be his decisionmaker, and the mother shows a lack of insight into the represented person's intellectual impairment and his consequent limitations. Furthermore, the mother would not be able to make appropriate decisions in the represented person's best interests in relation to contact with the father.
The Tribunal determined that the appointment of the Public Advocate as limited guardian and the Public Trustee as plenary administrator for the represented person would be in the represented person's best interests. The guardianship and administration orders were both made reviewable within five years.

Category: B

Representation:

Counsel:

Applicant: In person
Represented Person : N/A

Solicitors:

Applicant: N/A
Represented Person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

AT (mother) is the mother of LT (represented person) who is an 18yearold young man with severe intellectual disability and cognitive impairment. Shortly before the represented person turned 18, a single member of the Tribunal made a limited guardianship order appointing the Public Advocate as his limited guardian, although with extensive functions, for one year, and a plenary administration order appointing the Public Trustee as the administrator of his estate for five years.
The mother seeks review of these decisions by a Full Tribunal. For reasons set out below, the Full Tribunal considers that the guardianship and administration orders should be confirmed appointing the Public Advocate as limited guardian for the represented person with the same functions for five years and appointing the Public Trustee as plenary administrator of the estate of the represented person for five years.

Background

In November 2005, when the represented person was 10 years old, his sister was eight years old and his brother was four years old, he and his siblings were removed from their parents, the mother and RT (father), and placed in the care of the predecessor of the Department for Child Protection and Family Support (Department). The children were removed from their parents' care because of extreme domestic violence between the parents and physical abuse by the father towards the represented person. The children were ultimately placed under protection orders until the age of 18 and spent six years together in a stable foster family until early 2013. The represented person's siblings continue to live with this foster family.
Medical reports from Dr PS, a consultant child and adolescent psychiatrist, Dr PW, a clinical and forensic psychologist, and Dr DZ, the represented person's general practitioner, indicate that the represented person has severe intellectual disability and cognitive impairment. The general practitioner also said that the represented person has Post Traumatic Stress Disorder. In a report in September 2013, Dr PW said that the represented person has an IQ of 57 (although other medical evidence refers to an IQ of 44) and 'an overall intellectual functioning in the bottom two in 1,000 of similar age'. Dr PW said that the represented person's working memory is 'exceptionally poor' and his overall brain speed is 'particularly low'. Dr PW said that this means that any information that the represented person is given 'will quickly be lost from the brain, even before he can process it'.
The represented person is also, at times, unable to regulate his emotions, with the consequence that he can panic, and become aggressive and violent, particularly when there are changes to what he expected to occur. This happened in early 2013, when he became physically violent towards his long term foster mother, because she arrived 10 minutes later than he had expected. The represented person's violent conduct on that occasion led to him living in alternative accommodation since that time, although he returns to his former foster family for a weekend visit once a month in order to provide respite for his carer and spend time with his siblings.
The medical evidence also indicates that the represented person requires 24 hour a day, oneonone support, and 24 hour a day supervision, particularly when around children, at night and when in public, because of his intellectual disability and cognitive impairment, anger and impulse control problems, and a conviction for sexual offending against a 6yearold child.
Since leaving the care of the Department, the represented person has been living with an older single man who was recruited through a community care organisation. The delegated guardian in the Office of the Public Advocate, JCM (delegated guardian), reported that the represented person has settled well into this environment and has not displayed any of the physical outbursts experienced previously. At his new home, the represented person has been given an opportunity to work with wood and in the garden, which he has embraced with enthusiasm. He also works elsewhere for a small allowance and is undertaking other training and activities in his local area.

Application for guardianship and administration orders

On 1 October 2013, about six weeks before the represented person's 18th birthday, the Chief Executive Officer of the Department made applications under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) for guardianship and administration orders for the represented person from the time he turns 18.
The applications were heard by Member Dr B De Villiers on 12 November 2013. The Public Advocate had previously interviewed the represented person at the direction of the Tribunal and recommended the appointment of the Public Advocate as limited guardian and the Public Trustee as plenary administrator for the represented person. At the hearing, the mother also proposed herself to be appointed as guardian and administrator. The mother was supported by the father's foster mother (grandmother). The father did not attend the hearing.
The member made guardianship and administration orders with effect from the represented person's 18th birthday, appointing the Public Advocate as limited guardian, but with extensive functions, for one year, and the Public Trustee as his plenary administrator for five years. The following functions were conferred on the Public Advocate as limited guardian for the represented person:
a)To decide where the represented person is to live, whether permanently or temporarily;
b)To decide with whom the represented person is to live;
c)To decide whether the represented person should work and, if so, the nature or type of work, for whom he is to work and matters related thereto;
d)Subject to Div 3 of Pt 5 of the GA Act (which relates to sterilisation), to make treatment decisions for the represented person;
e)To enter into an appropriate workplace agreement with the represented person's employer from time to time;
f)To determine what contact, if any, the represented person should have with others and the extent of that contact;
g)To determine the services to which the represented person should have access; and
h)As the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person.

Application for review

On 27 November 2013, the father and the mother jointly sought review by a Full Tribunal of the member's determination under s 17A of the GA Act. A review under s 17A of the GA Act involves a fresh consideration of the matters that were before the single member. The purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review': s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
On 16 December 2013, the father withdrew his application for review and indicated that he would not be attending another hearing. However, as the mother indicated that she wishes to pursue her application for review and be appointed as guardian and administrator for the represented person, the proceedings were listed for final hearing. Despite his earlier indication, the father in fact attended the final hearing and supported the mother's application, although he left the hearing room before the conclusion of the hearing. The grandmother also attended the final hearing and supported the mother's application.
The delegated guardian formed the view that it would not be in the represented person's best interests to attend the hearing of the review application. She formed this view out of concern as to how the represented person would respond to the formality of the hearing, the represented person's expressed concerns about information that he gave when he attended the hearing before the single member, and the represented person's fearfulness about seeing his father (who he has not seen for the past eight years) at the hearing. As we said at the hearing, we agree that attendance by the represented person at the hearing would not have been in his best interests for the reasons stated by the delegated guardian. Furthermore, although the Tribunal is required 'as far as possible, [to] seek to ascertain the views and wishes of the [represented person] as expressed, in whatever manner, at the time, or as gathered from the person's previous actions' (s 4(7) of the GA Act), the Tribunal did so by directing the Public Advocate to file a report regarding the represented person's current circumstances and wishes and views regarding the mother's proposal to be appointed as his substitute decisionmaker, insofar as it is possible to obtain them.

Issues for determination

The following four issues arise for determination in this review:
1.Is the represented person a person for whom guardianship and administration orders can be made?
2.Is there a need for guardianship and administration orders?
3.Who should be appointed as guardian and administrator?
4.When should the orders be reviewed?
We will address each of these issues in turn.

Is the represented person a person for whom guardianship and administration orders can be made?

Every person is presumed to be capable of making reasonable decisions about personal and financial matters unless the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act. However, in this case, the medical and related evidence is overwhelming and to the effect that the presumption of capacity is displaced. The medical evidence was not seriously questioned by the mother or the father, although the father referred to earlier reports by Dr PW. However, the report of Dr PW in September 2013, and the reports of the represented person's psychiatrist and general practitioner, all clearly indicates that, unfortunately, the represented person is incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, and in need of oversight, care and control in the interests of his own health and safety and for the protection of others (which findings displace the presumption of capacity in relation to guardianship: s 43(1)(b) of the GA Act) and is unable, by reason of a mental disability, namely, intellectual disability, to make reasonable judgments in respect of matters relating to all of his estate (which displaces the presumption of capacity in relation to administration: s 64(1)(a) of the GA Act).

Is there a need for guardianship and administration orders?

Section 4(4) of the GA Act states that a guardianship or administration order 'shall not be made if the needs of the [represented person] could, in the opinion of the [Tribunal], be met by other means less restrictive of the person's freedom of decision and action'. However, there is no less restrictive alternative in the circumstances of this case to the making of guardianship and administration orders.
The medical evidence indicates that the represented person is incapable of executing an Enduring Power of Attorney or an Enduring Power of Guardianship. The represented person plainly needs the appointment of a guardian to make decisions for him in relation to the functions conferred by the guardianship order made by the single member and plainly needs an administrator to manage his disability pension, pay his expenses, manage his bank account and, potentially, make a claim or bring proceedings for compensation in relation to the circumstances that led to his removal from his parents.

Who should be appointed as guardian and administrator?

The principal issue in dispute in the review is who should be appointed as guardian and administrator for the represented person. The Public Advocate recommended that she should continue to be appointed as limited guardian and that the Public Trustee should continue to be appointed as plenary administrator for the represented person. The mother contends that she should be appointed as guardian and administrator.
Section 44(1) and s 44(2) of the GA Act state as follows:
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
The mother contends that she should be appointed as guardian and administrator, because the represented person 'probably thinks that we don't want anything to do with him'. The Department did not allow any contact between the represented person and the mother while the represented person was aged between 10 and 15 years. During part of this time, the Department allowed the represented person to have contact with the grandmother and the grandfather at their home. The grandmother said that she suggested to the Department that they should allow supervised contact with the mother and supervised contact with the mother was then provided for one hour every month from when the represented person was 15 years of age. The delegated guardian indicated that the represented person advised her that he enjoys seeing his mother, although he has no interest in seeing his father, who he has not seen since he was 10 years old.
As noted earlier, the grandmother supports the mother's application to be appointed as guardian and administrator. The grandmother described the mother as 'a very capable woman' and said that she loves her children very much.
As also noted earlier, the father also supports the mother's application. He said that the mother should be the guardian and administrator for the represented person, because the family understood that the represented person would only be under State care until he was 18 years old and decisions for the represented person should not be made at the cost of the tax payer when his mother is available to make decisions.
In our view, the mother's interests may conflict with the interests of the represented person and the mother is not suitable to act as guardian for the represented person, having regard to the considerations in s 44(2) of the GA Act and the best interests of the represented person.
The mother's interests may conflict with the interests of the represented person, because the represented person may potentially make a claim or bring proceedings for compensation related to the physical abuse and other circumstances that resulted in his removal from his parents' care. The mother has a conflict of interest in making a claim against or relating to the father. Moreover, we do not consider that the mother would act in the best interests of the represented person in deciding whether to make a claim for compensation, given that she remains married to and resides with the father.

In relation to the desirability of preserving existing relationships within the family, the represented person has had only a very limited relationship with the mother since he was 10 years old and has had no relationship with the father since that time. In a report by the Public Advocate's officer to the Tribunal in November 2013, the officer said that the represented person described his foster carers as 'his parents more so than his biological parents'. The delegated guardian gave evidence that the represented person calls his foster carers 'Mum and Dad' and that he spends one weekend a month with his former foster family and his siblings, whereas he has more limited contact with the mother.
In relation to the wishes of the represented person, the represented person told the delegated guardian that he would like her to remain his guardian and that he did not want the mother to act on his behalf as his guardian. Although the represented person seems to have mistakenly thought that a guardian makes decisions in relation to money, nevertheless, he expressed a clear view that he wishes the delegated guardian to remain as his decisionmaker and does not want the mother to be his decisionmaker. Although the medical evidence indicates that the represented person is impressionable, some weight should be given to his clearly expressed views and wishes. Furthermore, it would be contrary to the best interests of the represented person to appoint the mother as his guardian, contrary to his clearly expressed views and wishes, having regard to his intellectual disability and its manifestations in terms of angry and violent conduct.
In relation to whether the mother will be able to perform the functions vested in her, other than the grandmother's expressed view that the mother is 'a very capable woman', there is little evidence that the mother will be able to perform the functions of a guardian. Furthermore, in her evidence and submissions to the Tribunal, the mother (and the father) showed a lack of insight into the represented person's intellectual impairment and his consequent limitations. The mother also indicated that she is opposed to the represented person being medicated with Risperidone, although this drug was prescribed by Dr PS, the represented person's psychiatrist, to curb his aggressive and violent behaviour. The mother's lack of insight in relation to the represented person's intellectual impairment, its consequences and required medication, may well be due to her limited contact with the represented person over the past eight years.
Furthermore, the mother would not be able to make appropriate decisions in the represented person's best interests in relation to contact with the father. The grandmother said that, when she had contact with the represented person more than two years ago, he indicated that he wished to see his father. A care plan in 2011 for the represented person also states that the represented person advised that he would like to see his father. However, in January 2014, the represented person told the delegated guardian that he has no interest in seeing his father and the delegated guardian said that, when discussing the father, the represented person became 'less animated and his body became rigid with a startled expression'. When asked if he would like to see the father with the mother, the represented person replied 'No, just my mother as my father can be scary and may hurt me'.
Given that the father indicated that he would like to have contact with the represented person and that the father and the mother are married and live together, it would place the mother into a very difficult, if not impossible, position to make decisions about contact with the father. We do not consider that the mother would make appropriate decisions in the represented person's best interests in relation to contact with the father.
In the circumstances of this case, we consider that it is in the best interests of the represented person for the mother not to be appointed as his guardian but, rather, for the Public Advocate to be appointed as his limited guardian. We are satisfied that the Public Advocate and, in particular, the delegated guardian, has been acting in the represented person's best interests since the order made by the single member in November 2013.
We note, however, that the delegated guardian indicated that she would seek to facilitate appropriate access between the represented person and the mother and the grandmother. This may require arrangements being made for the represented person to come to Perth from time to time with his carer in order to meet the mother and the grandmother.
Although the father would like to have contact with the represented person, given the circumstances of the represented person's removal from his parents' care and his currently clearly expressed view and wish not to have contact with the father, it is understandable that contact with the father has not been facilitated to date. However, the delegated guardian indicated that she would continue to consider whether some form of contact with the father may be appropriate in the future.
In relation to administration, s 68(1) and s 68(3) of the GA Act state as follows:
(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.
…
(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.
Other than the grandmother's statement that the mother is 'a very capable woman', there is little evidence that the mother will be able to perform the functions of an administrator, which include management of the represented person's finances and making annual reports to the Public Trustee. As we found earlier, there is a potential conflict of interest between the mother and the represented person in relation to the represented person's potential claim or proceeding for compensation. Furthermore, as noted earlier, the represented person has clearly expressed the view that, although he enjoys seeing his mother, he does not wish his mother to make decisions for him.
In all the circumstances, we find that the appointment of an independent, professional administrator, namely the Public Trustee, is in the best interests of the represented person.

When should the orders be reviewed?

Although the single member made a one year guardianship order, the delegated guardian submits that a five year order should be made. She expressed this view, because the represented person's disability is unlikely to change, it would be distressing to him to have an early review, and a longer period would allow appropriate planning decisions to be made in his best interest.
The father expressed the view that the guardianship order should be limited to one year, but did not provide any basis for that view.
In our view, it is in the best interest of the represented person to make the guardianship order and the administration order for the maximum period available under the GA Act, namely five years, for the reasons given by the delegated guardian.

Declarations and Orders

For these reasons, the Tribunal makes the following declarations and orders.
In proceeding GAA 4456 of 2013 (relating to administration) we declare that the represented person:
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 we make the following orders:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all of the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administration order is to be reviewed by 21 February 2019.
In proceeding GAA 4457 of 2013 (relating to guardianship) we declare that the represented person:
a)is
i)incapable of looking after his own health and safety;
ii)unable to make reasonable judgments in respect of matters relating to his person; and
iii)in need of oversight, care and control in the interests of his own health and safety and for the protection of others; and
b)is in need of a guardian,
and we make the following orders:
1.The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
a)To decide where the represented person is to live, whether permanently or temporarily;
b)To decide with whom the represented person is to live;
c)To decide whether the represented person should work and, if so, the nature or type of work, for whom he is to work and matters related thereto;
d)Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person;
e)To enter into an appropriate workplace agreement with the represented person's employer from time to time;
f)To determine what contact, if any, the represented person should have with others and the extent of that contact;
g)To determine the services to which the represented person should have access;
h)As the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings related to the estate of the represented person.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed by the Office of the Public Advocate.
3.The guardianship order is to be reviewed by 21 February 2019.

I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT