BF
[2024] WASAT 54
•31 MAY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: BF [2024] WASAT 54
MEMBER: MS R BUNNEY, MEMBER
HEARD: 21 MAY 2024
DELIVERED : 30 MAY 2024
PUBLISHED : 31 MAY 2024
FILE NO/S: GAA 747 of 2024
BF
Represented Person
Catchwords:
Administration - Multiple reviews of administration order - Section 17A review by Full Tribunal - Section 86 review on application - Section 84 periodic review - Longstanding fluctuating psychiatric illness - Bipolar affective disorder - Modest estate - Adult child maintenance - Represented person's 18-year-old son appointed as administrator - Five year orders
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(4), s 4(6), s 4(7), s 17A, s 40, s 64, s 65, s 68(1), s 68(3)(b), s 68(3)(c), s 84, s 86, s 97
Result:
Private administrator appointed
Category: B
Representation:
Counsel:
| Represented Person | : | N Versteegen |
Solicitors:
| Represented Person | : | Mental Health Law Centre |
Case(s) referred to in decision(s):
FY [2019] WASAT 118
REASONS FOR DECISION OF THE TRIBUNAL:
(The application was heard on 21 May 2024 (Hearing). An oral decision was delivered on 30 May 2024. The following reasons comprise the reasons that were delivered orally, edited only to anonymise parties, to add relevant authorities, legislation and headings, correct grammatical errors and some infelicity of expression, without variation to the substance thereof.)
Introduction
BF is a 56-year-old woman who received a diagnosis of bipolar affective disorder (BPAD) at around 20 years of age. BF came to Australia as a teenager with her parents and siblings as the political regime in their home country made it unsafe for them to stay. BF was assisted by an interpreter in her first language at the Hearing, although her English is very good, and she spoke to me in English for much of the time.
BF has always been a single mother and the primary carer for her son AE, as she separated from his father when she was pregnant. AE was aged 16 when the first application was filed with the Tribunal. BF's behaviours at that time were making herself and her son financially vulnerable so her community mental health team (Mental Health Team) applied for an administrator to be appointed to manage her finances.
BF's history with mental health services dates back to 1996. Her illness fluctuates and has a high rate of relapse. The manic and hypomanic episodes she experiences affect her behaviour, concentration, memory and her ability to manage her finances.
A plenary administration order was first made for BF by the Tribunal on 9 March 2023 appointing the Office of the Public Trustee (Public Trustee). The order was reviewed and further administration orders were made:
(a)on 23 June 2023 appointing BF's sister MM; and
(b)on 13 February 2024 reappointing the Public Trustee.
The orders I will make as a result of the latest review will be the fourth plenary administration order made for BF in the last 14 months.
Application to the Tribunal – 30 December 2022
The first application for administration orders was filed on 30 December 2022 pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act). BF had been admitted to hospital approximately nine times in the previous 5 years, predominantly due to manic relapses of her illness in the context of poor medication compliance and psychosocial stressors. BF did not attend the hearing of 9 March 2023 as she had been hospitalised a few days earlier and was too unwell. BF's sister DD was the only family member that attended the hearing.
BF had accumulated many debts due to impulsive spending when she was unwell and would reportedly give $50 or more to strangers when asked. BF was unable to pay her necessary bills such as for medications, mortgage and utilities. Her unpaid council rates at the time were more than $8,000 and her medication bill at the local pharmacy was over $200. She had recently spent $5,000 to replace her air conditioning, which was reported to have been unnecessary, as well as refinanced her mortgage to pay other outstanding bills and lend money to people.
There were no nominees for appointment as BF's administrator, so the only option open to the Tribunal was to appoint the Public Trustee.
First review – s 17A review by the Full Tribunal
BF and AE applied for a review of the administration order pursuant to s 17A of the GA Act which states:
17A.Review
(1)Where the State Administrative Tribunal consisting of one member makes any determination, a party who is aggrieved by the determination may request the President to arrange for a Full Tribunal to review the determination, and the President shall comply with any such request[.]
AE's view was that he was already helping his mother with her finances so there was no need for the Public Trustee to be involved. The report from BF's trust manager at the Public Trustee (Trust Manager) stated that '[BF] has yet to fully understand the role of the Public Trustee and why the appointment was made. [BF] has advised she does not see the benefit of the Public Trustee's involvement in her affairs and believes her son, [AE], is capable of assisting her with her financial affairs'.[1]
[1] PT Report dated 18 April 2023, page 2.
The Tribunal referred the matter to the Office of the Public Advocate (Public Advocate) for investigation and report.[2]
[2] GA Act, s 97.
A further report from the Trust Manager set out BF's debts as at June 2023:[3]
(a)shire rates in the amount of $8,869.28;
(b)Water Corporation in the amount of $4,690.74;
(c)white goods in the amount of $4,362.40; and
(d)furniture in the amount of $2,175.
[3] PT Report dated 16 June 2023, Statement of Transactions and Assets and Liabilities.
In addition, the mortgage on BF's home had increased to $280,800. On 1 January 2023, the balance was $275,055. The balance increased so significantly because BF froze the mortgage while she was in hospital in March 2023, so no payments were made for four months, and interest and arrears fees were charged.
The medical report and letter filed prepared by Dr T, BF's longterm psychiatrist, stated that there were concerns about others preying on BF's generous nature, as she had used equity from her home to lend money to people who had not paid her back. When Dr T raised concerns with BF about the effect this could have on her, BF said that she would not be at financial risk if she found a job. Dr T said that this demonstrated an overly optimistic view of BF's financial circumstances that was influenced by her illness.[4]
[4] Letter and Medical Report prepared by Dr T dated 12 May 2023.
The report filed by the Principal Investigator Advocate from the Public Advocate (Investigator) stated that BF is extremely proud of AE, who was studying hard at school and getting mostly As.[5] BF was aware that she needed to investigate how to extend the child support payments received from AE's father after AE turned 18-years-old in March 2024, as AE intended to go to university. BF relied on the child support payments of around $2,200 per month to pay the mortgage.
[5] Investigator Report dated 15 June 2023.
In terms of who to appoint as her administrator, BF understood that she needed help with her finances. Due to her strong connection and bond with her younger sister MM, she wanted MM to be appointed as her administrator.
The Investigator spoke to BF's sister DD. DD confirmed that MM is good at explaining things to BF, she helps BF with her English and there is strong trust between them. DD stated that there was a discussion involving the whole family about MM being BF's administrator. DD advised the Investigator that 'We all discussed and the family are in agreement for [MM] to be in charge of [BF's] finances and decisions. The family are helping [BF] but [MM] will be the decisionmaker'.[6] She advised that AE also agrees for MM to be the administrator.
[6] Investigator Report dated 15 June 2023, page 8.
The Investigator noted that the imposition of the order appointing the Public Trustee appeared to have been the impetus for the family to become more involved with assisting BF. The Investigator recommended that MM be appointed as BF's administrator, as MM had the support of the whole family and most importantly, the trust and respect of BF.
On 23 June 2023, the Full Tribunal appointed MM to be BF's plenary administrator for 5 years.[7]
[7] The Full Tribunal consisted of President Pritchard, Member Oldfield and Member Bunney.
Second review – s 86 application for review
On 17 January 2024, MM applied to the Tribunal seeking to be discharged as BF's administrator due to a breakdown in the relationship between them. As the administrator, MM was entitled to ask for a review at any time pursuant to s 86 of the GA Act which states:
86.Review on application
(1)The State Administrative Tribunal may at any time on the application of —
(a)the Public Advocate; or
(aa)the Public Trustee; or
(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[.]
MM requested in the application that the review be heard at the earliest time possible as BF has become very uncooperative, and at times hostile, over the last two months. MM said that the stress had taken a significant toll on MM's own mental health and chronic illness.
During the period of MM acting as administrator, BF's accounts were much improved, demonstrated by significant savings and the debts to the furniture and electrical goods stores being resolved. The only debts remaining were:
(a)the mortgage with a balance of $270,835, which had been paid down considerably from $280,800 in June 2023;
(b)shire rates in the amount of $10,802.55; and
(c)Water Corporation in the amount of $4,823.
The review hearing was held on 13 February 2024. AE was keen to be appointed as the administrator, but he was still 17 years old and did not turn 18 for five more weeks. I made an order appointing the Public Trustee to be BF's administrator with the review of that order to occur in four months' time, so by 13 June 2024.
I suggested to AE that he should read the Private Administrator's Guide[8] and attend the Public Trustee's Private Administrator's training session so he understood what was involved with being an administrator. In addition, I referred the matter back to the Public Advocate for investigation and the preparation of a report.[9] The same Investigator was able to speak to all parties again and prepare the further report to the Tribunal.
[8] GA Act, s 97.
Third review – s 84 periodic review by Tribunal
AE turned 18 in mid-March 2024. The review hearing occurred on 21 May 2024 pursuant to s 84 of the GA Act which states:
84.State Administrative Tribunal to review orders periodically
The State Administrative Tribunal shall —
(a)when it makes a guardianship order or an administration order or any order amending, continuing or replacing an order specify a period, not exceeding 5 years from the date of the order, within which the order shall be reviewed; and
(b)ensure that the order is reviewed accordingly.
The Investigator met with BF, AE, DD and another sister SS in early May 2024. SS outlined the trust that she and the rest of the family have in AE and his capability to manage BF's finances. SS spoke of his maturity and long-term involvement with BF's finances. Now that AE was 18 years old, most of the family saw that there were no barriers to his appointment. The Investigator commented that it was clear throughout his investigation that there was increased involvement, engagement and support for both BF and AE from the family compared to the situation in 2023.
SS outlined that the family had discussed with AE, when he was around 14 years of age, that he would need to assist his mother in the future. The family confirmed that they would support him practically, emotionally and financially. SS runs a business and is the administrator for her husband, and she is happy to assist AE in the role.
A further issue discussed was MM's receipt of the Carer's Payment for BF, which MM had been receiving for 11 years. This Payment is approximately $1,200 per fortnight. AE had applied for the Carer's Payment when the Public Trustee was appointed in February 2024, which caused MM's receipt of the Payment to stop. AE had not received the Carer's Payment by the time of the Hearing, but he expected to start receiving it soon.
AE had accepted the advice of the Tribunal and attended the Public Trustee's Private Administrator's Support session. AE had negotiated with his father for the continuance of child support payments, or adult child maintenance, which is conditional on AE studying at university and achieving good grades. AE intends to undertake a 3-year course at university in cyber security and defer his university fees to HECS, using the money received from his father to pay his mother's mortgage. AE is due to start university in Semester 2 2024, which starts in about five or six weeks.
The adult child maintenance payments are directed to AE, so they are AE's funds. In addition, the Carer's Payment will provide AE with extra funds to support himself and his mother. AE's financial plan therefore, in administering his mother's finances, is to provide her with his funds. This is noble, although regardless of who the administrator is, the success of BF's financial management and the retention of her home relies on AE's ability to maintain good grades to ensure the continuing payment of adult child maintenance by his father.
The Investigator was keen to recommend AE's appointment, however, was reluctant to do so due to AE's young age, the possibility of overconfidence of the family in AE's abilities and a lack of understanding of the issues that AE will need to deal with. I share the concerns of the Investigator.
In addition to the pressure on AE to establish and maintain good grades, he is already an emotional support to his mother, her carer and son. It is a complex dynamic and a lot more than a usual 18-year-old should be responsible for. It is also not known whether the support of the family would be sufficient for AE to successfully fulfill the role of administrator in addition to his existing responsibilities.
What the Tribunal must decide on review of the orders
On review of orders, whether pursuant to s 17A, s 86 or s 84, the Tribunal must determine whether the represented person remains a person for whom orders may be made, whether they continue to need an administrator and if so, who that should be. The Tribunal must also determine the functions/powers of the administrator and length of the order to be made.
Evidence
I have read and had regard to the following documents:
(a)applications to the Tribunal dated 30 December 2022 and 17 January 2024;
(b)service provider report prepared by the social worker from Mental Health Team dated 11 January 2023;
(c)letter and medical report prepared by Psychiatrist Dr T dated 12 May 2023;
(d)bank statements and reports filed by the Public Trustee dated 18 April 2023, 16 June 2023 and 30 April 2024;
(e)reports from the Principal Investigator Advocate from the Public Advocate dated 15 June 2023 and 15 May 2024; and
(f)letters from BF's general practitioners dated 21 May 2024.
I have also had regard to the oral evidence given by BF, AE, DD, SS and the submissions from the Investigator. I took all of this evidence into account when making this decision.
Principles to be observed and legislation
To appoint an administrator, I must be satisfied that BF is currently unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate and that she is in need of an administrator of her estate.[10]
[10] GA Act, s 64.
The term 'mental disability' is defined in s 3 of the GA Act. The definition describes certain disabilities such as an intellectual disability, a psychiatric condition, dementia and acquired brain injury. The definition also includes the ordinary meaning of the term 'mental disability' which 'contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal'.[11]
[11] FY [2019] WASAT 118 (FY) at [27].
The primary concern of the Tribunal is the best interests of the proposed represented person.[12] Every person is presumed to be capable of looking after their own health and safety, making reasonable judgments in respect of matters relating to their person, managing their own affairs and making reasonable judgments in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal.[13]
[12] GA Act, s 4(2).
[13] GA Act, s 4(3).
When considering any matter, the Tribunal is required, as far as possible, to ask about the views and wishes of the person concerned.[14]
[14] GA Act, s 4(7).
Orders should not be made if BF's needs could, in the opinion of the Tribunal, be met by other means less restrictive of her freedom of decision and action.[15] Finally, any order appointing an administrator should be in terms that impose the least restrictions possible on BF's freedom of decision and action.[16]
[15] GA Act, s 4(4).
[16] GA Act, s 4(6).
What are BF's views and wishes?
BF understands that she need assistance with the management of her finances and her clear wish is for AE to be appointed as her administrator. BF trusts and respects AE, and she stated that if he says no, she can accept it because of the close bond that they have.
BF does not believe that her relationship with AE would be negatively affected by his appointment as her administrator, and her belief is that it would be beneficial for her mental health. AE already communicates with the Trust Manager on her behalf, as it makes BF anxious to communicate with them.
BF also discussed the change in her medication in March 2024 following an in-patient stay at hospital. She says that she is now less drowsy, more active and has better short-term memory. Her 'symptoms are well-controlled and stable. She is looking after herself and her house well and she is much more independent with her tasks and daily living activities. She reports feeling much more stable and happier now than on the previous medication regime'.[17]
[17] Letter dated 21 May 2024 from Dr G, general practitioner.
Does BF have a mental disability?
The evidence before the Tribunal is that BF's illness, BPAD, is a longstanding diagnosis with frequent relapses. AE was able to tell me in great detail the subtle changes that he will notice in her behaviour when she is about to relapse. AE also explained how he advocates for her with her Mental Health Team and doctors to care for her at home to avoid the necessity for hospitalisation.
I am satisfied, and I find, that BF has a mental disability within the definition of the GA Act.
Does the mental disability cause BF to be unable to make reasonable judgments in respect of her estate?
The evidence is clear that when BF is unwell, she will make impulsive purchases and in the past, she has not prioritised paying important bills such as the shire rates, water and the mortgage. Her illness causes her to be unable to take reasonable steps to safeguard her finances. She has previously put herself, her son and her home at financial risk.
I am satisfied, and I find, that the mental disability causes BF to be unable to make reasonable judgments in respect to all of her estate. Accordingly, I am satisfied that the presumption of capacity is rebutted by the diagnosis of BPAD and BF continues to be a person for whom I can appoint an administrator.
Is BF in need of an administrator?
Having regard to the evidence I have just referred to, there is no doubt that BF requires assistance to deal with her estate. The question is whether she needs an administrator, or whether there is a less restrictive option available.
During the hearing, AE discussed the possibility of BF appointing him as her attorney pursuant to an enduring power of attorney (EPA). BF's new psychiatrist, Dr R, had advised AE that he was not currently able to provide a view about whether BF has capacity to sign an EPA, but he would be able to provide that view in a few months' time when he knew BF better. We discussed the potential drawbacks of an EPA, such as the fact that an EPA is voluntarily entered into and could be revoked by BF if she wished.
I am satisfied on the evidence before me, and I find, that there is currently no less restrictive means available for decisions to be made in BF's best interests other than by the appointment of a plenary administrator. BF requires someone with the legal authority to manage her estate, such as speaking to the bank and Centrelink, dealing with utility and other service providers, paying bills and managing her debts.
Who to appoint?
AE has nominated himself as BF's administrator. When considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in the best interests of BF, is suitable to act as the administrator of her estate and will be able to perform the functions vested in them.[18] The Tribunal shall also take into account as far as possible BF's views and wishes.[19]
[18] GA Act, s 68(1) and s 68(3)(c).
[19] GA Act, s 68(3)(b).
The Tribunal will also examine the effect of an appointment on the existing relationships within BF's family. We discussed in detail during the Hearing how the appointment could affect the most important, supportive relationship that BF has with anyone, which is with her son AE. The family were confident that AE could manage acting as BF's substitute decision-maker in a manner that would not harm their relationship.
I was concerned because the relationship with MM had been harmed after around five months of MM's appointment as BF's administrator. SS and BF explained that the conflict with MM arose because of MM's view that it would be necessary to sell BF's home when the child support payments stopped in March 2024. BF was not willing to sell her home and cited the problems in the current rental market. A further conflict developed because BF wanted AE to be her carer and receive the Carer's Payment. The family's view was that it was best for both BF and AE if AE was appointed as the administrator and formally became her carer.
SS and DD commented that although BF could be rough verbally or mean to other members of the family when she was unwell, they had never seen her speak to AE in that way. SS stated that AE is able to say 'no' to BF in a peaceful way. Because of their strong bond, BF listens to AE, and he can be authoritative with her without it affecting their relationship.
Will AE act in the best interests of BF?
AE explained how he had negotiated with his father, who had agreed to pay $2,000 per month to AE in support of his university studies on the condition that he maintains good grades. AE explained to his father that if he was not supported to study, he would need to start working in a trade to earn enough money to pay the mortgage. The ongoing payments from AE's father are the only way that BF can keep her home, if AE is to study, as BF has no other means for meeting the mortgage repayments.
The other part of AE's plan, discussed earlier, to assist his mother's financial situation is to obtain the Carer's Pension for caring for his mother. Due to AE applying for the Carer's Pension some months ago, is likely that he will receive backpay at some point in the future. AE made a sensible suggestion that if he received (for example) $10,000 in a lump sum, he would use $7,000 to pay off bills, and he would keep $3,000 for any unforeseen expenses. AE says that he always has $5,000 saved of his own money and he has used those funds from time to time to pay his mother's bills when the Public Trustee has not paid them on time.
AE also gave examples of how he has stopped BF from spending money when she is unwell. He has returned items she bought and has sold others on Marketplace at the same value for which they were purchased.
I am satisfied, and I find, that AE will act in BF's best interests.
Is AE able to perform the functions vested in the administrator?
AE spoke about the preparation he had undertaken by attending the Public Trustee's Private Administrator's training session. AE outlined to the Investigator the obligations he would have if appointed as administrator, such as complying with the annual reporting requirements to the Public Trustee.
AE explained the difficulties that have occurred in having the Public Trustee act as the administrator for his mother, such as the Optus bill not being paid on time and losing phone and internet access. AE was required to pay the outstanding bill out of his own funds. In addition, communicating with the Trust Manager about these issues takes a significant amount of time, and because it is too stressful for BF to do herself, it is AE that must communicate with the Trust Manager.
BF has a modest estate with her sole source of income being disability support pension and her assets being her home and her car. AE has a clear and accurate understanding of his mother's income, expenses and liabilities, particularly in relation to ongoing bills to be paid and the outstanding shire rates and water. AE explained the minimum repayments BF must make in order to receive a pensioner's discount on the shire rates and he expressed concern around whether those payments would be made on time by the Public Trustee in order to obtain the discount.
I am satisfied, and I find, that AE is able to perform the functions proposed to be vested in the administrator.
Is AE otherwise suitable to act as BF's administrator?
I find that AE is over the age of 18 years and has consented to act as administrator.[20] AE has a detailed working knowledge of BF's finances, particularly in relation to her income, expenses and the obligation to continue to pay down the water bill, shire rates and mortgage.
[20] GA Act, s 68(1).
I find that AE will act in the best interests of BF. It is clear that he has been doing all he can to protect her interests for many years and has continued to advocate for her in relation to her health as well is her finances. AE is prepared to use his own money to assist BF with her expenses.
I find that AE's appointment is consistent with the wishes of BF. While it may not be fair for a child to have this much responsibility for a parent at such a young age, fairness is not a consideration the Tribunal must take into account when appointing a substitute decisionmaker. In this case, it is clear that AE has the ability to pay his mother's ongoing bills, manage her current liabilities and communicate with her in a way that she can accept and understand.
AE also has the support of his family, who explained to me how they will monitor how the administration order is working and whether there has been any negative effect on the relationship between BF and AE. SS and DD have undertaken to make an application back to the Tribunal if they notice that the order is not working in BF's best interests or if they are concerned that AE is not coping with the role.
I am satisfied, and I find, that AE is suitable to be appointed as his mother's plenary administrator so that he can manage all aspects of her estate. I am therefore able to give effect to BF's wishes.
I will include a gifting authority of $400 per annum to allow AE to buy gifts on behalf of BF.
How long should the order run for before it must be reviewed?
When making orders, the Tribunal is required to fix a period for the review of the order.[21] The medical evidence states that BF's illness is longstanding with frequent relapses requiring regular hospitalisations. I am satisfied that BF's need for a substitute decisionmaker in relation to her finances is ongoing. I will therefore make these orders reviewable in the maximum period of time possible, which is within 5 years. The family is aware of the process of seeking an early review of the orders if required in BF's best interests.
[21] GA Act, s 84.
Orders
The Tribunal declares that the represented person, [BF] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate.
The Tribunal orders:
Administration
The administration order dated 13 February 2024 is revoked and substituted with an order in the following terms:
1.[AE] of [address] is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is authorised to expend up to a total amount of $400 per annum on gifts on behalf of the represented person.
3.The administration order is to be reviewed by 30 May 2029.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
31 MAY 2024
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