BS - [2020] WASAT 140

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   BS [2020] WASAT 140
MEMBER:   PRESIDENT PRITCHARD
MR J MANSVELD, MEMBER
DR J CAUNT, SESSIONAL MEMBER

HEARD:   5 OCTOBER 2020
DELIVERED          :   5 OCTOBER 2020
PUBLISHED           :   5 NOVEMBER 2020
FILE NO/S:   GAA 3354 of 2020

BS
Represented Person

Catchwords:

Administration - Whether represented person suffers from mental disability - Whether person is unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate - Where represented person involved in motor vehicle accident resulting in traumatic brain injury - Where represented person previously experienced homelessness, substance abuse and pre-accident personality traits - Whether inability to manage all or any part of his estate a result of mental disability - Whether alternative to Public Trustee can and should be appointed, where no alternative put forward

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 64

Result:

Administration order made
Public Trustee appointed

Category: B

Representation:

Counsel:

Represented Person

In Person

Solicitors:

Represented Person

N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression.)

Introduction

BS has applied pursuant to s 17A of the Guardianship and AdministrationAct 1990 (WA) (GA Act) for the review of a decision made by a single member of the Tribunal on 4 August 2020 (Review Application).
In short, in that decision, the learned member appointed the Public Trustee as plenary administrator of BS's estate; directed the Public Trustee to pay $405 a week to BS, so that he could be responsible for his living expenses, with the Public Trustee to retain responsibility for the payment of BS's outgoings on rent and water. The learned member also ordered that those arrangements were able to be suspended if they were not working in BS's best interests. Those orders were to be reviewed by 12 December 2021.
BS does not accept that the requirements of the GA Act for the appointment of an administrator are met in his case. He says he is capable of making reasonable judgments in respect of his estate, and does not think the Public Trustee should be appointed as his administrator. However, he does not propose any other entity or person for appointment as administrator if one is required.
For the reasons which follow, we have concluded that BS is unable, by reason of a mental disability, to make reasonable judgments in respect of his estate, and that he is in need of an administrator. There being no alternative but the Public Trustee, the Public Trustee should continue in the role of administrator. The orders made by the member on 4 August 2020 will largely be confirmed, save to amend the date for the review of the administration order to a period about 18 months from now, namely 5 April 2022.

Factual background

We had before us on the Review Application all of the materials that were before the learned single member on 4 August 2020.
One of the documents before us is a report provided by Dr H of 4 December 2019, which provided background to BS's present situation. It is unnecessary to set out all of that background here. The primary or the most significant, part of that background is that BS suffered a very serious motor vehicle accident in 2007 when, as a pedestrian, he was struck by a motor cycle. That resulted in him sustaining a very significant traumatic brain injury that required an extensive period of hospitalisation.
BS's brain injury involved frontal lobe damage, the consequences of which are outlined below. BS's brain injury was the start of a chain of events that have led to BS being the subject of orders of the Tribunal.

The nature of the review

When conducting a review under s 17A of the GA Act the Tribunal is conducting a hearing de novo, which requires consideration of all material that was before the Tribunal on the previous occasion, and the material raised at the hearing of the Review itself.
At the hearing today we very helpfully had a contribution from BS and from a representative of the Public Trustee.
The primary concern of the Tribunal is the best interests of BS.[1]
[1] GA Act, s 4(2).
As the GA Act requires us to do, we have proceeded on the basis that every person is presumed to be capable of managing their own affairs and making reasonable judgments about their estate.[2] We have also proceeded on the basis that, where possible, the needs of a represented person should be met otherwise than by the making of an administration order, if it is possible to adopt a less restrictive alternative.[3]
[2] GA Act, s 4(3).
[3] GA Act, s 4(6).
We have taken into account BS's views on the questions that arise under the GA Act[4] however, we are not bound by his views on the matter. We have taken into account BS's views, which were expressed in no uncertain terms, that an administrator should not be appointed, as one is not required, and that he would do better on his own without having to pay the fees for an administrator: in particular, to the Public Trustee. BS appeared to dispute the medical evidence that is before the Tribunal, however, ultimately his primary dispute is with the question of whether he is capable of managing his own financial affairs.

Medical evidence

[4] GA Act, s 4(7).

The Tribunal had before it medical reports from Dr H and Dr B. These were before the Tribunal on the last occasion. Some years ago now, on 30 April 2012, BS underwent testing by Dr V. The Tribunal also had before it Dr V's report. We have taken all of those reports into account.

The criteria for the appointment of an administrator under the GA Act

In relation to the appointment of an administrator, the GA Act requires the Tribunal to be satisfied of three questions: first, whether the represented person suffers from a mental disability; secondly, whether by reason of that mental disability, the person is unable to make reasonable judgments in respect of matters relating to all or part of their estate; and, thirdly, whether the person is in need of an administrator. If those questions are answered yes, then the Tribunal has to consider subsidiary questions, such as the appointment of the administrator and who that should be.[5]

Are the requirements for the appointment of an administrator satisfied?

[5] GA Act, s 64(1).

Turning to the first of those questions, in our view there is no doubt, on the evidence, that BS has a mental disability. As a result of the motor vehicle accident, to which we have referred, BS sustained a traumatic brain injury with frontal lobe impairment. He also has a diagnosis of an organic personality disorder and intermittent secondary depressive disorder.
The next question is whether by reason of that mental disability, he is unable to make reasonable judgments in respect of matters relating to all or any part of his estate. That is a more difficult question.
An inability to make reasonable judgments in respect of one's estate does not of itself constitute a sufficient basis for the making of an administration order. Individuals without a mental disability are entitled to make choices in respect of their estate which others might regard as unreasonable, and the existence of a mental disability of itself does not constitute the basis for the making of an administration order. People with a mental disability may, depending on the nature of the disability, be capable of making reasonable decisions in respect of their estate.
It is only if the Tribunal is satisfied that, on the basis of evidence before it, a person has a mental disability and that it is by reason of that mental disability that they are unable to make reasonable judgments in respect of their estate, that the criterion under the GA Act will be satisfied. As indicated above, the question whether, by reason of his mental disability, BS is unable to make reasonable judgments in respect of his estate, is not free of difficulty. It is made difficult by BS's history of homelessness, substance abuse, and suggestions of difficult preaccident personality traits.
Although BS has overcome many of the challenges that he has faced in his life, which is to his great credit, the concerns raised by the medical evidence in relation to his capacity continue to apply. The medical evidence before the Tribunal in the reports of Dr H and Dr B, was supplemented by the evidence that they gave to the Tribunal, particularly at the hearing on 12 December 2019. We have reviewed the transcript of that hearing. The upshot of their evidence was that they have doubts about BS's ability to make reasonable judgments in respect of financial matters as a result of his mental disability.
In respect of the question of the link between BS's mental disability and his ability to make reasonable judgments, we have also taken into account BS's evidence today. In more recent times, BS has, to his great credit, been able to get his life on track, and live a more stable life. He has housing, and he appears to be able to manage the amount of money that he has been given by the Public Trustee on a weekly basis, as a result of the orders made by the Tribunal.
However, BS's evidence today, in response to our questions about how he manages his finances, left us with no confidence at all that he is able to make reasonable judgments in respect of anything other than very simple financial issues concerning his estate. A couple of examples will suffice to illustrate the point. BS told us that he does not have a budget to manage his finances;[6] that he does not know how much he requires for food each week;[7] that he spends his funds as he needs them;[8] and that although there were suggestions raised that he may have had a Synergy bill or bills unpaid in the past, he accepted he could have forgotten to pay the bill on time, 'who knows'.[9] BS claimed that bills are not sent to him by the Public Trustee for payment by him.[10] However, evidence from the Public Trustee's representative today confirmed that that is not the case. BS told us that when a bill comes in, he simply waits until the next pay to pay it, and if an unexpectedly large bill turns up, he would just ignore it.
[6] ts 4, 5 October 2020.
[7] ts 4, 5 October 2020.
[8] ts 5, 5 October 2020.
[9] ts 6, 5 October 2020.
[10] ts 6, 5 October 2020.
That evidence, given by BS today, seemed to us to be entirely consistent with the evidence that previously was given by the medical practitioners to whom we have referred, and suggests that BS's mental disability, which he has suffered as a result of his motor vehicle accident, means that he is unable to engage in the necessary mental processing to make reasonable judgments about financial matters.
In addition, we mention the fact that in December of 2019, orders were made by the Tribunal for a fortnightly allowance to be paid. Very shortly thereafter, BS requested that that be a weekly allowance instead. He told the single member at the hearing on 4 August 2020 that he 'just preferred it that way', and denied any suggestion that the arrangement was designed to make it easier for him, so that he did not have to manage a larger amount of money over a fortnight. However, the fact is that BS did not use the opportunity to demonstrate that he had capacity to manage his finances over a period beyond a week at a time.
At the hearing of the Review Application, it emerged in the evidence that BS has had some loans of money, in small amounts, from a friend of his, Mr G, and that those loans have been made when BS finds himself in a position that he is without funds to make discretionary purchases.[11]
[11] ts 8, 5 October 2020.
Another example which gave us cause for concern was the evidence on the last occasion that BS favoured the appointment of a private trustee as an administrator, if one was required. However, BS had clearly not given any thought to the practicalities of such an arrangement, whether fees would be charged and in what amount, and whether that would be a more financially advantageous arrangement for him than the present appointment of the Public Trustee.[12] It was an example, in our view, of BS being fixated on a particular viewpoint, namely, that the Public Trustee was charging fees he regarded as excessive, and that a private trustee would be better, but without being able to reason why that conclusion was justified.
[12] ts 4-5, 4 August 2020.
That is not to suggest that BS has to establish anything at all. We started with the presumption that BS has capacity to make reasonable financial decisions, but the medical evidence supports the contrary conclusion. BS's evidence at the hearing of the Review Application was entirely consistent with that medical evidence, and reinforces the conclusion that he is without capacity to make reasonable financial judgments, as a result of his mental disability.
Having regard to the totality of the evidence, therefore, we are satisfied on the balance of probabilities, and we find, that BS is, by reason of his mental disability, unable to make reasonable judgments in respect of matters relating to all of his estate, other than in respect of very simple financial matters.
We turn now to explain why we are satisfied that BS is in need of an administrator of his estate. We have taken into account BS's view that he does not need an administrator. We are unable to agree.
BS has a modest lump sum which needs to last until he is eligible for a disability pension, which will not be until November 2021, at the earliest. It is crucial that the money that BS has lasts, to ensure that he is able to fund his basic living expenses, until November 2021.
There is no one else who is available to assist with any informal decision-making arrangements. The support which BS had previously received from support organisations in his daily living is no longer being utilised by him.
In this case, there is no less restrictive means available for financial decisions to be made, otherwise than by the appointment of an administrator. No alternative administrator was suggested, apart from the Public Trustee. BS has been concerned about the fees charged by the Public Trustee. It is not for us to comment on that matter, other than to observe that a significant rebate appears to be involved in the fees. There is nothing to suggest that lesser fees would be charged by a private trustee but, in any event, no alternative was suggested. In the absence of any alternative appointment option, the Public Trustee should continue in the role of administrator of BS's estate.
We are also satisfied that it is necessary that the administration order confer plenary functions on the Public Trustee, in the best interests of BS. However, the trial which has been proceeding, pursuant to which the Public Trustee pays BS a set amount per week, should continue. That confers on BS the greatest financial freedom possible, having regard to his capacity, and represents the least restrictive arrangement that is possible in all of the circumstances.
The member nominated a review period of 12 December 2021, by which time BS should have become eligible for a Centrelink pension. We are of the view that the appropriate timeframe for a review is 18 months from today. Within that period, a resolution of two key questions should be possible: namely, whether BS is likely to receive a payment of insurance through his superannuation fund (a matter which is currently being explored) and, alternatively, whether BS will be eligible for a pension through Centrelink. Those decisions should be made within that 18-month period. Consequently, the time for a review should be 18 months, so that the administrator order will be reviewed by 5 April 2022.

Orders

The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, BS, is:
(a)unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all of his estate; and
(b)in need of an administrator of his estate.

2.The orders made by the Tribunal on 4 August 2020 are varied as follows.
3.The Public Trustee of 553 Hay Street, Perth, Western Australia 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).
4.The Public Trustee is directed to pay $395.00 per week into the represented person's bank account. The represented person is to be responsible for the payment of his living expenses, and the Public Trustee is responsible for payment of the represented person's outgoings on rent and water.
5.If at any time the Public Trustee forms the view that the above arrangement is not working in the represented person's best interests the arrangement may be suspended pending the next review.
6.The administration order is to be reviewed by 5 April 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EH
Associate to the Honourable Justice Pritchard
5 NOVEMBER 2020