BSL
[2021] WASAT 69
•14 MAY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: BSL [2021] WASAT 69
MEMBER: PRESIDENT PRITCHARD
MR J MANSVELD, SENIOR MEMBER
MS R PETRUCCI, MEMBER
HEARD: 15 MARCH 2021
DELIVERED : Ex tempore
PUBLISHED : 14 MAY 2021
FILE NO/S: GAA 4847 of 2020
BSL
Applicant
Catchwords:
Guardianship - Application pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) - Application to revoke administration order or appoint family member as administrator - Where conflicting medical reports as to represented person's capacity to make reasonable judgments in respect of estate
Legislation:
Guardianship and Administration Act 1990 (WA), s 17A, s 64, s 68
Result:
Application allowed in part
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
Solicitors:
| Applicant | : | 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
This is an application by Mr BSL pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) for a review of a decision made by a single member of the Tribunal on 11 November 2020 to appoint the Public Trustee as the plenary administrator of his estate.
The review has been sought because Mr BSL is of the view that he does not require an administrator and that he is capable of making his own decisions about financial matters. In the alternative, he is dissatisfied with the appointment of the Public Trustee as his administrator and would prefer to have his sister Ms DJ appointed to that role.
Evidence before the Tribunal
In the hearing we had the benefit of hearing from Mr BSL; from his sister Ms DJ; and from Dr O, a doctor who most recently assessed Mr BSL.
We have also had regard to a number of medical reports in relation to Mr BSL. These include the reports of Ms Z, a senior clinical neuropsychologist who saw Mr BSL in 2015, and who provided a report of 8 December 2015 and a further report of 8 January 2016; Dr N's 11 December 2019 report; and Dr O's written report of 4 November 2020. We will turn to those briefly in a moment.
Criteria for the appointment of an administrator
Section 4 of the GA Act sets out the fundamental principles to be observed by the Tribunal in these proceedings. We have taken into account these principles. We started with the presumption that Mr BSL is capable of managing his own affairs and making reasonable judgments in respect of matters relating to his estate. We have also taken into account his wishes and the imperative under the GA Act to consider the least restrictive option that is open in all of the circumstances.
Section 64 of the GA Act sets out the requirements for the appointment of an administrator. The Tribunal has to be satisfied that Mr BSL 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, secondly, that he is in need of an administrator of his estate.
Unable by reason of a mental disability to make reasonable judgments
The definition of 'mental disability' in the GA Act includes an acquired brain injury.[1] The information before us from the report of Ms Z indicated that in 2011 Mr BSL suffered an acquired brain injury as a result of being seriously assaulted. The report of Ms Z indicated that it was likely that as a result of that assault, but possibly also as a result of substance abuse, that testing of Mr BSL suggested that he had cognitive difficulties.
[1] GA Act s 3.
It is not necessary to set out all of those cognitive difficulties. Broadly, they involved informationprocessing and executive decision-making functions which impacted on Mr BSL's ability to learn and to recall information. There were poor memory issues as well. These difficulties led to concern being expressed about Mr BSL's ability to manage large sums of money and that he was vulnerable to financial exploitation.
Against that background, we had the more recent report of Dr O of 4 November 2020. As a result of conducting two forms of testing, the Standardised Mini-Mental State Examination (MMSE) and the General Practitioner Assessment of Cognition test (GPCOG), Dr O formed the view that Mr BSL was capable of making decisions in respect of simple financial matters. However, Dr O was unsure about Mr BSL's ability to make complex financial decisions. Dr O noted that Mr BSL's ability to make complex financial decisions would depend on the complexity of the decision and Mr BSL's level of understanding. In his evidence at the hearing, Dr O maintained his view that as a result of that testing, Mr BSL did have the capacity to make decisions, certainly simple ones, in relation to financial matters. The score that Mr BSL reached on the MMSE test was within the normal range, as was his score in the GPCOG test.
We asked Dr O about the results of Ms Z's analysis and he indicated that he would defer to the opinion of someone with experience in neuropsychology, as Ms Z has. Having regard to the incongruity between the brain injury and its consequences for cognitive thinking (as Ms Z reported) and the results of the screening tests in the MMSE and GPCOG tests (as Dr O recorded), we are not persuaded that the cognitive difficulties Mr BSL suffered as a result of the acquired brain injury have resolved or, at least, have resolved completely.
In those circumstances, we are of the view that Mr BSL remains a person who is unable, by reason of a mental disability, namely his acquired brain injury, to make reasonable judgments in respect of matters relating to all or any part of his estate.
However, there is an additional feature of the evidence today that has caused us some concern about Mr BSL's decision-making ability. Mr BSL gave evidence today that he is living with the experience of having voices in his head, constantly talking to him. His evidence was that those voices have decreased in number over the years but that he still has 'about four voices' who are constantly talking to him in his head.
We are concerned that Mr BSL's experience of hearing voices, of itself makes thinking and decision-making difficult, because of its intrusion on the reasoning process in which Mr BSL has to engage. That is quite apart from the possibility that the 'voices' might, in the end, give Mr BSL poor advice or poor direction as to what he should do. We were relieved to hear Dr O say that he would be recommending Mr BSL have a further assessment by the mental health team in the prison, and we very much hope that this will be able to be conducted before Mr BSL is released from prison, so that something can be done to assist him in managing that difficulty. Mr BSL's report of hearing these voices confirmed the conclusion that Mr BSL has a mental disability which impacts on his ability to make reasonable judgments in respect of financial matters.
In need of an administrator
We are also satisfied that Mr BSL is in need of an administrator of his estate. In the circumstances, there is no informal decision-making process that would be an adequate alternative for having the assistance of an administrator.
We have reached this conclusion particularly in light of the circumstance that in about three weeks' time Mr BSL will be released from prison. He will have a lot of decisions to make in relation to establishing himself in the community, finding some accommodation, getting used to living on a pension which he has to make last for a fortnight, and so on.
Who should be administrator
We turn next to the question of who should be appointed the administrator of Mr BSL's estate. Section 68 of the GA Act sets out the requirements for who can be appointed an administrator.
Ms DJ has indicated that she is willing to be appointed. We raised with her our concern that sometimes the appointment of a family member can lead to difficulties in family relationships. There is a potential for conflict between the person who is subject to an administration order, and that administrator. We are still concerned about that possibility, but we are confident that Ms DJ is aware that if there is a difficulty of that kind, she can return to the Tribunal and apply for someone else to be appointed the administrator of Mr BSL's estate.
We are also somewhat assured by the fact that Mr BSL appears to appreciate that his sister will be there to assist him and that he will have to defer to her guidance in the event that there is a disagreement between them about money. In all of these circumstances we are satisfied that Ms DJ meets the requirements for administrator under the GA Act, and we are satisfied that she should be appointed.
Terms of the administration order
We are satisfied that a plenary administrator should be appointed. In terms of the duration of the order we are of the view that a short-term order is desirable in all of the circumstances. We have formed the view that a review in about 12 months' time will be best so that Mr BSL has the opportunity to come back to the Tribunal, and the Tribunal can consider his progress following his release from prison, and make a decision then about whether or not the requirements of the GA Act for the appointment of an administrator continue to be satisfied or not.
Orders
The orders that we will make today are as follows:
1.The Tribunal declares that the represented person, BSL 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 administration order dated 11 November 2020 is set aside and the following order is substituted for it.
3.Ms DJ of [address] is appointed plenary administrator of the represented person's estate (which the Tribunal notes does not include the sum paid on trust by the Criminal Injuries Compensation Assessor to the Public Trustee on behalf of the represented person) with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
4.This administration order is to be reviewed by 15 March 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
GD
Associate to the Honourable Justice Pritchard
14 MAY 2021
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