CC - [2005] WASAT 291

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: CC [2005] WASAT 291

MEMBER: MS H LESLIE (SENIOR SESSIONAL MEMBER)
MR E LEIPOLDT (SENIOR SESSIONAL MEMBER)
MR S JONGENELIS (SENIOR SESSIONAL MEMBER)

HEARD: 14 MARCH 2004

DELIVERED : 8 NOVEMBER 2005

FILE NO/S: PA 738 of 2004

BETWEEN: CC
Represented Person

Catchwords:

Guardianship - Administration - Capacity - Suitability - Fit and proper person - Plenary order

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(a), s 4(2)(c), s 4(2)(d), s 4(2)(f), s 43(1), s 43(1)(c), s 64(1)(a), s 64(1)(b)

Result:

The appointment of the Public Trustee as plenary administrator for CC be confirmed for a further five years
The appointment of the Public Advocate as plenary guardian for CC be revoked

Category: B

Representation:

Counsel:

Represented Person : Selfrepresented

Solicitors:

Represented Person : Self-represented

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The matter was heard on 14 March 2005 on which day the Tribunal’s decision was reserved. The Reserved Decision was subsequently handed down and orders were issued on 24 March 2005 confirming the appointment of the Public Trustee as Plenary Administrator for CC and revoking the order for guardianship. Some months later the Administrator requested that the Tribunal provide reasons for its decision. The same were delivered on 8November 2005. The Tribunal was satisfied that CC continued to be incapable of managing all aspects of his affairs and in need of an administrator and that the appointment of the Public Trustee rather than CC's partner was in all the circumstances appropriate.

Application and other orders

Orders for guardianship and administration (the original orders) were made with respect to CC on 2July 2004, by the Guardianship and Administration Board (GAB). Those orders provided that the Public Advocate be appointed limited guardian for CC, to determine issues of accommodation, health care and contact and that the Public Trustee be appointed Plenary Administrator for CC.
Subsequent to the making of the original orders, the jurisdiction of the GAB was assumed by the State Administrative Tribunal (the Tribunal) by operation of law. The Tribunal convened on 14March 2005 to review the original orders after one year as required by their terms. Before the Tribunal on that date also, was an application filed by CC (though technically unnecessary), seeking a review of the orders and a more flexible arrangement with respect to administration.

Background

The hearing was attended by a number of people. They were CC and his partner SG, CC's two adult daughters AN and CL (and with them, AN's husband GN), one of CC's brothers, LJC, and CC's former mother‑in‑law, HM. JH from the Office of the Public Advocate (OPA), JR from the Public Trustee's Office and LZ, a social worker from Oats Street also attended. All three also provided reports.
The attitude of those who attended to the orders is, in summary, varied.
In relation to guardianship, there appears to be a consensus that CC is now competent to make decisions regarding his personal affairs – where he should live and with whom, his medical and health care, and the contact and relationships that he should have with others. This is clearly supported by the professional reports. The only reservation appears to be that, perhaps understandably, some of the family members are concerned about CC's emotional vulnerability and the potential for him to be influenced and about his apparent decision to continue his relationship with SG and to limit his contact with them. Further reference to this will be made later in these reasons. It is not in dispute that CC will continue to reside at Oats Street to complete his rehabilitation, and that it is his stated intention thereafter to resume living with SG.
In relation to administration, SG wants all financial and legal decision‑making left to CC with her to assist him.
CC's view, as reported by JH following confidential discussions between JH and CC in the absence of SG, was that he recognised that he needs some assistance with the more complex issues of financial management and was happy for the Public Trustee to continue to manage the more complex aspect of his affairs, perhaps with a greater degree of input from him, and for there to be a staged return to him of the management of some of the day‑to‑day matters as outlined in LZ's report to the Tribunal. He is said to have commented positively about the improved relationship with the Public Trustee. From LZ's report, he appears to have made similar concessions to her. However, at the hearing in the presence of SG, CC expressed a different view, which was that SG take the place of the Public Trustee and manage the more complex aspects of his affairs. He also appeared to suggest that an alternative was that there be no order at all. He referred to a written submission he had prepared and which stated these views as reflecting what "we" (which the Tribunal understood to mean CC and SG) want. It is to be noted that this is not entirely consistent with what SG said to the Tribunal.
The view of all others present was that the Public Trustee should continue to manage CC's affairs.
The issues for determination by the Tribunal are therefore those of capacity and need (including the scope of any order) and, potentially, the identification of the most suitable administrator.

Capacity

The Tribunal must consider the issue of capacity as a precursor to the consideration of application for orders relating to an adult person.
Section 4 of the Act states:
"4. Principles stated
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in subsection (2).
(2)…
(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."
Section 43 of the Act states:
"(1) Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 —
(a) has attained the age of 18 years;
(b) 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; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian, the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint —
(d)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e)persons to be joint plenary guardians or joint limited guardians, as the case may require, of the person in respect of whom the application is made."
Section 64(1)(a) of the Act states that before making an administration order the Tribunal must be satisfied that a proposed represented person:
"(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; ... "

Evidence

The Tribunal had before it medical and other reports from a number of professionals involved in CC's care, including Dr KF, specialist in rehabilitation medicine, (report of 3March 2005 addressed to Mr G W, neurosurgeon), a clinical neuro psychologist, MV (dated 17January 2005 plus an annexed letter dated 21January 2005, both addressed to LZ), and from LZ (dated 4March 2005). The Tribunal also had the benefit of additional evidence from LZ who attended the hearing.
In summary, the professional evidence is to the effect that CC has made an enormous improvement since his injury, but continues to lack capacity in some areas.
Dr GF noted that CC was found to be within average levels for most of his key areas of cognition, but that there were areas of relative weakness in terms of his speed of information processing and in his executive skills; that his language function is still clearly compromised, being quite tangential and often straying from the initial theme of conversation. He expressed the opinion that CC has not yet demonstrated capacity for the Public Trustee and OPA to be removed as the external controllers of his affairs. He noted the main issues as being related to CC's impaired cognitive and language functioning, and by his likely susceptibility to emotional influence by others. Dr GF referred to the planned budgeting and money management components of CC's rehabilitation program, and stated that he anticipated that some form of less restrictive arrangement for CC could be put in place "in about six months time if he makes the expected rate of improvement". He also stated that there would need to be a further substantial improvement in his cognitive and language function before he could realistically return to employment. Dr GF went on to state his opinion that CC was competent to make decisions about his relationship and about his medical affairs.
MV's very detailed neuropsychological report expresses similar concerns and recommendations as Dr GF's, and in its conclusion refers also to executive, cognitive and language difficulties, and cautions against the return of complete control to CC of his financial affairs. The summary paragraph in her letter of 21January warrants inclusion:
"… the presence of some executive dysfunction … would caution against him having complete control of his affairs. His cognitive difficulties in association with the possibility if some emotional vulnerability raise concern regarding his ability to make significant financial decisions … and as such, at this stage some degree of continued involvement by a third party would appear to be in his interests. The provision of additional guidance and input from the multidisciplinary teams involved in his program at Oats Street in managing day‑to‑day financial issues would also be worthwhile. Further review by the [GAB] (sic) once he has demonstrated a consistent level of competency at this lower level would then be most appropriate …"
LZ notes in her report CC's language difficulties and processing deficits, difficulties in planning and organisation, problems with abstract concepts, some problems with orientation and difficulty in managing simple accounting processes. She also remarks on CC not readily recognising his planning and budgeting difficulties, and being difficult to engage in strategies to overcome them. She comments that his receptive language deficits may be responsible for this. She expresses concern about CC's ability to take care of all of his financial matters at this stage and recommends him being given an opportunity to demonstrate his ability in a progressive set‑up system, the details of which are set out in her report and which were settled after discussion between LZ and the team occupational therapist.
It is to be noted that no alternative expert evidence as to capacity was presented to the Tribunal.
As previously mentioned, whilst not speaking in detail about CC's capacity, the family acknowledged the enormous improvements made by CC, but expressed reservations about CC's vulnerability and susceptibility to influence and about the wisdom of some of his choices regarding his relationships. They endorsed the reservations of the professionals about CC's capacity to manage his affairs. From their response to information from others, the Tribunal also detected some concerns about the current arrangements for the support of SG, given CC's own current and future needs, and how this might be affected if an independent administrator were not involved.
SG takes the view that CC is competent and should manage his affairs in total with her to assist him and with the continuing assistance of his rehabilitation team. She denies that he is the subject of influence or that he can be manipulated contra to his best interests.
CC has expressed varying views on his capacity, including that he can manage alone or with informal assistance from SG, that he wants SG to manage his affairs in total, that he wants SG to manage the more complex aspects only and, elsewhere and significantly in the absence of SG, that he wants the Public Trustee to continue to manage the more complex aspects.

Findings

Having considered all of the evidence in this matter, the Tribunal makes the following findings.
CC continues to suffer from the effects of significant injury including head injury. The Tribunal accepts in total the professional evidence concerning CC's current level of incapacity, his emotional vulnerability and the potential for him to be the subject of influence. That evidence is consistent with the Tribunal's own conclusions having observed CC's demeanour in the hearing and having listened to his remarks. It is apparent to the Tribunal that he continues to suffer the effects of his injuries and that his higher‑level functioning and judgment remains impaired.
He continues to be incapable of making reasoned decisions concerning all aspects of his financial and legal affairs. The Tribunal accepts that it is in CC's best interests for his rehabilitation to include the kind of increased involvement in his affairs that the progressive step‑up system described in LZ's report would allow. The appropriate way for this to be effected will be referred to later in these reasons.
The Tribunal is satisfied on the balance of probabilities that the requirements of the Act in relation to administration have been satisfied and that CC is a person for whom an administration order could be made.
The Tribunal is not satisfied that the same is true in relation to guardianship. It is mindful of the comments of the family but, particularly in the light of the submission from OPA, the Tribunal accepts the clinical evidence and is satisfied that CC has the capacity to make these personal and lifestyle decisions himself, notwithstanding a level of vulnerability and notwithstanding that the decisions may be hard for his family to understand and accept. It appears that JH has explored with CC the reasoning behind some of the decisions that he has taken regarding his relationships and his contact with his family, and notwithstanding that the decisions may be thought unusual and against his interest by some, the Tribunal is satisfied that these are his decisions.

Need

The Tribunal is required to take into account the provisions of s 4(2)(c) of the Act, which provides that:
"(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."
and, pursuant to s 43(1)(c) and s 64(1)(b), the Tribunal may only make an order if it is satisfied that there is a need.

Evidence

It is clear from the evidence that there are a number of things that require attention with respect to CC's financial and legal affairs.
The Public Trustee provided comprehensive information as to the state of CC's financial and legal affairs. The Tribunal accepts it, though its detail is not repeated here. From the report and JR's evidence, it seems that there are a number of significant matters to be negotiated for CC. In the short term, the details of his redundancy are to be finalised with his employer. In the future, issues relating to disability insurance and potential eligibility for compensation will need to be pursued on his behalf. The interface between these three financial support mechanisms will have to be carefully negotiated to ensure a sufficient financial safety net for CC as the clinicians try to optimise his future functioning capacity. The balancing of CC's and SG's current financial needs will in the meantime have to be achieved. It appears this has been quite difficult in the past, as is described later in these reasons.

Findings

Having considered all of the evidence in this matter, the Tribunal makes the following findings in relation to the need for an administrator.
Having found that CC is competent to make personal and lifestyle decisions himself, it is not necessary for the Tribunal to address the need for guardianship.
The Tribunal is satisfied that CC has need of an administrator to manage all aspects of his affairs but, as will be seen, the Tribunal agrees with the clinicians' recommendations that there is scope for CC to have a greater role in the running of the less complex aspects of his affairs. The scope of such orders is referred to later in these reasons.

Wishes of the proposed represented person

Section 4(2)(f) of the Act requires that the Tribunal:
"(f) … 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."
The Tribunal remains concerned about CC's emotional vulnerability, and the potential for him to put the needs of SG before those of himself for whatever reason. It concerns the Tribunal that when given the opportunity to discuss the outcome of these proceedings with his independent advocate in the absence of SG, (and at other times in discussion with LZ), CC chose the continuation of the Public Trustee. The Tribunal accepts that this is what occurred. JH is an experienced OPA advocate/guardian and the Tribunal accepts that what occurred in this instance is that CC expressed a different view in the hearing and not that JH misunderstood his wish as expressed to her.
CC's views have been canvassed in these reasons. Notwithstanding these views, the Tribunal takes the view that orders for administration ought be made in his best interests and, as will be seen, that an administrator not of his choice (at least as expressed to the Tribunal at the hearing) be appointed.

Office of the Public Advocate (OPA)

In this case, the OPA representative JH, advocating in CC's best interests, supports the continued role of the Public Trustee in the more complex aspects of CC's affairs notwithstanding the apparent change in view of CC.
She also supports the revocation of the guardianship order, notwithstanding the comments of the family and the reservations of the clinicians (who, it is to be noted, also support the revocation) about CC's emotional vulnerability. JH confirms that CC's relationship choices and the concerns of his wider family have been explored with him and she is satisfied that he has explained his choices to her logically despite their apparent consequences.

Suitability of Nominee

Before the Tribunal can appoint an administrator, it must be satisfied that the appointee is a fit and proper person and that it is in the best interests of CC for that person to be appointed.
In this instance, if an order is to be made, the alternatives available to the Tribunal are to reappoint the Public Trustee or to appoint SG. It is therefore necessary to consider SG's suitability and whether this best serves CC.

Evidence

CC's evidence is that he and SG have been in a relationship for approximately seven years. It appears that there have been ups and downs in that relationship. He confirmed that, prior to his injury, the payment of the household bills and the running of the financial side of things were done primarily by him.

SG gave evidence about herself and her circumstances. She lives in CC's house with her 11‑year‑old daughter. Her other (teenage) daughter now resides at her fathers house. At the time of the accident, SG was not in paid employment. She spoke variously of the study and work options that she had been considering at the time of the accident. Her last paid job was approximately seven years ago at about the time she met CC. Her past work has included cleaning, bar work and working as a shop assistant. The extent of her work related financial experience appears to be responsibility for the cash register and takings tallies. She states that she "managed my own household" prior to moving in with CC.
It is to be noted that, despite having heard CC articulate a wish for her to run his financial affairs, on a number of occasions during the hearing SG expressed her preference for CC to be "in charge" and to "ultimately being the one who decides" with her playing a secondary role as "a sounding board". Others have expressed the view that if SG were appointed, this is essentially what would happen in any event.
She described suffering from a disability. When pressed she stated that she had suffered from depression. She stated that she was "grief stricken" by CC's injury. When pressed further, she acknowledged that she was on the methadone program, but denied that this was for drug addiction, insisting that it was for pain relief for a physical ailment. She conceded that she had been put on the methadone program in her late teens or early 20's, referring to "mistakes that she had made". When pressed further she conceded that she was "still on" the methadone program. From her comments, the Tribunal concluded that this has been the case continuously for at least the last seven years.
SG disputed the suggestions of others that she and CC were not a couple. She denied that they had separated or that she had accepted money to move out of CC's house in the days prior to CC's injury. (This conflicts with information from the Public Trustee). She was clearly distressed by the suggestion from others that she had tried to kill CC.
She denied that CC is manipulated by her or by others. She insisted that his written submission to the Tribunal is in his own words typed by him and that she is not, and never has been, an influence; that CC is a strong person who cannot be manipulated. She appeared to suggest that any doubt by CC as to his abilities could be put down to his confidence having "taken a bit of a battering". She insisted that she was not standing in the way of CC having contact with his children.
JH, speaking as advocate for CC in his best interests, expressed the view that it would not be in CC's best interest for SG to be his administrator. She referred to the period since CC's injury as having been very difficult for SG to manage emotionally and that, physically, it is affecting SG's health. She referred to the significant number of major decisions confronting CC, and his need for a very strong advocate who is "very together in terms of their emotional state and their processes and practices". JH referred to the difficulties that the Public Trustee and the Public Advocate have had in having SG involved in processes concerning CC. She expressed the view that the administration would be very difficult for SG to manage and that a better role for her might be to support him personally and with his day to day matters, leaving the bigger issues for the Public Trustee.
LZ referred to the traumatic effect of CC's injury on SG, and expressed concern about the difficulties that the formal accountability requirements of administration would cause SG, and the pressure that a formal role as administrator would put on SG and on her relationship with CC.
CC's brother, LJC, gave evidence that during CC's time in hospital, SG had come to him in financial difficulty and had told him that CC did not trust her with his banking PIN number. This, and the fact that CC had always run his own finances, causes LJC concern about giving that control to SG now. He spoke of having always had a good relationship with CC and that this had continued during his early rehabilitation. When they had had long discussions about many things, including SG's alleged difficulties in getting money for things she needed out of the Public Trustee. Her financial demands had concerned him. After CC's move to Oats Street and SG's increased involvement with him, some animosity had developed and LJC had ceased to visit.
CC's daughters were both quite distressed in the hearing and spoke only briefly. Neither considered that SG ought be administrator. AN expressed concern that CC might "be emotionally led astray" in relation to some guardianship areas. She spoke briefly of CC borrowing money from her because of SG's demands, and asked that the original orders remain. She confirmed to the Tribunal that she spoke for "the rest of the family" – the Tribunal notes that CC has two other brothers and one sister, and also two sons. CL spoke of her concerns about the level of conflict and her view that, given the pressures of appointment, SG might not be fit enough "emotionally" to do it. HM did not wish to comment on financial matters but expressed concern that, in relation to contact matters, CC was not the one making the decisions, implying that SG was preventing contact between CC and his children.
In the Public Trustee's evidence, JR spoke of the current budget allowing for a very minimal surplus at the end of each fortnight and being "very tight". At the moment, CC's funds are being used to meet his cost including rehabilitation accommodation and services, and also all utilities and household expenses (including the mortgage) for SG, plus a personal allowance of $200 per week. It appears there are fortnightly cycles when things are "in the red". He commented specifically upon the unreasonably high current phone bill for SG's home (SG conceded that the problem seems to be her daughter's use of calls to mobile numbers) and the need to look at reducing some of the utilities expenditure.
JR's report refers to ongoing demands for payment of numerous accounts by SG having provided no opportunity for an accumulation of funds. He reported concerns in relation to the manner in which SG had maintained CC's property. He also reported that SG "has obstructed and impeded the Public Trustee in her efforts to manage [CC's] affairs" and has "maintained a very aggressive and offensively abusive manner until recent weeks whenever in contact with [the] office …"
He also spoke of the somewhat arbitrary allowance figure paid to SG, and the Public Trustee's inability to get confirmation of any other income received by SG. When pressed, SG conceded that she received a parenting payment of $160.00 per fortnight from the father of her child. She insisted that she had told the Public Trustee of this. The trust officer was equally definite that firm information had not been received.
JR also provided information which throws doubt on the continuity of the relationship between CC and SG, and of their future intentions. It appears also that there may be an issue about SG's disclosure of information to Centrelink following a period of separation. SG confirmed "… I'm probably going to have to pay Centrelink back some money ..." given information provided by the Public Trustee to Centrelink at some point.
It seems to the Tribunal that SG's capacity to contribute financially may also have to be considered from an independent perspective given the tight budgetary constraints and the likelihood that in the next three to six months CC's own expenses may increase as his rehabilitation progresses.

Findings

In all the circumstances, particularly given SG's apparent wish not be given full responsibility for CC's affairs, the Tribunal takes the view that it would not be in CC's best interests for SG to be appointed as his administrator. Given what needs to be done, it is the Tribunal's view that SG does not have the necessary financial experience to conduct CC's complex affairs; nor given her personal circumstances and background, is it in CC's best interests for her to be appointed his administrator. Particularly having had the opportunity to observe SG and hear from her in the hearing, and to observe her interaction with others and having heard of the difficulties in her dealings with others, the Tribunal also adopts the reservations expressed by others as to SG's emotional state and the potential detrimental effect of appointment on her, her relationship with CC, and his financial and legal affairs. It appears further, to the Tribunal that, particularly given the tight financial situation, experience would indicate that SG has difficulty balancing her own financial needs and those of CC.
Although there appear to have been some difficulties in the relationship between SG and the Public Trustee, the Tribunal is satisfied that the Public Trustee has at all times endeavoured to find a balance in pursuing the interests of CC and have acted appropriately in the management of his affairs. There is nothing in the past performance of the Public Trustee that would contraindicate a reappointment.
In all the circumstances, the Tribunal takes the view that CC's interest would be better served by the reappointment of the Public Trustee.

Plenary or Limited Order

Section 4(2)(d) of the Act constrains the Tribunal to appoint only a limited guardian, rather than a plenary guardian, if such an appointment would be sufficient in the view of the Tribunal to meet the needs of the person in respect of whom the application is made.
The underlying philosophy of the Act is that the Tribunal act in a way that imposes the least restriction possible on the proposed represented person's freedom of decision and action.
In the circumstances of this case, the Tribunal takes the view that the plenary order should continue. Particularly in view of the nature of CC's estate, the tightness of the budget and the potential increase in the cost of his rehabilitation, it is the Tribunal's view that all aspects of CC's affairs should continue to be managed by one person, albeit with an informal mechanism via Oats Street for allowing CC a greater involvement. Particularly given the difficult relationship between SG and the Public Trustee, the Tribunal does not think that it is desirable that an order be crafted separating out from the control of the Public Trustee what might be described as the day to day aspects for management in a less formal way. Given that SG and CC are currently residing apart with, to some extent, competing financial needs and given the continuing clinical concerns about CC's capacity in relation to even the less complex matters, such an arrangement is thought not to be in CC's best interests.

Conclusion

In relation to all applications, the Tribunal is required by s 4(2)(a) of the Act to consider the best interests of the proposed represented person.
In all the circumstances, the Tribunal considers that the making of the orders set out hereunder is in CC's best interests.

Orders

The Tribunal, having considered all the evidence both written and given at this hearing, orders:
1.That the Guardianship order be revoked; and
2.That the Plenary Administration Order in favour of the Public Trustee be confirmed.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS H LESLIE, SENIOR SESSIONAL MEMBER