CM and TM
[2015] WASAT 48
•6 MAY 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: CM and TM [2015] WASAT 48
MEMBER: DR D STEPNIAK (SENIOR SESSIONAL MEMBER)
HEARD: 15 DECEMBER 2014
DELIVERED : 22 APRIL 2015
PUBLISHED : 6 MAY 2015
FILE NO/S: GAA 4831 of 2014
BETWEEN: CM
Applicant
AND
TM
Represented Person
Catchwords:
Guardianship and administration Applications for appointment of administrator Whether person for whom administration order may be made Whether person in need of administrator Less restrictive alternative to the appointment of administrator Views and wishes of the person Application for administration order dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2), s 4(4), s 4(7), s 64, s 64(1)(a), s 64(1)(b)
Rules of the Supreme Court 1971 (WA), O 70, r 1
Result:
Administration application dismissed
Summary of Tribunal's decision:
This is an application by a daughter and primary care giver of the represented person, seeking appointment as his administrator in order to assist the represented person's understanding and provision of legal advice in his civil action seeking compensation for injuries sustained in a motor vehicle accident.
The Tribunal declares that TM is a person for whom administration orders could be made, but finds that he is not in need of an administrator in view of less restrictive means by which his needs may be met.
Category: B
Representation:
Counsel:
Applicant: In Person
Represented Person : Mr J D'Angelo
Solicitors:
Applicant: N/A
Represented Person : D'Angelo Legal
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
The legislative framework
The Guardianship and Administration Act 1990 (WA) (GA Act) sets out the framework under which an administration application may be brought and the matters about which the Tribunal must be satisfied before an administration order can be made.
Section 64 of the GA Act, states that in order to appoint an administrator of a person's estate, the Tribunal must, pursuant to s 64(1)(a), be satisfied that that person is unable, by reason of a mental disability, of making reasonable judgments in matters relating to any or all of her estate, and pursuant to s 64(1)(b) of the GA Act, must also be satisfied that the person is in need of an administrator of the estate.
Section 3 of the GA Act states that:
(1)In this Act, unless the contrary intention appears …
mental disability includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia;
The GA Act's provisions relating to the appointment of an administrator are subject to the principles set out in s 4 of the GA Act, which states:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)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.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, 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 District Court's Consolidated Practice Direction Civil Jurisdiction (last revised 20 May 2013) (Practice Directions) governs the representation of parties who are incapable of managing their affairs in respect of proceedings in 'civil matters commenced or being conducted in the District Court' (Pt 1.2).
Part 10 of the Practice Directions addresses the application of the Rules of the Supreme Court 1971 (WA) (RSC) O 70 regarding the representation of 'persons under disability', and the Tribunal's appointment of representatives for incapable persons pursuant to the GA Act.
10.1Rules of the Supreme Court 1971 (WA) ('RSC') Order 70 rule 1 defines a 'person under a disability' to be an infant, a represented person within the meaning of the Guardianship and Administration Act 1990 (WA) ('GAA') or a person 'who, by reason of mental illness, defect or infirmity, however occasioned, is declared by the Court to be incapable of managing his affairs in respect of any proceedings to which the declaration relates'.
10.2The GAA grants to State Administrative Tribunal ('SAT') the power to make findings as to a person's capacity to manage their affairs and to make appropriate orders for the representation of people unable to do so. The Court recognises that the expertise in the appointment of representatives of incapable persons resides with SAT. Accordingly, a person seeking to commence or defend litigation on behalf of an incapable person who is not an infant should first seek a guardianship or administration order pursuant to the GAA. The Court will not usually make a declaration that a person is incapable of managing their affairs for the purpose of making that person a person under a disability within O 70.
10.3A person appointed to represent an incapable person under the GAA does not need to make an application to act as a next friend, unless the party became a represented person after the action was commenced (RSC O 70 r 3).
10.4A person appointed to represent an incapable person must act by a solicitor. The solicitor must file with the writ or appearance a copy of the order by which the next friend was appointed to represent the incapable person (RSC O 70 r 3).
Background
The application relates to TM, a 59 year old Cambodian man who arrived in Australia as a refugee in 1985. He is married with two daughters, CM (the applicant) and JM, and his son (CYM).
On 11 February 2009, TM was involved in a motor vehicle accident and subsequently commenced legal proceedings in the District Court seeking compensation for injuries sustained as a result of that accident.
The applicant is TM's daughter, CM who seeks to be appointed her father's administrator in order to assist due to his perceived inability to understanding and provide legal advice in his civil claim.
Issues
The main issues for determination by the Tribunal when addressing an administration application are:
1)Is the person a person for whom administration orders may be made? and
2)Is the person in need of an administrator?
Is the person a person for whom administration orders may be made?
In answering this question, the GA Act requires the Tribunal to determine whether TM 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. The Tribunal looks for evidence of the two required elements, a 'mental disability', and 'an inability to make reasonable judgments in relation to at least part of his estate due to that mental disability' (s 64(1)(a)).
In determining these two elements, the Tribunal was greatly assisted by medical reports from consultant psychiatrists AJM and FKN, consultant neurologist RSG, specialist clinical psychologist and clinical neuropsychologist MC and clinical neuropsychologists MV.
Mental Disability
The GA Act defines mental disability as 'including an intellectual disability, a psychiatric condition, an acquired brain injury, and dementia' (s 3). Although the medical reports submitted to the Tribunal had all been prepared for the purposes of the motor vehicle accident claim, the examinations, assessments and opinions of medical experts were invaluable to the Tribunal's determination of whether TM has a mental disability as defined in s 3 of the GA Act. I propose to briefly outline the evidence presented in each of the medical reports.
AJM Consultant psychiatrist
AJM's report, dated 3 June 2014, is based on clinical assessment he carried out on 27 May 2014 and his review of supplementary psychiatric information and neuropsychiatric reports. The supplementary psychiatric information included a 17 March 2013 report written by B a rehabilitation specialist, who found that TM 'did sustain a significant traumatic brain injury' and that the traumatic brain injury, rather than anxiety or depression, was the most significant factor affecting TM's cognitive change.
AJM also referred to a 27 Sept 2013 report written by Dr W who had failed to identify any record of diagnosis of a traumatic brain injury and noted that 'a CT scan of the brain performed on 25 September 2010 identifies no intracerebral abnormality'. Dr W's report concludes that TM had sustained a mild traumatic brain injury and 'that his current symptoms are largely, though not entirely, due to a mood, posttraumatic or adjustment disorder'. A further report referred to by AJM is that of LC who in her 20 March 2013 report, notes symptoms of reduced verbal fluency and verbal output indicative of mild expressive dysphasia but which could also be caused by memory problems and depression.
Finally AJM referred to a 6 Nov 2012 report written by FKN who found moderately severe depressive and anxiety symptoms present suggesting a possible diagnosis of adjustment disorder and mixed anxiety and depressed mood or a chronic major depressive episode.
The supplementary neuropsychiatric reports referred to by AJM were those by MC and MV.
In her 15 March 2012 report, MC noted that TM was angry with his memory problems, that his processing was extremely slow and that TM's symptoms and evaluation results suggested 'that it was more likely than not that he had sustained brain injury' in the motor vehicle accident 'which had impacted on him cognitively and emotionally'.
In her 18 April 2013 report, MV noted that while TM 'complained that he was slow in his thinking and that his memory was not very good', his first cognitive complaints were not documented until April 2011. MV found the possibility of 'mild concussion' as not likely to have resulted 'in any persisting cognitive deficits', and noted that the late development of TM's symptoms did not support the presence of 'an appreciable brain injury'.
In the light of these reports and his own clinical assessment, AJM concluded that he found no evidence to support the contention that TM suffered a traumatic brain injury. However, AJM did find evidence of a major depressive illness causative of significant cognitive difficulties. He noted the presence of a consistent history of development of difficulties approximately a year after the accident, as consistent with a diagnosis of major depressive illness 'which in him [TM] is causative of significant cognitive difficulties'. AJM also found CM's explanation about the critical loss of role for her father within the family and in the broader Cambodian community to be a plausible explanation for why TM would develop depression in response to the accident. In response to specific questions, AJM listed 'depressed mood, social withdrawal, cognitive problems, anger, irritability and decreased socialisation' as TM's complaints and current condition.
RSG Consultant neurologist
RSG's 11 June 2013 report is based on his examination of TM on 24 August 2009 and on MV's report of 18 April 2013. RSG noted that when he reviewed TM in August 2009 he had found no evidence of cognitive impairment. However RSG's conclusion did not agree with MV's conclusion that TM did not sustain a brain injury or suffer a permanent cognitive disability. He saw it as possible that TM suffered from some sort of brain injury other than 'just possible concussion' and concluded that it remained possible that TM suffered a brain injury and that he may have suffered a permanent cognitive disability of a mild nature.
MV Clinical neuropsychologist
MV conducted neuropsychological assessment of TM on 27 and 28 March 2013. In her 18 April 2013 report, she observed that the first investigation relating to potential closed head injury, in the form of a cranial CT scan was conducted on 25 Sept 2010, over 18 months after the accident. At this time, MV notes, 'TM was the president of the Cambodian Buddhist Society and there were concerns regarding his capacity to maintain this position'. She further notes that the first documented cognitive complaints in April 2011, recommended that neuropsychological testing be performed. MC's subsequent psychological and cognitive assessment in February and March 2012, led MC to find that it was 'more likely than not that he [TM] sustained a brain injury in the index accident which has impacted on him cognitively and emotionally'.
MV recorded that TM had complained to her of being slow in his thinking, that his memory was not very good, that he lost track of conversations, that his expressive language was slow and not clear, that he experienced word finding difficulties, that his level of comprehension had deteriorated, and that his ability to work with numbers had also declined.
However, MV expressed the view that TM had not been consistent in his application during testing, which she interpreted as his attempts to exaggerate impairments. MV suggests that this 'variability in his performances could not be accounted for by sensory issues, pain or psychological symptoms, and raised concerns regarding feigned performances'.
MV formed the view that, while TM might have sustained a mild concussion with associated brief loss of consciousness, it is unlikely to result in any significant or persistent cognitive deficits.
She notes that the development of cognitive symptoms or concerns 'evolved quite late in [TM's] recovery' and that 'there are no reports of any immediate post-accident, transient or otherwise, concerns regarding his cognitive status'.
MV saw 'the degree of impairment and inconsistency in [TM's] performances as entirely discrepant with the information available regarding the accident' noting that 'given the dysfunction observed on testing, such would have been significantly more pronounced four years ago during [TM's] initial stages of recovery and patently obvious to those involved in his care and management'.
MC Specialist clinical psychologist and clinical neuropsychologist
MC's 15 March 2012 report, is based on lengthy, cognitive and psychological assessments undertaken on 28 February 2012 and 1 March 2012. At that time, TM informed MC that he was struggling financially as he was now reliant on his wife's income, that he was no longer able to engage in social activities, and that as he found it uncomfortable to sit or stand for a long time, he was less active in the Buddhist community. He also complained of low intellectual functioning and reported changes in his attention, concentration, memory, distractibility and increased anger and anxiety. MC found that it was more likely than not that TM sustained a brain injury in the accident which has impacted on him cognitively and emotionally.
FKN Consultant psychiatrist
In his 6 November 2012 report, FKN notes that he had found pathological anxiety symptoms and depressive symptoms in TM. He was satisfied that, following the accident, TM's physical injuries caused physical functional restrictions which led TM to develop psychological anxiety symptoms and pathological depressive symptoms to a moderately severe extent. FKN categorised TM's psychiatric symptoms as 'at least a chronic adjustment disorder with mixed anxiety and depressed mood (DSMIVTR). In the alternative, some may view that he instead suffers from chronic major depressive episode (DSM IV TR) with associated pathological anxiety symptoms'.
Conclusion
All but one of the medical specialists found that TM has a mental disability in the form of an acquired brain injury or a psychiatric condition. Only MV rejects the existence of an acquired brain injury or a psychiatric condition. Her dissenting opinion appears to be influenced by her view that TM had exaggerated his symptoms and that his alleged impairment was inconsistent with earlier diagnosis or complaint. MV's views and conclusion are not supported by any of the other medical specialists. On being asked to comment on MV's report, MC stated that TM had made good effort throughout his testing and assessment in 2012 and that she was not aware of any evidence suggesting that TM attempted to exaggerate his impairment during his assessment by her. Consultant neurologist RSG had agreed with MV that there was no evidence of a cognitive impairment when he assessed TM six months after the accident. However, he disagrees with her conclusion that this suggested that there was no brain injury or cognitive impairment. RSG stated that it remained possible that TM suffered a brain injury and a permanent mild cognitive disability.
The Tribunal finds that the most plausible assessments, in that they appear to explain the development of TM's symptoms of incapacity and are able to be reconciled with the views expressed in reports offering alternative assessments, are those provided by the consultant psychiatrists AJM and FKN. AJM finds that TM has a major depressive illness causative of significant cognitive difficulties, and accepts TM's loss of role in his family and the Cambodian community as an explanation as to why TM would develop such an illness. FKN sees the restriction imposed on TM by his physical injuries as leading him to develop psychiatric symptoms, which FKN categorised as 'at least a chronic adjustment disorder with mixed anxiety and depressed mood' or in the alternative, as 'chronic major depressive episode with associated pathological anxiety symptoms'.
Having considered the expert medical reports and heard from CM, TM and from his legal representative, as well as from VC representing the Insurance Commission of Western Australia (ICWA), the Tribunal is satisfied that TM has a mental disability, as defined in s 3 of the GA Act, in that he has a psychiatric condition as categorised by psychiatrists AJM and NKN, and may also have an acquired brain injury.
Incapacity due to mental disability
Upon being satisfied that TM has a mental disability, the Tribunal must determine whether the evidence supports a finding that TM is unable to make reasonable judgments in relation to at least part of his estate due to that mental disability.
All tendered medical reports, with the exception of MV's, appear to support such a finding.
AJM concluded that, by reason of his major depressive illness TM's understanding of the legal process is not sufficient for him to manage his own affairs in respect of the legal proceedings.
In her 8 April 2013 report, MC stated that TM 'lacks capacity to give instructions, receive or understand legal advice in respect of his claim by reason of his problems with memory and executive function'. MC listed his very slow mental processing and difficulty in holding auditory information in his mind while considering problems, as factors 'also likely to contribute to compromising his ability to give instructions'.
In his report of 27 February 2013, FKN outlines in some detail, his assessment of TM's 'capacity to give instructions, [and to] receive and understand legal advice in respect of his personal injury claim'. FKN provided answers to specific questions relating to TM's capacity to manage 'his own affairs in respect of the legal proceedings by reason of mental illness defect or infirmity, understand what his claim means, understand what any potential settlement of his claim means, and give instructions to solicitors to settle his claim'. He notes that TM 'was unable to tell me the names of his legal representatives' and that:
He did know that he had legal representatives assisting him because of a motor vehicle accident.
He did not know how his legal representatives would assist him.
He said he required legal representation because his 'English was not good'.
He did not have a good understanding of the legal processes required to bring this claim to its conclusion.
He did know that he was seeking monetary compensation in regards to injuries sustained from the motor vehicle accident.
He was unable to tell me how the amount of compensation may be arrived at between the parties involved in the claim.
He was unable to tell me what the next step would be if negotiations between the parties to this claim could not arrive at an amount of compensation that was agreed upon by both parties.
He was unable to tell me the risks inherent in the process going to the 'next step' if negotiations were unable to arrive at settlement of his claim.
He did say that he would take advice from his family and especially his daughter in regards to any advice…his legal representatives provided him with in relation to his personal injury claim.
He reported that he implicitly trusted his family and daughter and would seek their advice and wise counsel in regards to his personal injury claim.
FKN also reports that TM's daughter CM agrees that her 'father did not have a clear understanding of the legal processes and procedures that [were] required to occur in order to attempt to bring his claim to a satisfactory conclusion in his best interests through mutual negotiation with the other party to his claim'. She also concurs that her father had no understanding of the implication of taking the 'next step' if, through negotiation, settlement is not arrived at.
FKN concluded, 'I do not believe that [TM] is capable of giving instructions, receiving and understanding legal advice in respect of his personal injury claim'.
On the other hand, MV concludes that as 'the accident has not resulted in any brain damage … there is no resultant mental illness, defect or infirmity associated with this issues'. She observes that 'if one were to base [TM's] level of capacity on his self-report alone, it would be anticipated that formal appointment of a decisionmaker would be required. However, the informal arrangement he has with his daughter appears to be satisfactory and one with which he is agreeable'. In MV's view, any incapacity and resulting need for assistance TM may have regarding the management and settlement of his legal claim, flowed from his language and cultural issues.
Similarly, in the course of the hearing, VB, representing the ICWA, submitted that the cause of TM's incapacity in relation to his claim was language difficulty rather than mental disability. I find little evidence to support that submission. The medical reports overwhelmingly attribute TM's incapacity to instruct lawyers, and to otherwise manage his claim, to a psychiatric condition or acquired brain injury. Thus, AJM found that TM's major depressive illness rendered him incapable of understanding the legal process sufficiently to be able to manage his legal proceedings, and proposed that 'an appointment on a next friend basis would be appropriate for the management of his claim'.
MC also found that due to, TM's problems with memory and executive functioning, TM lacked the capacity to instruct, receive or understand legal advice regarding his claim or to manage large sums of money such as his compensation award.
It is significant to note that the medical specialists who attribute TM's incapacity to manage his legal proceedings to the diagnosed 'mental disability', do not overlook TM's separate cultural and linguistic needs and informal assistance provided by TM's family and especially his daughter CM. It may well be the case that cultural and linguistic reasons alone would render TM unable to deal with legal proceedings and in need of assistance. However, the existence of such needs and inability does not negate the presence of TM's incapacity to make reasonable judgments regarding at least a part of his estate due to his mental disability, required for him to be declared a person for whom an administrator could be appointed under s 64 of the GA Act.
On the basis of the assessments of TM's incapacity by the medical specialists who had found TM to have a mental disability, the oral evidence at the hearing, particularly from TM and CM, the Tribunal finds that TM's incapacity with respect to the finalisation of his legal claim is consistent with being caused by a mental disability as diagnosed and set out in the tendered medical reports.
Presumption of Capacity
The Tribunal is required to presume that TM is capable of managing his affairs and of making reasonable judgments in respect of matters concerning his estate, until the contrary is proven to the satisfaction of the Tribunal (s 4(2)). I find that the evidence presented as to the effect of TM's mental disability on his capacity to manage his affairs, in respect of legal proceedings, is sufficient to displace this presumption of capacity.
On that basis, the Tribunal finds that by reason of his mental disability, TM is incapable of instructing his lawyers and otherwise managing his motor vehicle compensation claim, and consequently finds, that in terms of the GA Act, TM is unable to make reasonable judgments in matters relating to that part of his estate.
Conclusion
The Tribunal is satisfied that TM has a mental disability and that he is unable, by reason of that mental disability, to make reasonable judgments in matters relating to a part of his estate.
Is the person in need of an administrator?
Next, the Tribunal needs to consider whether TM is in need of an administrator. In her application seeking to be appointed as her father's administrator, CM stated that, as the injuries sustained by her father in a motor vehicle accident on 11 February 2009, had left him incapable of instructing his lawyers and otherwise managing his motor vehicle accident injuries claim, he needs to have an administrator appointed to act on his behalf. Similarly, TM's solicitor had submitted that 'current medical evidence indicates that [TM] may require the appointment of a next friend to assist his understanding and provision of legal advice'.
In light of earlier discussion and findings as to TM's incapacity due to his mental disability, it is clear that TM requires assistance, possibly in the form of an administrator, to finalise his civil claim.
At the hearing, JDA, counsel for TM, indicated that the need for the appointment of an administrator for TM appears to flow from O 70 of the RSC. The Tribunal was also advised that TM's legal action was nearing completion and would be finalised as soon as his claim was compromised.
Need for representation in civil actions commenced in the District Court
TM's civil action was commenced in the District Court, where the 'representation of persons under a disability' in civil actions is governed by O 70 of the RSC as applied by District Court's Practice Directions (Pt 1.2).
The RSC defines a 'person under a disability' as 'an infant, 'a represented person' [within the meaning of the GA Act] or 'a person who by reason of mental illness, defect or infirmity, however occasioned is declared by the Court to be incapable of managing his affairs in respect of any proceedings to which the declaration relates' (RSC O70, r 1).
In Pt 10.2 of the District Court Practice Direction, the Court recognises that the Tribunal's power and expertise 'to make findings as to a person's capacity to manage their affairs and to make appropriate orders for the representation of people unable to do so'. Pursuant to the Practice Direction 'a person seeking to commence or defend litigation on behalf of an incapable person who is not an infant should first seek a guardianship or administration order pursuant to the GA Act. The Court will not usually make a declaration that a person is incapable of managing their affairs for the purpose of making that person a person under a disability within O 70'.
Pursuant to this District Court's Practice Direction, civil litigants, such as TM, who are, or may be incapable, are to apply to the Tribunal for the appointment of either a guardian or administrator.
As the District Court clearly relies on the Tribunal to make determinations pursuant to the GA Act as to the capacity or incapacity of persons intending to or engaged in civil actions the Court implicitly also relies on the Tribunal to make determinations as to the need to appoint a representative since the GA Act does not authorise the Tribunal to appoint an administrator purely on the ground of incapacity, if the incapable person's needs can be met without an administration order needing to be made.
The extent of the incapacity
Almost all of the medical experts, whose reports were submitted to the Tribunal, suggest that TM's needs for a substitute decisionmaker does not extend beyond the finalisation of his civil action, to the management of his finances, including the anticipated settlement. Some suggested that informal assistance would suffice.
In regards to TM's capacity to manage his financial affairs, FKN found TM to be able to identify his bank account, state how much money was in it, and offer the information that it was jointly held with his wife. TM also knew that he received a Centrelink pension and was able to state how much money he received and that he received it on a fortnightly basis. He also demonstrated that he knew the value of the family home and the current level of mortgage.
This assessment led FKN to conclude: 'I find [TM] capable of managing his financial affairs and in particular in relation to substantial amounts of money, but as per usual the support of his wife and family especially his daughter [CM] would be most welcome in assisting this man in managing his financial affairs which I believe is already happening. FKN noted that CM also had no concerns about her father's capacity to manage his finance'.
Similarly, AJM states 'I do believe that he is capable of managing his financial affairs once the claim is settled'.
Dr W, whose report was reviewed by AJM, observed that while TM can manage his own affairs, any money secured in the settlement should be managed by his wife.
However, MC suggests that TM required formal assistance in managing large sums of money.
A submission made on behalf of TM at the hearing, that his need for an administrator extended beyond finalising his legal claim to the management of any compensation received, was not pressed, and I find little evidence to support the view that TM's needs extend beyond the current legal claim. Oral and written evidence has established that, apart from the finalisation of his civil claim TM is otherwise capable of making reasonable judgments in matters relating to his finances and estate.
Should TM's future needs for an administrator prove to be different to those currently assessed, the Tribunal should be asked to again assess TM's needs for an administrator.
Are there less restrictive means by which the person's needs may be met?
One of the principles set out in s 4 of the GA Act requires the Tribunal not to make an order if there is a less restrictive means by which the needs of the represented person could be met (s 4(4)).
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.
Consequently, while TM's needs could be met through the appointment of an administrator, the Tribunal needs to consider whether TM's needs could also be otherwise met, without appointing an administrator or other substitute decisionmaker.
Lawyers representing both sides in TM's civil claim and a number of the medical specialists who prepared reports, have attested to TM's daughter MC having assisted him ably and admirably in the legal action to date. MC also advised that she would be willing to continue assisting her father informally or as his administrator.
At the hearing, TM's counsel (with VB's concurrence) assured the Tribunal that TM's legal interests and his need to finalise his claim would not be impeded if CM were not appointed as TM's administrator but instead continued to assist TM informally.
Noting the quality and level of informal assistance CM has provided to her father's civil claim, and not being aware of any reason why she would not continue to assist in her father's best interests, I am satisfied that TM's needs can be met by the less restrictive means of CM's informal assistance.
The person's views and wishes
The principles governing GA Act proceedings require the Tribunal to ascertain the views and wishes of the proposed represented person (s 4(7) GA Act). The medical reports invariably note that it was TM's wish that his daughter CM assist him either informally or as his administrator. This was confirmed by TM in person at the hearing.
Conclusion
As noted above, the principle set out in s 4(4) of the GA Act requires the Tribunal not to make an order if there is a less restrictive means by which the needs of the represented person may be met.
The Tribunal finds that TM is a person for whom an administration order may be made, and that the informal assistance provided to TM by his daughter CM has met his needs with respect to the management of his motor vehicle accident claim and the negotiation of the compromise, and is expected to continue doing so, until the finalisation of the civil claim.
Ultimately, the Tribunal is satisfied that TM's best interests do not require the appointment of an administrator to act on his behalf to conclude his motor vehicle accident claim, and that a continuation of the informal assistance provided by his daughter MC, will suffice to address his needs.
Orders
The Tribunal declares that TM:
(a)is unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to part of his estate, in that he is incapable of instructing his legal representatives and otherwise managing his claim for damages arising from a motor vehicle accident on 11 February 2009; and
(b)is not in need of an administrator of his estate, because his need for an administration order could and is being met by means less restrictive of his freedom of decision and action.
The Tribunal orders that:
1.The administration application is dismissed.
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR D STEPNIAK, SENIOR SESSIONAL MEMBER
0
0
2