CRA - [2005] WASAT 336

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: CRA [2005] WASAT 336

MEMBER: MR J MANSVELD (MEMBER)
MR S JONGENELIS (SENIOR SESSIONAL MEMBER)
MR E LEIPOLDT (SENIOR SESSIONAL MEMBER)

HEARD: 18 AUGUST 2005

DELIVERED : 16 DECEMBER 2005

FILE NO/S: GAA 875 of 2005

BETWEEN: CRA
Represented Person

Catchwords:

Guardianship and Administration – Administration – Capacity – Need for an administrator – Who should be administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64, s 68, s 86, s 90

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Represented Person : Selfrepresented

Solicitors:

Represented Person : N/A

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

Re MM (2001) 28 SR (WA) 320

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The former Guardianship and Administration Board appointed a son and daughter as joint administrators for their father (the represented person) in 2004.
The jurisdiction of the Board was absorbed by the State Administrative Tribunal from 24 January 2005 and the Tribunal now exercises the functions under the Guardianship and Administration Act 1990 (WA) formerly exercised by the Board.
The represented person lodged an application for review of the administration order with the Tribunal in 2005, seeking a revocation of the order. He contended that his mental illness was stable, that he had a good financial record and that he could manage his own estate.
The joint administrators and other children of the represented person argued that his mental illness was not well controlled and that his behaviour had deteriorated. As a consequence he was accumulating credit card debt which could not be repaid from his income. The represented person was also said to spend the weekly allowance provided by the administrators in a few days and then harass family members for more money.
The represented person was the beneficiary of income earned from overseas trusts. The trusts were managed by overseas trustees and the income derived by the represented person was managed by the administrators in Western Australia.
The overseas trustees argued that the represented person had a history of poor financial management and debt accumulation which they would no longer support out of the capital of the trusts.
The Tribunal found that the represented person continued to have a mental disability which made him incapable of making reasonable judgments in respect of his estate. The Tribunal reappointed the son and daughter as joint administrators despite the wish of some family members that the Public Trustee be appointed.
The Tribunal directed the administrators to closely monitor the fees being charged by the overseas trustees as the amount of fees was of particular concern to the represented person. The Tribunal also directed the administrators to seek write‑off or waiver of the credit card debts which the represented person had purportedly contracted for whilst under administration.

Background

These reasons relate to an application made by CRA (the represented person) seeking a review of the order for administration appointing one of his daughters, ASA and his son, WRA as his joint plenary administrators. The order was made by the former Guardianship and Administration Board (the Board) on 22 June 2004.
The application by the represented person is made pursuant to s 86 of the Guardianship and Administration Act 1990 (WA) (the GA Act).
The jurisdiction of the Board was absorbed by the State Administrative Tribunal (the Tribunal) from 24 January 2005 and the Tribunal now exercises the functions under the GA Act formerly exercised by the Board.
The Board had appointed an administrator for the represented person on the basis that he had a diagnosed mental illness and was unable to make reasonable judgments in respect of his estate. The Board had before it a report from the represented person's general practitioner whose view was that he was unable to make reasonable decisions about his financial affairs.
The application for review of the administration orders was heard on 18 August 2005 and the decision reserved. On 26 August 2005, the Tribunal decided to revoke the order made by the Board on 22 June 2004 and make a new order appointing ASA and WRA as joint plenary administrators for the represented person. The administrators were directed as follows: to monitor the fees and costs charged by the trustees of the two settlements and the will trust from which the represented person derives his income, to ensure those fees and costs have been properly and correctly raised and, to seek the write‑off of the recovery of debts or waiver of debts which the represented person purports to contract for with financial institutions (including credit card debts). The administrators were authorised to expend up to a total amount of $1500 per annum on gifts and charitable donations on behalf of the represented person. The order was made for five years.
The Tribunal will provide reasons for the decision by firstly detailing the application to review the order for administration, followed by stating the relevant legislation, then discussing the written and oral evidence including information about the capacity of the represented person, and finally assessing all the evidence in relation to the legislative requirements for the appointment of an administrator.

The application for review

The represented person filed the application for review on 30 May 2005 with an accompanying letter and enclosures. In the application he stated that he was seeking the "removal of the administration order at present in place". In the accompanying letter, the represented person made a number of points, some of which he elaborated upon in his oral evidence. He stated in the letter that he became a beneficiary of certain trust funds upon his mother's death in 1991. The trust funds were initially worth two million pounds (United Kingdom) but due to poor investment decisions by the trustees of the trusts were now worth one million pounds. The represented person stated in his letter that "… in every way my children mismanage my money … " and that as they are "remote" beneficiaries of the trusts they are "… alarmed when I seem to spend some money (especially in ways they disapprove of) and get only slightly in debt". He mentioned the debt as credit card debts to the value of $20 000 secured by his house or his "earning power". As to the latter, his children were preventing him from travelling overseas to earn income by not paying for an air‑ticket.
In his letter, the represented person also expressed concern at the fees charged by the trustees of the trusts and his view that the trusts should be managed in Perth.
Finally as regards his capacity, the represented person stated in his letter that he "… had some hypo manic attacks in the past", the last in 1989 and he had "… 2 (sic) clean recent psychiatric reports … "
The represented person "… positively demand[ed] of the Tribunal to put me back at the wheel".

The relevant legislation

The powers of the Tribunal on review of an administration order are set out in s 90 of the GA Act, which provides:
"(1)Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order –
(a)amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;
(b)revoke the order, or revoke the order and substitute another order for it; or
(c)without limiting paragraphs (a) and (b) –
(i)revoke the appointment of any guardian or administrator;
(ii)appoint a new or additional guardian or administrator;
(iii)appoint an alternate guardian.
(2)A review under this Part is in the State Administrative Tribunal's original jurisdiction."
When considering administration, the Tribunal must be satisfied that the person for whom the application is made is someone for whom an administrator could be appointed (the question of capacity) and if found incapable, whether the person should have an administrator appointed (the question of need). If an administrator is to be appointed, the final questions to be considered are what functions should be given to the administrator and who that administrator should be.
The relevant legislation is contained in s 3, s 4, s 64 and s 68 of the GA Act.
Section 64 provides:
"Making of administration order
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 ¾
(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; and
(b)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint ¾
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.
(3)An appointment under subsection (1) ¾
(a)may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;
(b)may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given; and
(c)shall not be made where the Director-General of the department established under section 4 of the Community Services Act 1972 is empowered to act for the person in respect of whom the application is made by virtue of section 14 or 15 of that Act, unless the Director-General consents to the appointment."
Section 3 provides that a "mental disability" includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
The principles to be observed when dealing with proceedings are set out in s 4 of the GA Act. As they relate to administration, they are, firstly, that every person is presumed to be capable of making reasonable judgments in respect of matters relating to his or her estate until the contrary is proved. Secondly, an order appointing an administrator shall not be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Thirdly, an order appointing a limited administrator shall be in terms that impose the least restrictions possible in the circumstances on the person's freedom of action and decision. Fourthly, the views and wishes of the person concerned should be ascertained as far as possible. Finally, the primary concern shall be the best interests of the person for whom the application has been made.
Lastly, s 68 provides:
"Who may be appointed administrator
(1)An administrator (including a joint administrator) shall be ¾
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal ¾
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
(2)The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that ¾
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible ¾
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(4)The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act."

The written submissions

In addition to the application for review and accompanying letter, the represented person provided a number of documents to support his application. The first was a letter to the Tribunal dated 19 July 2005, enclosing an itemised account of the trustee's costs for the period 1 April 2003 to 31 March 2004. In that letter, the represented person stated the view that should the costs continue at the rate shown then the capital of the trusts would soon be exhausted. The second was a letter to the Tribunal also dated 19 July 2005 enclosing correspondence from a chartered accountant friend in which he recommended that the trusts be managed in Perth. The third was a letter to the Tribunal dated 8 August 2005, enclosing a letter from a solicitor in Perth questioning the fees charged by the trustees and offering himself as trustee of the trusts.
A letter dated 1 July 2005 was received from the United Kingdom trustees of the two settlements and will trust from which the represented person derives his income. The trustees enclosed a letter sent by them to the Board dated 26 April 2004. The trustees made a number of submissions. Firstly, in the earlier letter which was submitted for the application for administration in 2004, it is stated that apart from the income derived by the represented person from the trusts, the trustees have a discretion to make advances from the capital of the will trust and this has been used to purchase a home for the represented person and to "… discharge various liabilities incurred by the [represented person] since his mother died". At the time of the letter, the latest of these debts related to credit card and overdraft finance in excess of AUS $30 000. Despite many requests of the represented person the trustees had been unable to determine on what the funds had been spent, but the suspicion was that the monies had been given away. The trustees had also become aware "during recent years" that telephone and other utility services had been disconnected or threatened with disconnection despite the represented person at that time receiving monthly instalments of income. The trustees were of the strong view that the represented person needed to be "protected from himself" and supported the son and daughter being appointed his administrators.
In the letter of 1 July 2005, the trustees reiterated their concern about the represented person and noted that he continued to access credit card finance since the administration order was granted. The trustees had made it clear to the represented person and his family that they were no longer prepared to sanction the use of the trust's assets to discharge debts incurred by the represented person. The trustees supported the continuation of the administration order.
A letter dated 25 July 2005 was received from JMT son-in-law of the represented person. He stated that he has known the represented person since 1988 and that he and his wife, CMA, support the represented person on a daily basis. He strongly supported the need for the represented person to be under administration because "… although capable of managing many day‑to‑day affairs, [he] has a consistent and serious history of difficulty managing money. Large outstanding credit card debts and [the represented person's] refusal to disclose to anyone where the large sums of money went are indicative of his problems in this regard". JMT proposed the appointment of the Public Trustee as administrator because he found it difficult to communicate with the current administrators. He found them to be "… dismissive, rude and difficult to deal with". JMT stated that the represented person's family had "broken down" as a consequence of differences over administration and the previous application for guardianship. He believed that the appointment of the Public Trustee would reduce the pressure on relationships and might allow reconciliation to occur.
A letter dated 7 August 2005 was received from CMA, daughter of the represented person and spouse of JMT. She stated that she lives close to her father and makes herself available in the event of a crisis and also "… keep[s] a close eye on him and his associates". In relation to the represented person's ability to manage his finances, CMA stated that:
" … prior to his current financial administration my father was unable to manage his income adequately to meet his expenses, leaving bills unpaid, constantly borrowing money from others and having no money for food shortly after his income was paid to his account." (As written)
As to the need for the represented person to be subject to ongoing administration, CMA stated that she:
" … believe[s] [he] does need continuing financial administration as he has and continues to run out of money a day or two after he has been paid for the week. He will come to ask me for a few dollars. When I ask him where his weekly money went I get abuse and he insists it is his money and none of my business."
CMA proposed that the Public Trustee be appointed administrator as she maintained that family relationships had deteriorated since the original order for administration. She believed that any administrator "… should remain impartial to history and unresolved financial issues".
A number of documents were submitted at the hearing. The represented person provided a list of his current credit card debts amounting to $20 263. He also provided a letter dated 18 November 2004 from an overseas university detailing the costs of accommodation in the vicinity of a new hospital.
Counsel for the administrators, SW (Counsel), submitted a summary of the movements of the represented person and his family over the years prepared by the administrators. This the Counsel said would hopefully be "… useful in setting the background in context". Also provided were the "personal details" of the administrators, a letter from a debt recovery company dated 14 July 2005 regarding an outstanding credit card debt of the represented person amounting to $6908.29 and a summary of the represented person's income and expenditure for the period 22 June 2004 to 22 June 2005. Finally the Counsel provided three documents that relate to the allegation of the spouse of the represented person of having been assaulted by him in April 2004.

The represented person's oral evidence

The represented person stated at the hearing that he wanted the capital of the settlements and will trust preserved for his wife and son but that this would not happen if the trustees continued to extract large fees. He said that he wished to be discharged from administration because currently "… my hands are tied as far as getting after these thieving trustees, you see …" (page 12 of the transcript). The represented person said that he would make a good living once he travelled overseas to secure employment. He disputed that the credit card debts were of concern given the amount of capital in the trusts and said that his financial record was excellent. Essentially he wanted to be in a position to contest the management of the settlements and the will trust.

As to his capacity to manage his estate, the represented person said that there were reports from two specialists in Western Australia giving him a clean bill of health. The reports he referred to were that of Dr Adesina Adesanya, consultant psychiatrist at the Armadale Seniors Mental Health Service dated 17 March 2005 (referring to having last seen the represented person in October 2004) and that of Dr James Fellows‑Smith, psychiatrist, dated 18 April 2005 (letter to the represented person's then lawyer). He said he was sick and tired of a psychiatric hospital admission sixteen years ago being used against him although he also said that he spent several days in such a hospital at the time of the alleged assault against his wife in 2004. He said that Dr Adesanya was forced upon him and that he saw him "… as infrequently as possible" (page 18 of the transcript). The represented person said he had attended a private psychiatrist, Dr Fellows‑Smith and that his medication was prescribed by a general practitioner friend, Dr Duncan Anderson, whom he would contact when his pharmacist advised that a prescription was necessary. He said he took a very small dose of a major tranquilliser "…not because I am high but it enables me to sleep" (page 23 of the transcript). He had last seen Dr Fellows‑Smith two to three months ago and was undecided if he would continue with Dr Fellows‑Smith as his private psychiatrist.

The administrators' oral submissions and evidence

Counsel for the administrators said that all the family members of the represented person were of the view that he should remain under administration. The administrators contended that the represented person had not regularly taken the correct medication for his diagnosed mental illness and that as a consequence, since about December 2004, his behaviour had deteriorated. WRA, son and joint administrator, said the evidence for this was that the pharmacy account for the represented person had dropped from $250 a month to $80 a month from December 2004.
Counsel for the administrators said that the represented person was continuing to manifest problems with spending. He had a financial history of obtaining credit cards and running up large debts and this had not stopped since the administration order was made in June 2004. The represented person's circumstances had not changed significantly and it remained appropriate than an administrator be appointed.
WRA said that apart from the credit card debts of approximately $20 000 incurred by the represented person during the period of the administration, there was also a concern with a solicitor's account of about $7000, which the represented person had incurred but which could not be paid. WRA said the administrators had told the solicitor not to represent the represented person in a guardianship application because there would not be sufficient funds to pay the fees.
WRA said that the represented person had obtained and spent funds by accumulating debt which the administrators could not afford to repay from the income derived from the United Kingdom trusts.
As for the represented person's submission that the trustee's fees were excessive, WRA said that the administrators were not concerned and that the high fees were mainly the product of the represented person's frequent contact with the trustees after not accepting a negative response to his requests for expenditure. The trustees had refused to further correspond with the represented person and the administrators now anticipated that the fees would be significantly less than previously.
Counsel for the administrators submitted that in the report of Dr Fellows-Smith, the represented person had been diagnosed with Bipolar I Disorder, which Dr Fellows‑Smith stated was controlled by the mood stabiliser "Seroquel." From the represented person's own evidence, however, it appeared as if he was now not taking "Seroquel" but rather a major tranquilliser to enable him to sleep.
Counsel submitted that the current administrators had been doing a proper and competent job. The administrators did not agree that an external body such as the Public Trustee should be appointed despite that proposal being put in the written submissions of the represented person's daughter, CMA and her spouse, JMT. As one of the joint administrators, WRA looked after the payment of the accounts and the other administrator ASA dealt with the represented person because she has a better relationship with him than does WRA. It was acknowledged that ASA's relationship with the represented person had become strained since the guardianship hearing in April 2005, however this would not improve simply by changing the administrator nor would the relationship with her sister, CMA, improve for that reason. The relationship with CMA was distant but had not been severed. The administrators relied upon CMA to monitor the represented person on a day‑to‑day basis and to make requests for expenditure on his behalf for his incidental needs. The administrators have not and would not refuse such requests on the basis of the difficult relationships.
Counsel submitted that the current administrators continued to be willing to undertake that role for the represented person. The job was difficult but needed to be done.

The oral evidence of LA, former spouse of the represented person

In her evidence, LA said if the Public Trustee were appointed administrator in substitution for the current administrators, it was likely that the pressure of saying no to certain of the represented person's expenditure requests would fall to CMA. She would then find out that he could be "nasty" to her because she had denied him something he wanted (page 41 of the transcript).

The represented person's capacity

As already mentioned in these reasons, the represented person referred to two medical reports, a "Doctor's Guide" (State Administrative Tribunal Western Australia) completed by Dr Adesina Adesanya consultant psychiatrist dated 12 March 2005 and a report prepared by Dr James Fellows‑Smith (psychiatrist) addressed to Stephen Bottrill Solicitors and Attorneys dated 18 April 2005.
In his report, Dr Adesanya stated that at the time of his consultation the represented person was capable in his view of making reasonable decisions in relation to financial affairs and comments that:
"I understand that there were concerns about this in the past. However, no clinical suggestions of incapacity when I saw him in October 2004."
Dr Adesanya also noted that in his view the represented person had at the time of his report the capacity to execute a valid enduring power of attorney.
Dr Fellows‑Smith in his report of 18 April 2005 refers to a diagnosis of Bipolar I Disorder made at the time of a previous report dated 6 September 2004. He had re‑examined the represented person on 13 April 2005. At the time Dr Fellows‑Smith stated that:
"[The represented person] has the capacity and is competent to make decisions regarding his day to day care and welfare and does not present with features, which would indicate psychosis."
In the preamble to these specific remarks Dr Fellows‑Smith noted that during his examination:
"There was no evidence of any psychomotor change or thought disorder. Nor was there any evidence of any cognitive abnormality or dis‑inhibition."
The other medical evidence available to the Tribunal was an undated "Doctor's Guide" prepared by Dr Pam Williams, general practitioner who had consulted with the represented person for some one and a half years. Dr Williams at the time of her report indicated that the represented person was not capable of making reasonable decisions in relation to his financial affairs. The Board had received this report on 16 June 2004 for the purposes of determining the original application for administration on 22 June 2004.
The view with regard to capacity advanced by Counsel representing the administrators was that the represented person was not regularly taking the correct medication and that the behaviour of the represented person had significantly deteriorated from December 2004. One of the administrators (WRA) submitted that the represented person continued to demonstrate ongoing difficulties with the acquisition of debt which coincided with a period when the pharmacy account maintained for the represented person had decreased significantly. The evidence was that up until December 2004 the monthly account approximated $250 and from that time on it reduced to $80 per month. The inference drawn by the administrator was that this reflected the represented person's discontinuation of his medication that led to deterioration in his behaviour and the consequent accumulation of credit card debt. As this evidence was being provided to the Tribunal the represented person interjected with the comment, "… Yes. I was trying to come off them, wasn't I?" (page 64 of the transcript). This interjection appears to support the proposition advanced by the administrator that the represented person was substantially modifying his medication intake.
It was the submission of the administrators and other family members that prior to the administration order being applied, the represented person commonly had no money for food within days of his allowance having been paid. The family submitted that he constantly had unpaid debts and borrowed money. The evidence of the family is that these difficulties are long standing and ongoing in nature and have caused substantial impairments in social and occupational functioning. Indeed, notwithstanding the introduction of the administration order there have continued to be problems with the represented person incurring debts that, it is submitted, cannot be serviced from his income.
The administrators' position was that the represented person's family agreed that there was a need for an administrator to be appointed. The administrators indicated that the represented person was continuing to manifest difficulties with spending in the same fashion that led to the original order being made. Counsel indicated that the represented person had acknowledged the acquisition of further credit cards with debts that amount to in excess of $20 000. This included the acquisition of additional credit cards whilst on a trip outside of Western Australia. In summarising their evidence, the administrators submitted that the position with respect to administration had not changed significantly since the original order was made.
During the course of the hearing the Tribunal provided the represented person with considerable scope to advance his case and provide the Tribunal with evidence as to why the administration order should be revoked.
During the hearing the represented person's behaviour and conduct proved challenging and difficult. The represented person consistently interjected in confronting and at times abusive terms, directing his outbursts at other parties and at the Tribunal. Notwithstanding the obvious discomfort and requests of other parties in the hearing, the represented person insisted on standing for extended periods during the hearing and occasionally conducted himself in a physically threatening manner to other individuals in the room. The represented person's verbal behaviour was repetitive, intrusive and frequently tangential in content. Despite repeated requests he did not, or was unable to, alter his conduct during much of the hearing. The Tribunal noted that his manner was not congruent with the context of the hearing and he was frequently unable to respond to requests in an appropriate manner. During the hearing when information was presented with which he did not agree, the Tribunal observed that the represented person demonstrated poor impulse control, challenging the information in an aggressive, repetitive and hostile fashion. On one occasion the represented person crossed the room and stood over Counsel representing the administrators in a threatening manner, inviting him to "stand up" ostensibly for the purpose of physically assaulting him.
In reviewing the competing submissions the Tribunal considered the medical reports in detail. When questioned as to the frequency of clinical contact between himself and Dr Adesanya, the represented person repeatedly indicated that he had avoided contact with Dr Adesanya and it appears that Dr Adesanya's contact with the represented person was limited. Dr Adesanya was not the represented person's regular medical attendant nor did he provide any evidence of the assessment tools employed or the reasons for his view that there were no signs of incapacity when he reviewed the represented person.
Dr Fellows‑Smith's report was generated for the purpose of the guardianship hearing conducted on 27 April 2005. The report refers to the represented person as competent to make decisions regarding day‑to‑day care and welfare but is silent on the question of financial administration and estate management. Within the report, Dr Fellows‑Smith refers to the represented person's medication being prescribed by Dr Duncan Anderson.
From his questioning of the represented person during the consultation of 13 April 2005, Dr Fellows‑Smith concluded that the represented person was compliant with his medication.
In response to questioning of the represented person during the hearing with respect to the nature of his consultations with Dr Anderson, it became apparent that the arrangements are very informal. The represented person's evidence was that he did not attend Dr Andersons consulting rooms at all, and that he seldom had any direct contact with Dr Anderson. He described Dr Anderson as a friend. It was the represented person's evidence that the process was managed by telephone communication between themselves and the local pharmacist on an informal, "as needs basis". It was the represented person's contention that he takes medication to assist him to sleep and not for mood stabilisation properties.
It was concluded from the evidence presented that largely the represented person controls and manages his medication himself and that this does not occur in manner that the Tribunal would consider to constitute usual medical supervision. Further questioning with regard to ongoing clinical contact between the represented person and Dr Fellows‑Smith indicated that the represented person had recently had a disagreement with him and that it was improbable that Dr Fellows‑Smith would continue as the represented person's treating psychiatrist.
When considering the relevance of the represented person's conduct during the hearing to the issue of competence, the Tribunal considered the following alternatives. Whether the frequently extreme and inappropriate presentation of the represented person could be viewed in dispositional terms as him simply making robust efforts to state his argument and to advance his position. Alternatively, his conduct may have reflected levels of discomfort and agitation due to the novel and unfamiliar circumstances he confronted and the corresponding frustration that this circumstance may produce. Finally, the Tribunal could view the features of his presentation within the context of his diagnosed mental illness or potentially a deterioration of the illness. The Tribunal viewed that to differing extents, each of the alternatives are likely to have applied.
The most recent medical report that the Tribunal has available, is that provided by Dr John Fellows‑Smith. In his report Dr Fellows‑Smith states that the represented person has Bipolar I Disorder. The Tribunal therefore finds that the represented person suffers from a "mental disability" pursuant to s 3 and s 64(1)(a) of the GA Act.
In reaching its conclusions on capacity the Tribunal was particularly mindful of the reports provided by the two medical specialists. The limited scope of the reports provided, whilst relevant and informative, dealt with the represented person's circumstances in narrow terms. The Tribunal finds that whilst not demonstrating all of the most disabling aspects of his mental disorder the extensive history of dysfunction and concerns described by all family members, strongly suggests a profile of incomplete inter‑episode recovery that adversely impacts upon the represented person's capacity to manage his finances. In its review of the evidence, the Tribunal does not assert that these manifestations are inconsistent with the medical evidence provided. Rather, they reflect a level of dysfunction and impairment that on the balance of probabilities adversely impact upon the represented person's capacity to make reasonable decisions with respect to financial matters.
During the hearing, the Tribunal observed loud and pressured speech which was at times quite grandiose with repeated complaints, hostile comments and accompanying physical agitation and restlessness. Additionally, it observed illustrations of extreme irritability and poor impulse control. The Tribunal concludes that the extremes of behaviour demonstrated throughout the course of the hearing, are likely to reflect substantial manifestations of the represented person's mental illness. Of particular note is the association between poor impulse control and his bipolar disorder. Further, the Tribunal considered that his competence to make reasonable judgments is likely to be substantially affected by the difficulties in judgement and problem solving he demonstrates. This finding is congruent with the extensive and continuing history of financial and occupational difficulties manifested by the represented person as described by his family.
The evidence of the family coupled with the documentary evidence provided, illustrate extensive and long‑standing difficulties with financial management that have consistently threatened the represented person's economic circumstances and his financial capacity to care for himself. Accordingly, the Tribunal finds that the represented person continues to be a person for whom an administration order could be made. That is, he satisfies the provisions of s 64(1)(a) of the GA Act in that he is currently unable, by reason of his mental disability, to make reasonable judgements in respect of matters relating to all of his estate.

Is the represented person in need of an administrator?

When a person is found to be incapable, pursuant to s 64(1)(a) of the Act, the question that next has to be considered is whether he or she "is in need of an administrator of his estate" (s 64(1)(b)). Such need is read subject to s 4(2)(c) of the GA Act, which provides:
"(2)…
(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."
The meanings of "is in need of an administrator of his estate" and "needs of the person" were considered by the Full Board in Re MM (2001) 28 SR (WA) 320 at [320] – [332]. The Board took the view that the terms involve different tests. Where the provisions of s 64(1)(a) are met it would usually follow that the person "is in need of an administrator" because of the absence of formal legal authority to make decisions for the person. However, this will not always be the case, for example, in situations where the person has no assets that require administration or if the assets are managed under some other legal authority.
In the case of the represented person, he is the income beneficiary as of right and a capital beneficiary at the discretion of the Trustees, of two settlements and of a will trust managed in the United Kingdom. By virtue of the finding by the Tribunal that the represented person cannot make reasonable judgments in respect of matters relating to all of his estate, a "legal vacuum" would exist in the decision‑making, which includes the income distribution of the trusts, if it were not currently filled by the order for administration or some other authority.

In his report relating to having last seen the represented person in October 2004, Dr Adesanya took the view that the represented person was then capable of executing an enduring power of attorney. The Tribunal has already made findings on Dr Adesanya's assessment and its relationship to all the available evidence in respect of the represented person's capacity. The test for a finding of incapacity for administration (s 64(1)(a) of the GA Act) is different from the test of establishing whether a person is able to execute an enduring power of attorney. It is not inconsistent to find that a person is capable of appointing an attorney but be incapable of making reasonable decisions in relation to his financial affairs. The Tribunal can accept the assessment of Dr Adesanya and find, as it has, that the represented person is incapable, by reason of a mental disability, to manage his estate. Ultimately, the Tribunal is bound to make a decision that is considered to be in the represented person's best interests (s 4(2)(a)). In that regard the Tribunal is not satisfied that it is in the represented person's current best interests for his estate to be managed by way of the authority of an enduring power of attorney even if it could be found that he has the capacity to execute such an instrument.
The Tribunal therefore finds that the represented person continues to be "in need of an administrator …" pursuant to s 64(1)(b) of the GA Act.
The test as it relates the "needs of the person" is of a broader nature. In Re MM at 330:
"… the phrase 'needs of the person' … involves a different test. The 'needs' there described are of wide import and encompass all the wants and necessaries of the person. Thus there is a two step process. The Board must first determine whether there is a need for a guardian in s 43(1)(c) (or a need for an administrator in s 64(1)(b)) and then move on to the issue whether notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of that person can nevertheless be met under informal arrangements which are less restrictive of the person's freedom of decision and action."
The evidence currently available to the Tribunal is consistent with the view that the arrangements that were in place prior to the order for administration made in June 2004 were not in the represented person's best interests. Those arrangements, which principally involved the represented person managing the income from the trusts, lead to unpaid bills, a lack of money for food and having to borrow for his day‑to‑day expenses. In addition the represented person would borrow heavily by way of credit card debt without being able to manage that debt on his income and without the prior approval of the United Kingdom trustees to meet the debts out of the capital of the trusts.
Since the administration order was made, the represented person's own evidence is that he has accumulated $20 000 in further credit card debt, which also cannot be serviced from his income. The evidence of his daughter, CMA, who is close to him on a daily basis, is that he continues to run out of money a day or two after he has been paid his weekly allowance.
The represented person's evidence that the credit card debt is insignificant against the capital of the trusts is correct in quantum only. He otherwise fails to acknowledge or understand the fact that the capital is not available except at the discretion of the trustees. As to the represented person's contention that the debt would be serviced by his future income earning capacity, even if true, belies his past behaviour when managing his trust income which is to spend in excess of what he receives. The represented person also contends that the debts are secured by his house property (letter accompanying his application), but that can only mean that his creditors could act to sell his home to satisfy the debts, and that is neither a reasonable judgment in respect of his estate nor a reasonable judgment in respect of his need for stable accommodation.
The Tribunal agrees with the trustees of the United Kingdom trusts that in light of the history of the represented person with their management of the Trusts, that the represented person needs to be "protected from himself". The Tribunal therefore finds that the needs of the represented person, as they encompass his wants and necessaries, cannot be met other than by the continuing appointment of an administrator.
The Tribunal has some sympathy with the represented person's concern at the level of fees charged by the trustees in the United Kingdom, despite the current administrators' expectation that the fees after the administration order in June 2004 should be significantly less than those of the previous period. The Tribunal's order reflects this concern with its direction to the administrator that the trustee fees be closely monitored.
The Tribunal also directs the administrator to actively seek write‑off or waiver of the credit card debts for which the represented person purportedly contracted while under administration and after a declaration by the Board in June 2004, which this Tribunal has confirmed in its decision, that he is incapable of making reasonable judgments about his estate. In this regard, the administrators can be guided by the provisions of the s 77 of the GA Act.

Who should be the represented person's administrator?

Section 68 of the GA Act sets out what the Tribunal must consider when choosing an administrator. The Tribunal must be satisfied that the proposed appointee will act in the best interests of the represented person and be otherwise suitable to act. This is amplified by the requirement that the Tribunal take into account as far as is possible, the compatibility of the proposed appointee, the wishes of the represented person and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
The represented person states in his application that his children mismanage his money and by virtue of them being what he terms "remote" beneficiaries of the United Kingdom trusts, they become alarmed when he spends money. In other words, that they have a conflict of interest when deciding what funds he can spend. He does not entertain any alternative administrator given that his application is that the order for administration be revoked and the management of his estate be returned to him.
The Tribunal does not agree with the represented person's argument. There is no evidence before the Tribunal that the current administrators have "mismanaged" his funds. There is concern only that the administrators be particularly vigilant in monitoring the fees charged by the trustees and actively seek write‑off or waiver of the current credit card debts. As for the alleged conflict of interest, the represented person's income is determined by the performance of the trusts and any allocations of the capital of the trusts is determined by the trustees. Both these matters are not under the authority of any administration order made by this Tribunal, however, the expenditure of the income is, and it appears to the Tribunal that it is spent by the administrators for the benefit of the represented person. This is made difficult for the administrators by the represented person continuing to accumulate debt.
A daughter of the represented person, CMA and her spouse, JMT, both propose that the Public Trustee be appointed administrator because of their view that the current order has lead to a breakdown in family relationships. In addition, CMA and JMT interact with the represented person on a daily basis and are an important means by which he can articulate his needs to the administrators. JMT, in particular, submitted that he found the administrators difficult to deal with in this regard.
The Tribunal agrees with the notion that those who provide a direct caring role for the represented person must be able to communicate his financial needs to the administrators and expect a reasonable response. The Tribunal questioned the administrators on this matter. ASA, as one of the joint administrators, acknowledged she relied on her sister, CMA to monitor the represented person on a daily basis and to make requests for expenditure on his behalf for his incidental needs. In her evidence, ASA said that the relationship with CMA was distant but had not been severed. She stated that she had not and would not refuse requests for expenditure on the basis that relationships were difficult. Counsel for the administrators submitted that appointing the Public Trustee would not of itself lead to an improvement in relationships. The former spouse of the represented person, LA, said that if the Public Trustee were appointed administrator, the inevitable negative response of the represented person to refused expenditure would likely fall to CMA, rather than the current administrators. The Tribunal agrees with these submissions.
On balance, the Tribunal supports the reappointment of ASA and WRA as joint administrators. The Tribunal is satisfied that they will continue to act in the represented person's best interests and that despite the difficult relationship they have with the represented person, they remain familiar and attuned with his needs, something the Public Trustee as a statutory authority could not match.
Subject to the directions about the United Kingdom trustees' fees and the credit card debts, the Tribunal will otherwise make its order in the same form as the order made by the Board in June 2004. This means the order will be plenary in nature and the administrators will be authorised to expend up to a total amount of $1500 per annum on gifts and charitable donations on behalf of the represented person.

Order

The order dated 22 June 2004 be revoked and an administration order in the following terms be substituted for it:
1.[ASA] and [WRA] be appointed joint plenary administrators of the estate of the represented person with all the powers and duties conferred by the Act.
2.The administrators are authorised to expend up to a total amount of $1500 per annum on gifts and charitable donations on behalf of the represented person.
3.The administrators are directed to:
(a)Monitor the fees and costs charged by the trustees of the two settlements and will trust from which the represented person derives his income to ensure those fees and costs have been properly and correctly raised; and
(b)Seek the write‑off of the recovery of debts or waiver of debts which the represented person purports to contract for with financial institutions (including credit card debts).
4.This order is to be reviewed by 26 August 2010.
I certify that this and the preceding [86] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER