CS
[2020] WASAT 148
•25 NOVEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: CS [2020] WASAT 148
MEMBER: MR J MANSVELD, MEMBER
HEARD: 9 NOVEMBER 2020
DELIVERED : 25 NOVEMBER 2020
PUBLISHED : 30 NOVEMBER 2020
FILE NO/S: GAA 3761 of 2020
CS
Represented person
Catchwords:
Guardianship and administration - Capacity - Psychiatric condition - Relapse of illness - Impact on decisionmaking - Ability to make reasonable judgments - Orders made
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, Pt 5, Pt 6, s 65, Pt 7, s97(1)(b)(i)
Mental Health Act 2014 (WA)
Result:
Guardianship and administration orders made
Category: B
Representation:
Counsel:
| Represented person | : | Nicholas Versteggen |
Solicitors:
| Represented person | : | Mental Health Law Centre |
Case(s) referred to in decision(s):
REASONS FOR DECISION OF THE TRIBUNAL:
The decision in this matter was delivered on 25 November 2020. The following reasons have been edited from the transcript to anonymise the names of the parties and to correct minor errors and omissions.
Introduction
CS is 44 years of age. She has an established diagnosis of a psychiatric condition, paranoid schizophrenia.
CS owns a property in the northern suburbs which is her primary residence (property). It has a value of just under $400,000.
The property is subject to a mortgage valued at about $126,000. CS has other debts of approximately $15,000 the bulk of which is unpaid shire and water rates on the property and the balance comprising fines enforcement and an unpaid electricity account.
CS is in receipt of the disability support pension.
In May 2020 the team at a community mental health clinic (mental health clinic) made an application for the appointment of an administrator of the estate of CS. The application was made under the Guardianship and Administration Act 1990 (WA) (GA Act).
On 6 July 2020 the application was dismissed (July orders).
In September 2020 the teams from a hospital mental health unit (mental health unit) and the mental health clinic made further applications in respect to CS.
The applications were for the appointment of an administrator of her estate and for the appointment of a guardian.
Given the issues and concerns raised in the applications, the Tribunal decided to make an order under s 65 of the GA Act on the basis that CS's estate required immediate protection. The Public Trustee was given the authority under that order to secure and protect her estate subject to the making of any final orders.
The applications were heard on 9 November 2020 and the decision was reserved.
The hearing was attended by CS with her legal representative from the Mental Health Law Centre; BF, social worker at the mental health unit, FD, clinical nurse specialist at the mental health clinic, the trust manager from the Public Trustee and a representative from the Public Advocate.
Relevant legislation
Guardianship and administration matters are considered under Part 5, Part 6 and Part 7 of the GA Act. The principles to be observed by the Tribunal are set out in s 4 of the GA Act.
The primary concern of the Tribunal is the best interests of CS.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes that CS has expressed, in whatever manner at the time, or as gathered from her previous actions.
CS is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal.
The Tribunal cannot consider appointing a guardian for CS unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.
The Tribunal cannot consider appointing an administrator of the estate of CS unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
Mental disability is defined in the GA Act to include an intellectual disability, psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to CS the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of CS can be met in a manner less restrictive of her freedom of decision and action then orders should not be made.
If the Tribunal decides that CS is in need of guardianship and administration orders it must decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of CS a plenary order should not be made. If limited guardianship and administration orders are made the orders must place the least restriction necessary on CS.
The July orders
It is instructive to consider the proceedings from July 2020 given the matters raised were much the same as before the Tribunal in these proceedings.
In July, the Tribunal had the benefit of a comprehensive assessment by a consultant psychiatrist (psychiatrist).
In a written report and in oral evidence the psychiatrist expressed concerns that the judgment of CS about the value of her property and the cost of a smaller property which she hoped to purchase from the net sale proceeds seemed to be poorly informed and impacted upon by her changeable mental state. The ultimate concern of the psychiatrist was that CS would become homeless if after selling her property she had insufficient funds to purchase another dwelling.
I decided to dismiss the application for the appointment of an administrator on the basis that in her evidence CS had a good understanding of her estate and her decision to sell the property to repay all her debts and in her view to have sufficient funds left to purchase a smaller property was not an unreasonable decision given her ongoing inability to service the mortgage on her pension income.
There was no evidence before the Tribunal as to the cost of a smaller dwelling in the context of the balance of funds after the sale of CS's property.
The current applications
The applications for the appointment of a guardian and the appointment of an administrator have arisen out of the ongoing concern that CS's mental state impacts negatively on her ability to make decisions around the sale of her property and the purchase of a new property.
Since the July orders CS has required more admissions to the mental health unit, on 4 to 14 August 2020 and on 10 to 25 September 2020.
These admissions according to a further report from the psychiatrist were due to ongoing psychotic beliefs and particularly CS's impulsive decision-making and erratic behaviour which often put her at risk associated with self-neglect. For example, CS had been reported to have travelled through red traffic lights, crashed a motor vehicle which was unlicenced at the time, and forgetting where she left the vehicle which was subsequently impounded.
The applications further stated that CS had been living in her motor vehicle (which she denied), that her property was being sold because of the non-payment of her mortgage (which she also denied), that her utilities had been disconnected and she was leaving mail unopened.
It was also reported that CS had been living from timetotime with her mother who suffers from dementia and concerns were raised by CS's siblings that she might be taking financial advantage of her mother.
The psychiatric evidence
The psychiatrist has filed two reports with the Tribunal. The first dated 19 October 2020 is a report directed to the Mental Health Tribunal for review of a community treatment order (CTO) on 26 October 2020.
The psychiatrist notes that CS requested a second opinion regarding the diagnosis of her paranoid schizophrenia. That opinion was provided on 9 June 2020 and supports the diagnosis including a recent decline in her functioning.
The psychiatrist further notes that CS had recently been staying with her mother who experiences severe dementia and may have been subsidising CS's spending. CS would need to return to her own home in which the psychiatrist says she feels unsafe due to her paranoid experiences.
CS's family confirm a long-term pattern of erratic money management.
Current calculations by the treating team are that if CS sold her home at market price she would have insufficient funds to purchase a smaller home that she consistently insists is a realistic plan.
The assessment of the psychiatrist is that CS suffers a serious psychotic illness that is tenacious and distressing with psychotic beliefs and experiences impairing her reality testing. She reluctantly accepts medication directed by the structure of a CTO. A recent functional deterioration reflects the significant loss of support from her parents and son.
The psychiatrist opines that CS has an extremely limited capacity to weigh up the factors, including information and advice about her illness and particularly her finances, and has a profoundly held belief that she does not have a mental illness.
In the particular report to the Tribunal the psychiatrist states that CS remains on a CTO.
The last assessment of CS was on 21 October 2020 on a home visit. CS reiterated her plan to sell her property, pay off her debts and buy a smaller house. She rejected any suggestion that she would have insufficient funds to purchase a property and therefore would be homeless. CS was reported to have said that all she needed was to get a job, get off her medication and to be left alone.
The psychiatrist states that CS has a profound capacity to distort the reality of her current situation and shows a severe inability to make rational and safe decisions.
The psychiatrist assesses CS's mental state and cognitive capacity as follows:
[CS] has an ongoing history of overtly paranoid psychotic beliefs, profound mood instability and extremely rigid and inflexible cognitive processes, with minimisation of any problems. [CS's] cognitive capacity is impaired with significant risk to herself when negotiating any complex situation …
[CS] carries a diagnosis of a recurrent psychotic condition with coexisting mood components (schizoaffective disorder) …
[CS's] capacity to acknowledge and understand the ramifications of the important financial consequences of selling a house is impaired. I hold significant concerns about [CS's] capacity in conducting any legal matters due to her diminished executive capacity secondary to the ongoing symptoms of the psychosis.
The psychiatrist further assesses CS as not having capacity currently to make an enduring power of attorney and an enduring power of guardianship.
The clinical nurse specialist/case manager
In her written report FD relevantly states that CS is estranged from members of her family which includes two brothers, a sister and her son. CS's mother has dementia and the family reports that CS exploits her for money.
FD states that CS is not opening her mail and has stopped paying her mortgage due to COVID-19 relief schemes even though her income remains unchanged. She has shire rates and water rates arrears.
The decisions CS makes about how to spend her money are, according to FD, based on her need to smoke. She frequently runs out of money and has no food. She has allowed others to stay in her home who have exploited her financially by not paying rent.
CS declines support services and engages poorly with the treating team at the mental health clinic.
In her oral evidence FD says that CS continues to refuse psychosocial services, she is not a participant in the National Disability Support Scheme (NDIS) and does not want a referral to NDIS.
It is the view of FD that CS is unable to make complex financial decisions and requires assistance in the area of forward planning particularly around the sale of her property.
The Public Trustee
The trust manager states that CS calls weekly usually about her allowances and dealing with her outstanding accounts. CS is in receipt of a Centrelink fortnightly payment of $944.30 but after centrepay deductions $762.80 is received into her account.
The trust manager states that an offer has been received on the CS's property. The offer of $385,000 is considered to be realistic given the condition of the house. The mortgage stands at approximately $128,000 and CS has outstanding shire rates of $13,000 and water rates of $1,000. After taking into account the repayment of those debts and real estate and settlement fees it is likely that CS will receive net proceeds of about $235,000.
The Public Advocate
Though the guardianship and administration applications were not referred to the Public Advocate for investigation and report, the Public Advocate was notified of her possible appointment as guardian.
The role of the Public Advocate at any hearing of the Tribunal under the GA Act is to seek to advance the best interests of the person for whom the application has been made: s 97(1)(b)(i) of the GA Act.
The submission of the Public Advocate is that CS is in need of a limited guardian with the authority to make decisions concerning her accommodation and any support services to which she should have access. It is further submitted that CS's medical needs, in particular her mental health needs, can be appropriately dealt with under the MentalHealth Act 2014 (WA) (Mental Health Act).
CS
CS gave oral evidence and submissions were made by her legal representative.
CS states that she has been looking at properties in the northern suburbs including areas close to where her mother is living. She states that properties such as a duplex, are available for under $200,000.
Apart from this evidence CS's oral evidence more generally was tangential in nature and fixated upon the diagnosis of her psychiatric condition and how she believes it has been misdiagnosed.
The submission of CS's legal representative is broadly similar to that made in the proceedings in July 2020. Although not being able to offer any psychiatric evidence in contradiction to the opinion of the psychiatrist, CS considers herself to be able to make reasonable decisions regarding her estate; in particular, that the sale of her property to clear her debts and to purchase a smaller dwelling is a reasonable process and one from which CS has not deviated for some time.
The submission therefore is that having embarked on a reasonable endeavour, CS should be permitted to carry it through.
Discussion of the issues
A concerning feature of CS's circumstances since the July 2020 orders is that she has had a further two admissions to the mental health unit because of a relapse of her mental illness. The uncontested evidence is that these admissions came about in an environment of erratic behaviour, self-neglect and impulsive decision-making.
A further concern is the nature of CS's oral evidence with its fixation on her psychiatric diagnosis and her propensity to noncompliance with treatment unless directed through a CTO.
I am satisfied on this evidence that CS is subject to a profound instability in her mental state which has a significant impact on her mood, presentation and cognition as described by the psychiatrist.
Despite being able to superficially articulate a course of action regarding the sale of her property and the purchase of another dwelling (although there was again no independent evidence to verify CS's belief that properties are available for under $200,000), I am not satisfied that CS's mental state is sufficiently resilient to enable her to safely navigate the complexities of these transactions.
I am not satisfied that CS is able to consistently make reasonable judgments concerning her estate (I accept the evidence of FD that in normal circumstances, CS prioritises her expenditure towards her smoking), and that she is very vulnerable to impulsive decisionmaking putting her estate at risk.
I find that CS is in need of an administrator of her estate.
There is in my view a logical progression from these findings to the further findings that currently CS is unable to make reasonable judgments concerning what accommodation is the most appropriate for her (in the short and longer terms) and also to what extent she might benefit from supports available to her through, for example the NDIS (which she currently rejects).
I am satisfied that CS's vulnerability and the significant risk of relapse of her mental illness leads to the conclusion that she is in need of oversight and care in the interests of her own health and safety.
I find that CS is in need of a guardian.
There is in my view no less restrictive alternative to the making of orders given that without orders CS would be left to her own devices in that she declines assistance. I am satisfied that she demonstrably cannot function safely on her own.
I will therefore make guardianship and administration orders.
I will appoint the Public Advocate as CS's limited guardian with the authority to decide her accommodation and the services to which she should have access. I accept the submission that her mental health needs can continue to be dealt with under the Mental Health Act.
I will appoint the Public Trustee as CS's plenary administrator and revoke the order made under s 65 of the GA Act.
The guardianship and administration orders will be reviewed in two years.
Orders
The Tribunal declares that the represented person, CS is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
The Tribunal orders:
Administration
1.The order made on 23 September 2020 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The administration order is to be reviewed by 25 November 2022.
Guardianship
4.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live; and
(c)to determine the services to which the represented person should have access.
5.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
6.The guardianship order is to be reviewed by 25 November 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (MEMBER)
1 DECEMBER 2020
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