DF
[2005] WASAT 138
•14 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990
CITATION: DF [2005] WASAT 138
MEMBER: MS D DEAN (MEMBER)
MR S JONGENELIS (SENIOR SESSIONAL MEMBER)
DR G HAMILTON (SENIOR SESSIONAL MEMBER)
HEARD: 9 MAY 2005
DELIVERED : 14 JUNE 2005
FILE NO/S: GAA 320 of 2005
BETWEEN: DF
Applicant
Catchwords:
Application - Guardianship and administration - Dismissed
Legislation:
Guardianship and Administration Act 1990 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Solicitors:
Applicant: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MS D DEAN (MEMBER), MR S JONGENELIS (SENIOR SESSIONAL MEMBER), DR G HAMILTON (SENIOR SESSIONAL MEMBER):
REASONS FOR DECISION
Background
DF is a 75‑year‑old man who immigrated to Australia in 1972. At the time he was married with children but separated from his wife in 1978. He currently has no contact with his wife or children.
In November 2005 DF was served with an eviction notice as a result of an assault on a fellow resident of the HomesWest units where he lived.
As a result of the eviction notice DF was referred by his GP to a mental health community team for assessment of his mental state and for advice and support in helping him find new accommodation. At this time DF came under the care of Dr K, a psychiatrist.
DF was evicted from his unit in January 2005 and was admitted to a residential mental health facility where he was residing at the time the applications for guardianship and administration were made.
As a result of his eviction and move into psychiatric care, DF's two dogs were relocated to an animal refuge. While at the refuge the dogs attracted a daily boarding fee of $12.50, accumulating a significant debt for which DF disputed responsibility. DF subsequently surrendered the dogs to the refuge.
On 15 March 2005 an application was made to the State Administrative Tribunal (SAT) for guardianship and administration orders in respect of DF. The applications were made by a social worker at the mental health facility where DF was residing at the time. The application outlined the reasons and need for guardianship and administration orders.
Dr K, the psychiatrist treating DF at the mental health facility, provided written reports to the Tribunal in support of the applications for guardianship and administration. Dr K assessed DF as having impaired cognition as a result of both a previous head injury and a vascular dementing process. DF was reported to have "difficulty in processing new learning" and to lack the "flexibility of thinking required for problem solving". DF was commenced on a mood stabilising drug to control his frustration and angry outbursts. Dr K reported that while residing in the mental health facility DF was incurring debts, including boarding fees for his two dogs and a credit card debt that he was refusing to pay. In addition, issues such as the appropriate disposal of DF's belongings still in his HomesWest unit needed to be addressed.
A report dated 14 March 2005 was provided to the SAT by a clinical psychologist who had conducted a neuropsychological assessment of DF to determine his level of cognitive functioning. The clinical psychologist found that DF had "global deterioration in all aspects of cognition". He was found to have "poor judgement and decision making abilities" and lacked insight into his difficulties. The psychologist recommended "low level supportive accommodation".
Prior to the hearing of the applications DF moved to a different residential mental health unit where he came under the care of Dr B, a psychiatrist.
In his written report to the Tribunal dated 11 April 2005, Dr B assessed DF as having vascular dementia and difficulties with short term memory but assessed him as demonstrating "in a practical, naturalistic way an ability in everyday affairs".
Dr K and Dr B appeared to differ in their assessments of the capacity of DF to make reasonable judgments in respect of matters relating to his person and his estate. In order to clarify the capacity issue the SAT provided each of the doctors with a copy of the other doctor's report for comment and offered to have telephone hearings with each of the doctors. Both doctors declined a telephone hearing and chose to attend the hearing in person.
The Public Advocate investigated the applications and provided the SAT with a report outlining the outcome of her investigation and recommendations. Given that the issues relating to accommodation and medical and dental matters were currently being managed in an informal manner, the report recommended that there was no need for a guardianship order. The Public Advocate further recommended that if an administration order was to be made it should be a short term limited order to facilitate the settlement of the credit card debt for which DF continued to deny responsibility.
Information provided at the hearing
In the first instance Dr K, DF's past treating psychiatrist, informed the hearing that DF did not have the capacity to make reasonable judgements in respect of his own welfare or finances. She said that his decision‑making became more problematic when he discussed emotionally laden issues such as relinquishing his dogs and his future accommodation. Dr K reaffirmed her belief that orders for guardianship and administration in respect of DF were appropriate and necessary. After more discussion in the hearing Dr K agreed that there may not currently be a need for orders to be made in respect of DF but she reiterated her belief that DF's personality style, which results in conflict with others, was likely to result in a need for orders in the future.
Dr B, DF's current treating psychiatrist, stated that he agreed in principle with Dr K's assessment but pointed out that since moving into his current accommodation DF had recovered somewhat from the trauma associated with eviction from his home of several years and the loss of his companion dogs. Dr B believed that these traumas were a significant contributing factor to DF's angry outbursts and non‑compliant behaviours which had resulted in the application to the Tribunal. Dr B reported that DF continues to take the mood stabiliser prescribed by Dr K and this had the result of calming him. Dr B stated that DF was now able to demonstrate a good understanding of issues and negotiate appropriate outcomes with both staff and outsiders as evidenced by his location and setting up of a private rental unit. Dr B did not see the need for either guardianship or administration orders to be made.
It was reported to the hearing by Dr B that DF had recently secured private rental accommodation with the help of a HomesWest bond loan and significant support arranged by the mental health facility. This support will continue to be provided to ensure the best possible long‑term outcome for DF. In addition it was reported that DF initiated much of the planning and implementation required in managing the whole relocation process. At the time of the hearing DF had successfully spent an uneventful weekend at his new home while on leave from the mental health residential facility.
The OPA representative reported that she found it difficult to ascertain whether the difficulties DF sometimes experienced in his life were a result of lack of capacity or the effect of longstanding behaviours consistent with a particular personality type. She indicated that it was unclear whether these behaviours warranted the making of guardianship and administration orders in respect of DF. She further reported that the mood stabilisers were having the desired affect in helping DF to manage his difficult behaviours.
DF spoke to the Tribunal about his difficulties in coming to terms with his eviction and the loss of his dogs. He outlined to the Tribunal his current financial and welfare situation. He reported on his newly acquired private rental unit in which he recently spent the night. He detailed his financial income and outgoings and acknowledged responsibility for the credit card debt. DF also stated that he is, and will continue to be, compliant with his mood stabilising medication because it "makes me more tolerant". DF said that he wished to continue to make his own lifestyle decisions and manage his own finances. He said he accepts that he needs help and support in some areas of his life and will ask for more if and when he needs it.
It was accepted by the parties at the hearing that DF's volatile personality type can confuse and impact on any assessment of his capacity to manage his own affairs. It appears that DF has a long history of conflict with others and for this reason, by his own reporting, he prefers to live alone and is not suitable for any group type accommodation.
Legislation
The principles to be observed by the Tribunal when making determinations in relation to guardianship and administration applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA).
These principles are:
"(2)(a) 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.
(b)Every person shall be presumed to be capable of —
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(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.
(d)A plenary guardian shall not be appointed under section 43(1) 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.
(e)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.
(f)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."
Section 43 provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
"(1)(a)has attained the age of 18 years;
…
(b)is –
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
…
(c)is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian."
Similarly, s 64 provides that a person in respect of whom an application for administration has been made:
"(1)(a)is unable, by reason of a mental disability, to make reasonable judgements 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."
Findings and reasons
In this case there are two applications for orders to be made, one for guardianship and one for administration. Although there are slightly different requirements to be satisfied in making these orders both depend on evidence in relation to the proposed represented person's capacity to make reasoned decisions in relation to lifestyle and financial issues.
With regard to DF's capacity to manage his own affairs, the Tribunal carefully considered the evidence provided in the written reports and at the hearing. The Tribunal accepted that DF has a personality type which brings him into conflict with others. The Tribunal recognises that DF's conflictual behaviour at times has a negative impact on his decision-making. The Tribunal is satisfied that at these times DF requires the assistance of others to extricate him from difficult lifestyle and financial situations.
Between the time the applications for guardianship and administration were made and the SAT hearing the issue of the boarding fee debt being incurred by DF's dogs at the dogs refuge, that question was resolved by DF surrendering the dogs to the refuge. The removal of DF's belongings left in his vacated HomesWest unit had been resolved by his move into new accommodation.
During the course of the hearing DF acknowledged responsibility for the credit card debt and agreed to work out a payment method with the bank.
The Tribunal was impressed by the fact that DF had continued on the mood stabilising medication and showed some insight into the need for ongoing compliance. The Tribunal is of the opinion that with the aid of the mood stabilising medication DF is able to control his outbursts enough to make reasoned decisions in respect of his person and estate. In addition DF is now in receipt of, and accepting of the need for, significant social and medical supports which will continue to be available to him when he moves out of the mental health facility and back into the community.
Based on the above, the Tribunal finds that the requirements, as outlined in s 43 and s 64 of the Guardianship and Administration Act 1990 are not satisfied in respect of capacity. The Tribunal finds that DF is not a person for whom guardianship or administration orders can be made.
Decision and order
The order of the Tribunal is:
That the applications for guardianship and administration be dismissed.
I certify that this and the 8 preceding pages comprise the reasons for decision of the members who heard this matter.
____________________________
D Dean, Member
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