DP
[2020] WASAT 37
•1 APRIL 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: DP [2020] WASAT 37
MEMBER: MR J MANSVELD, MEMBER
HEARD: 29 OCTOBER 2019 AND 10 DECEMBER 2019
DELIVERED : 1 APRIL 2020
PUBLISHED : 6 APRIL 2020
FILE NO/S: GAA 3023 of 2019
DP
Represented Person
Catchwords:
Guardianship and administration - Review of guardianship and administration orders - Capacity - Conflict of interest - Best interests
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 43(1)(b), s 43(1)(c), s 43(1)(e), s 44, s 44(1)(b), s 45, s 64(1)(a), s 64(1)(b), s 64(1)(c), s 64(1)(d), s 68, s 69, s 84, s 90
Health (Miscellaneous Provisions) Act 1911 (WA)
Result:
Administration order confirmed and guardianship order amended
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
The decision in this matter was delivered on 1 April 2020. The following reasons have been edited from the transcript to anonymise the names of the parties and to correct minor errors and omissions.
History
DP is 54 years of age. She has a diagnosis of a psychiatric condition.
On 26 September 2017, the Public Advocate was appointed DP's limited guardian to make decisions concerning where and with whom she should live. The Public Trustee was appointed the plenary administrator of her estate (2017 orders).
The appointment of a guardian and administrator was made by the Tribunal pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
The application for the appointment of a guardian and administrator had been made by a community mental health team (mental health team).
Reports from the time revealed that DP was separated from her spouse, MP. She lived alone in a property that had been reported to the local council by the mental health team as unfit for human habitation. DP was said to be living in squalor and had significant hoarding behaviour.
DP had been admitted to hospital under mental health legislation as an involuntary patient. A report from her treating psychiatrist stated that she had a chronic psychotic illness which had not been treated until recently. She had poor insight into her illness and her support needs and was asking to be discharged into the squalor conditions of her home.
In August 2019 MP made an application for review of the 2017 orders (review application). His application showed that he and DP were residing in the same property.
Leave was granted to MP on 29 August 2019 to seek review of the 2017 orders and a hearing took place on 29 October 2019. DP did not attend and the guardian from the Office of the Public Advocate (guardian) advised that she had not had the opportunity to obtain DP's views and wishes in respect of the review application.
The hearing was adjourned to enable DP to attend if she chose to do so and for the guardian to interview her to obtain her views and wishes.
The final hearing took place on 10 December 2019. Present were DP, MP, VP, DP's mother, the guardian and a legal officer from the Public Trustee (legal officer).
The decision was reserved.
Decision
I have decided to reappoint the Public Trustee as the plenary administrator of DP's estate and the Public Advocate as her limited guardian with increased authorities from the 2017 orders. The Public Advocate is to continue to be given the authority to decide where and with whom DP should live and in addition to decide the services to which she should have access and to make her treatment decisions.
The orders will be reviewed in five years pursuant to s 84 of the GA Act.
My reasons follow.
The relevant legislation
The primary concern of the Tribunal is the best interests of DP: s 4(2) of the GA Act.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes that DP has expressed, in whatever manner at the time, or as gathered from her previous actions: s 4(7) of the GA Act.
DP 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: s 4(3) of the GA Act.
Under s 43(1)(b) of the GA Act, the Tribunal cannot consider appointing a guardian for DP 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.
Under s 64(1)(a) of the GA Act, the Tribunal cannot consider appointing an administrator of the estate of DP 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 s 3 of 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 DP, the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of DP can be met in a manner less restrictive of her freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c), and s 64(1)(b) of the GA Act.
If the Tribunal decides that DP is in need of guardianship and administration orders it must then 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: s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of DP, a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on DP: s 4(5) and s 4(6) of the GA Act.
When reviewing guardianship and administration orders the Tribunal can relevantly confirm the orders, revoke the orders and substitute new orders for them or amend the orders: s 90 of the GA Act.
Reports from the mental health team
A report from a psychiatry registrar stated that DP is diagnosed with schizophrenia with significant negative symptoms. DP is said to have poor insight into her illness and does not acknowledge the need to engage with mental health services. The psychiatry registrar assessed DP as capable of making small purchases and paying small bills but otherwise incapable of making other financial decisions and decisions concerning her living arrangements, support services and medical treatment. DP is considered to be incapable of making an enduring power of attorney or enduring power of guardianship.
In her report, a social worker stated that DP lives with MP in a unit MP rents. This meets DP's basic need for food and shelter however she spends most of her time in her bedroom. The social worker stated that DP has told her she interacts with MP only when necessary.
DP has no close friends and only intermittent contact with her mother.
The social worker stated that there has been past physical and emotional abuse by MP against DP which had necessitated her spending time in a women's shelter, however there is no evidence of this happening in recent times.
The social worker reported that DP receives no supports other than from MP and her interaction with the mental health team.
The social worker stated that although DP is compliant with treatment for her mental illness she has no insight into that treatment and the necessity to stabilise her mental health.
The social worker does not consider that DP has the ability to forward plan or budget her income. MP is said to encourage DP to adopt a negative view of the role of the current administrator.
DP's estate
The administrator reported that DP is the sole owner of a property (property A) and the joint owner with MP of two properties (property B and property C or the jointly owned properties).
DP had previously owned another property which had been sold by her administrator in December 2018 for $55,000.
Property B is subject to a notice made under the Health (Miscellaneous Provisions) Act 1911 (WA) declaring it unfit for human habitation and requiring cleaning and repair works (unfit for habitation notice).
Property C is under a local government notice requiring it to be secured and for rubbish to be removed and rodents to be eradicated.
DP has savings of about $21,000 held by the administrator. She has no debts.
The review application
MP has made a number of written statements in the review application. Relevantly from pages 6-8 of the application form:
For Tribunal to revoke authority over [DP] and reinstall to me, [MP] as I am her husband and carer.
The guardianship order to be revoked and for me to have responsibility over my wife. Ensure ability to make our own financial decisions. One property has already been sold without consultation with me.
Ability to advocate for her [DP] health-medical treatment and more contact with Doctors as feel her mental health declining.
As above property has been sold without consultation with me despite having paid for the property.
Please note [DP] is unwell and spends a lot of time in bed so may be unable to attend.
In his oral evidence MP said that he views his relationship with DP as that of husband and wife except that they are not intimate. He is aware that the administrator has initiated Family Court (property settlement) action. Although he originally had legal representation in the Family court matter this is no longer the case because of the costs involved.
MP said that he takes care of DP and will continue to do so. He confirmed that DP spends most of her time in her room which is different to how she was previously when she was active and which he regards as being the consequences of a change of medication (he believes DP is overmedicated). MP said that the mental health team will not discuss his concerns with him.
When asked the reasons for the review application, MP said he believed the administrator would look after DP's finances '… not sell and take properties away or whatever and take her money, take my money too[.]' (ts 12, 10 December 2019).
MP said the administrator has not consulted him on DP's financial matters.
MP stated that the administrator had proposed that the property C be sold to make funds available to deal with the unfit for habitation notice on the property B, however he refused to do so stating '… I work[ed] hard for that. Why should I sell it just because you [the administrator] come along … high and mighty on your white house (sic) thinking you're doing the right thing[?]'(ts 13, 10 December 2019).
MP also said that he '… would give all the both of the houses if she [DP] was all right, if she didn't need to take medication and that, but it doesn't work like that… I won't cheat her[.]' (ts 11, 10 December 2019).
However, MP further said that he would take the administrator to court (or take some other action) if it tried to sell any of the jointly owned properties. MP said '… all they want is to sell [property C] as well. Just sell, sell, sell. And they would put me on the street and have her money in their pocket, whatever it is[.]' (ts 24-25, 10 December 2019).
MP stated that when he explains things to DP it is his view that she understands what is being said. He believes she is not a person in need of a guardian and administrator but were the Tribunal to determine the need for appointments he would propose himself. He does not consider that his interests conflict with those of DP.
The administrator
In the report of the trust manager it is noted that for the day to day management of DP's estate there is (generally speaking), minimal contact with DP, limited contact with MP and ongoing contact with the mental health team. DP is said to be living within her means, however provision needs to be made for legal and property costs.
The legal officer stated that representations have been made to MP to sell property C to either comply with the unfit for habitation notice on property B or to make cash available to both DP and MP. The proposal has been rejected by MP.
The legal officer stated that DP and MP are considered to be separated under one roof. Family Court (property settlement) proceedings have been initiated by the administrator on behalf of DP. Although MP is now challenging the ex-nature of his relationship with DP, he has sworn an affidavit in the Family Court acknowledging the separation.
The guardian
The guardian said that she met with DP on 15 November 2019 at the community mental health clinic in the presence of the mental health team's social worker.
The guardian stated that DP had a flat affect with little spontaneous speech and gave superficial answers. She appeared terrified of abandonment and she repeatedly said that she was unable to live by herself.
DP told the guardian that in 2014 MP left her after a fight and she lived alone for three years. However MP ultimately returned and they live in a rental unit. She said that MP treats her 'okay' and that he does the cooking and cleaning. She is happy to stay in her room as she feels better and less overwhelmed when she is in her bed.
DP told the guardian that she trusts MP and that she had no one else but him and that MP had good reason to make the review application. She said that MP wants what they have worked for together, to protect all the properties.
DP told the guardian that she is not keen on the Family Court action and prefers things to remain the same.
The guardian stated that DP will not consider any other accommodation other than her present arrangement with MP. The mental health team are said to be of the view that DP cannot live independently.
The guardian stated that DP has refused offers of support services and does not want to make an application to the National Disability Insurance Scheme.
DP
In her oral evidence DP said MP is the only person she can rely upon. She supports the appointment of MP as her guardian and administrator but could not explain what that might mean. She was unable to describe the roles of a guardian and administrator.
Discussion of the issues
I do not accept the submission of MP that DP can make her own decisions after he has explained things to her.
DP is profoundly disabled by her psychiatric condition. She is socially isolated and is unable to manage her life independently. She is unmotivated and lacks capacity to engage, set goals or plan anything other than maintain herself in her room.
On the evidence DP plays no part in the decisions regarding her estate. Her statement that things should remain as they are and that MP is protecting the jointly owned properties, is in my view entirely the views of MP as he has expressed them to DP.
I am satisfied that DP is incapable of protecting her own health and safety and is in need of oversight and care in the interests of her health and safety.
I am further satisfied that the impact of the psychiatric condition on her mental state and reasoning is such that she is unable to make reasonable judgments about important personal and financial matters.
The living arrangements of DP and MP are unusual and not entirely clear. The evidence is that MP has sworn an affidavit to the Family Court acknowledging that he and DP are separated but living under the same roof. However, in the Tribunal proceedings he says that he and DP have resumed as husband and wife although not intimately. MP does not appear to have filed anything further on that matter with the Family Court and he says he no longer has legal representation in that jurisdiction.
On the evidence before me I must accept that that status of the relationship advocated in the Family Court remains the position.
It seems to me that the major trigger for the review application by MP is the action on the jointly owned properties as proposed by DP's administrator and MP's concern that he will lose control over those properties and be financially disadvantaged. This is clear from both his written application and his oral evidence.
Despite this I do accept that MP provides support to DP in that they live under the same roof and he therefore provides a degree of supervision and oversight. It appears that DP is entirely dependent on this arrangement because she is unable to consider any alternative. However the fact that the arrangement is the way it is, is not of itself support for the proposition that it is the best form of accommodation for DP given her extreme social isolation.
I am satisfied that MP is unable to separate his own financial interests from those of DP such that he is in a position to consider her interests independently of his own.
As it stands that part of DP's estate represented by the jointly owned properties is in a poor and compromised state because MP will not deal with DP's administrator to resolve what it is best to do with the jointly owned properties.
Whilst MP has the freedom to decide for himself how his interests in the jointly owned properties should be protected that decision as it is currently made by him is in my view contrary to the financial interests of DP.
It therefore remains in DP's best interests for the Public Trustee to remain as the administrator of her estate and I will confirm the order made on 26 September 2017.
The conflict of interest present in the financial affairs of DP and MP impact also on the possible alternatives available for DP's accommodation. Although in a practical sense alternatives might be limited because of the effects of DP's psychiatric condition, nonetheless there is not the ability currently to free up funds from DP's estate (for example by selling the jointly owned properties) to at least expand the possibilities.
Because I have found that the interests of MP conflict with those of DP, I cannot consider appointing him as her guardian: s 44(1)(b) of the GA Act. The matter of the Family Court action also intrudes on MP's submission that he and DP are in fact husband and wife and therefore he should be the appointed guardian.
MP is not currently suitable to be appointed as DP's guardian.
I have decided that it remains in DP's best interests to have the Public Advocate as her guardian even though it will no doubt continue to be very difficult for the guardian to give practical effect to the order.
I have further decided that the appointed guardian should be given additional functions to the one contained in the 2017 orders. These additional functions are to decide the services to which DP should have access and to make her treatment decisions given what appears to have been a regression in her mental state which warrants a full psychiatric review.
The guardianship and administration orders provide a degree of oversight and protection to DP given her dependency on MP and the fact that she is housebound and has no engagement with the community other than through her mental health team.
The guardianship and administration orders will be set for review in 5 years: s 84 of the GA Act.
Orders
The Tribunal orders:
The administration order dated 26 September 2017 is confirmed as follows:
1.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).
The guardianship order dated 26 September 2017 is amended so that it now reads:
2.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;
(c)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)To determine services to which the represented person should have access;
3.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.
4.The administration and guardianship orders are to be reviewed by 1 April 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (MEMBER)
6 APRIL 2020
0
0
2