DWB
[2006] WASAT 185
•5 JULY 2006
DWB [2006] WASAT 185
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 185 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:176/2006 | 31 MARCH 2006 7 APRIL 2006 | |
| Coram: | MS F CHILD (MEMBER) | 5/07/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Revocation of the guardianship order Reappointment of the Public Trusted as plenary administrator | ||
| B | |||
| PDF Version |
| Parties: | DWB |
Catchwords: | Guardianship and administration – Review of orders – Mental illness – Delusions directing expenditure – Need for protection of the estate – Reappointment of the Public Trustee as plenary administrator – No need for guardian – Revocation of guardianship order |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43, s 64, s 65, s 77 Mental Health Act 1996 (WA) |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : DWB [2006] WASAT 185 MEMBER : MS F CHILD (MEMBER) HEARD : 31 MARCH 2006
- 7 APRIL 2006
- GAA 2305 of 2005
- Represented
Catchwords:
Guardianship and administration – Review of orders – Mental illness – Delusions directing expenditure – Need for protection of the estate – Reappointment of the Public Trustee as plenary administrator – No need for guardian – Revocation of guardianship order
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 64, s 65, s 77
Mental Health Act 1996 (WA)
Result:
Revocation of the guardianship order
Reappointment of the Public Trusted as plenary administrator
(Page 2)
Category: B
Representation:
Counsel:
Represented : N/A
Solicitors:
Represented : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The State Administrative Tribunal confirmed the appointment of the Public Trustee as plenary administrator for a woman with a history of mental illness who has continued to suffer delusional beliefs about her entitlement to a property.
2 The State Administrative Tribunal considered that the estate of the woman could be at risk if she had control of her financial affairs as her beliefs may drive her to pursue legal action in an attempt to recover a property to which she has no legal entitlement. Such legal action would be without hope of success and would expose her to further legal costs.
3 The State Administrative Tribunal revoked the guardianship order which had been made to enable decisions to be made about where the woman should live, as she had relocated from the disputed property to another property and there was no need for the continuation of the order.
Reasons of the Tribunal
4 These reasons relate to a decision of the Tribunal made on 7 April 2006 in respect of DWB (the represented person).
5 The matters before the Tribunal are an application by the Public Advocate filed on 28 December 2005 for review of a guardianship order, dated 13 June 2005, by which the Public Advocate was appointed limited guardian of the represented person; and an application filed by the represented person on 31 January 2006 for review of an order, dated 24 May 2004, by which the Public Trustee was appointed her plenary administrator.
6 The application for review of the administration order submitted by the represented person seeks the removal of the Public Trustee as her administrator. The application disputes various payments paid by the Public Trustee as administrator and proposes the Public Trustee be removed as administrator to allow re-trial of a legal dispute which had been settled by the Public Trustee.
7 The application by the Public Advocate seeks revocation of the guardianship order, as it is submitted there is no longer any need for the appointment of a guardian.
(Page 4)
8 The review hearing was held on 31 March 2006. The represented person attended the hearing. The represented person's brother, NR, also attended as did the representative of the Public Advocate. The Public Trustee's officer attended the hearing by telephone as he advised the Tribunal that he had received a death threat from the represented person on his voicemail.
9 The applications for review were adjourned for a further written submission to be made by the represented person regarding a number of allegations she made during the hearing regarding the management of her estate by the Public Trustee. The submission was to be received by no later than 7 April 2006 at which time the decisions were reserved in these matters. These written reasons follow the decisions made on the applications for review.
Background
10 The jurisdiction and functions of the Guardianship and Administration Board (the Board) were absorbed by the State Administrative Tribunal from February 2005. The Tribunal now exercises jurisdiction and functions under the Guardianship and Administration Act 1990 (WA) (the GA Act) formerly exercised by the Board.
11 The Boardfirst made an order under s 65 of the GA Act on 10 July 2003 following an application by a social worker at Avro Clinic for the appointment of an administrator for the represented person. Section 65 is an emergency provision in the GA Act.
12 On 24 May 2004, an administration order was made by the Board appointing the Public Trustee as plenary administrator of the estate of the represented person with review of that order on 24 May 2009.
13 The Public Advocate was appointed limited guardian on 13 June 2005, following an application by the Public Trustee for the appointment of a guardian to make decisions as to where the represented person should live and the services to which she should have access. The appointment was made at a time when the represented person was refusing to leave a property in which she had been living which was the subject of legal proceedings.
(Page 5)
Legislation
14 On review of orders under the GA Act, the Tribunal must be satisfied that the represented person is a person for whom orders for guardianship and administration can be made.
15 In respect of a guardianship order, the Tribunal must be satisfied that the represented person has attained the age of 18 years, 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 or control in the interests of her own health and safety or for the protection of others and is in need of a guardian.
16 In respect of an administration order, the Tribunal must be satisfied that a person remains unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate and is in need of an administration order.
17 Section 43 and s 64 of the GA Act for the appointment of a guardian and administrator respectively are expressly subject to s 4 of the GA Act which provides:
"(1) In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in subsection (2).
(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 her own health and safety;
(ii) making reasonable judgments in respect of matters relating to her person;
(iii) managing her own affairs; and
(iv) making reasonable judgments in respect of matters relating to her 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."
Capacity
18 There are a number of reports on the Tribunal's files and previous file of the Board which refer to the psychiatric background of the represented person.
19 A recent report from Dr Frank Wilson who is a general practitioner, dated 8 February 2006, reports that he is not the represented person's regular medical attendant and is unsure whether she is capable in relation to her personal health care, living situation and financial affairs decision-making, he notes that the represented person gives a history of mental illness and is a patient of Avro Clinic.
20 A letter from Dr Jaroslaw Komeda, a consultant psychiatrist to the Tribunal, dated 6 February 2006, advises that he had been requested to
(Page 7)
- provide a report by the represented person for the specific purpose of trying to challenge her recent guardianship arrangements. His letter states;
"During three sessions with me, she has not been able to provide any objective information and my attempts at collecting this information from other sources have been unsuccessful.
As far as I know [the represented person] has been involved with Avro Clinic for quite some time and was provided the extensive multi disciplinary routine support and assessment which included home visits."
22 The most recent psychiatric report is from Dr Patricia Shalalah, a psychiatrist at Avro Clinic, dated 29 March 2006. Dr Shalalah provides a diagnosis of the represented person as suffering from "paranoid delusional disorder" and "possible early dementia". Dr Shalalah states she first recognised the impairment of the represented person on 20 February 2006, and her comments on prognosis are that the represented person is "likely to deteriorate as [she is] refusing treatment".
23 In relation to the represented person's capacity, Dr Shalalah states that she is not sure whether the represented person is capable of making reasonable decisions in relation to her personal health care or in relation to her living situation but notes that "the patient has stated that she is considering building a new home in Swan and query [whether this is] practicable".
24 In respect of the question, can the represented person make reasonable decisions now in relation to financial affairs, Dr Shalalah comments that she is not sure, but notes that the represented person "makes delusional interpretations of some of her financial paperwork". She notes further, that "fixed and complex delusions" were evident on 29 March 2006. Dr Shalalah considers the represented person is incapable of executing an enduring power of attorney and that the represented person could make a limited contribution to the hearing.
(Page 8)
Need for orders
25 During the course of the hearing, the represented person expressed concerns about the management of her affairs by the current and former trust officers, the costs charged by the Public Trustee and the need to regain control over her funds. She also expressed some bizarre beliefs regarding a number of matters, including the role of a psychiatrist who had treated her in the past and the identity of the current trust officer assigned to manage her financial affairs.
26 It appears that many of the represented person's concerns regarding her estate relate to her belief that the property of her late brother (the property) in which she had been living until October 2005, was her property or that she had some entitlement to remain living there.
27 It is clear that the represented person has a strongly held belief that she has been treated unfairly or unjustly in relation to her brother, PR's, deceased estate. That she has been treated unfairly, in her view, may well be true. Her brother, NR, who attended the hearing, seemed to agree that there was concern in the family about the terms of his late brother's will.
28 The will apparently left the brother's estate to an educational institution. The represented person's sense of grievance about this appears to have manifested itself in fixed views about the ownership of the property which was part of the deceased estate, views which have not changed despite the settlement of legal action taken to recover that property by the legal owners.
29 The affidavit submitted to the Supreme Court by the then Acting Public Trustee in support of approval of consent orders is before the Tribunal and sets out the background to this issue. I do not intend to repeat all the information but I accept and rely on the matters set out in the affidavit. Those matters make clear the length to which the represented person has gone since 2001 to give effect to her belief that the property belongs to her.
30 These issues go back to the original application before the Board which was brought by a social worker from Avro Clinic. The original application, now held on a file in the possession of the Tribunal, refers to the involvement by the Major Crime Squad in an investigation of an allegation of a forgery of a will of the late brother of the represented person. At the time of the original application the report of the applicant notes that the represented person "could not understand the seriousness of Major Crime Squad involvement".
(Page 9)
31 The Public Trustee settled the legal action in relation to the property as guardian ad litem of the represented person in September 2005. That action was brought by persons who had purchased the property from the executor and beneficiary of the deceased estate of the late brother. In settlement of the action the Public Trustee consented to an order for delivery up of possession of the property in which the represented person had been living since 2001. The orders made by the court included an order that the represented person pay the plaintiff's costs. The Public Trustee's report, dated 20 February 2006, refers to these legal proceedings as being resolved.
32 Prior to settlement of the property matter, the Public Advocate was appointed limited guardian to make decisions regarding where the represented person should live. There was concern expressed in the application brought by the Public Trustee of the trauma associated with a "forced eviction" from the property which would follow settlement of the property matter.
33 On review, the Public Advocate reported that the represented person had signed a lease in August 2005 for an alternate property, however, remained in the "disputed" property until October 2005 waiting for the outcome of the Supreme Court proceedings.
34 The report confirms that the represented person was offered assistance by the Public Advocate, and by the social worker from the Avro Clinic, in relation to accommodation but was able to find alternative accommodation herself. She is now living in that accommodation and despite some apparent difficulties referred to in the Public Trustee's report about repeatedly losing and having to have her keys replaced, the lease has recently been renewed.
35 The represented person is, according to the Public Advocate, a voluntary patient at Avro Clinic. During the course of the hearing, the represented person expressed opposition to the continuing visits from staff from Avro Clinic, and particularly Dr Shalalah, but stated that "she could not get away from them" and appeared willing to accept, or at least to be resigned, to the visits. The represented person is apparently not currently receiving any other services in the community.
36 The represented person's brother, NR, who attended the hearing, expressed the view that the represented person is mentally ill. He is concerned that the represented person is stalking him. He stated that the
(Page 10)
- represented person has erratic behaviour and that much of what she said in the hearing was not true.
37 The report of the Public Trustee notes that a death threat was made by the represented person on the voicemail of the Trust officer on 10 January 2006 and the matter has been referred to the police. The represented person denies that such a threat was made.
38 The represented person's comments throughout the review hearing were often not directly related to the particular matters under discussion. She spent some time explaining what she understood to be the role of the present Trust officer in relation to her affairs and beliefs about a previous relationship with him. These comments were strange and lacked any credibility but they did illustrate the delusional beliefs referred to by Dr Shalalah and reported by the Public Advocate.
39 The Public Advocate's report refers to the represented person repeatedly attempting to engage solicitors in relation to legal action to recover the property she believes belongs to her.
40 The represented person confirmed in the hearing that she is seeking a re-hearing of the property matter in the Supreme Court and has written to the Court on two occasions, and has engaged a solicitor for the purpose of reopening the matter.
41 Another issue arose in the hearing which is related to the view of the represented person that she is in some way entitled to her late brother's estate despite what is known of the terms of his will.
42 The trust officer referred to a potential legal issue over the alleged fraudulent share dealing by the represented person. He reported that the represented person had allegedly forged documents and then received money following a "buy-out of Commonwealth banking shares" which had belonged to the her late brother. The represented person denied that she had forged documents in relation to the shares, but she did say that after her brother's death that the payment of dividends had come to her and that she was grateful because she was able to put the money in her bank. When asked why she was entitled to those monies, she stated that she had a lot of expenses left over from when her brother had died. Later when questioned about her authority to deal with those monies as she was not his executor, she stated "[b]ecause he was my brother. That was my house. He lived in my house free for 15 years".
(Page 11)
43 She described the share buy back as "one of those miraculous things that happen" and explained how she was later sent money and deposited that money into her bank account.
44 The Trust officer indicated that proceedings were likely to be taken by the executor for recovery of the misappropriated funds and the matter was under investigation.
45 It was clear from the statements and demeanour of the represented person that she did not accept that she had no authority to deal with her brother's deceased estate. She persisted with the view that her brother had left a second will: "a new will". This belief appears to go back to the issues which prompted the original application and led to the protracted legal proceedings which the Public Trustee settled in September 2005.
46 In an effort to clarify the number of matters with which the represented person took issue regarding the administration by the Public Trustee, the Tribunal sought and received a written submission from the represented person. In her application for review, and in this further submission, the represented person challenges the payments made by the Public Trustee in payment of the costs of the legal action, and the payment of a removalist and cleaning of the disputed property. She refers to her "share money".
47 It is clear from this correspondence that the represented person does not accept the role of the Public Trustee in managing her affairs, nor does she accept that she has no entitlement to the money obtained in relation to the share transactions. She takes issue with the cost of the Public Trustee, however much of the costs associated with the charge of the Public Trustee relate to removalists and cleaning of the property. I accept the explanation of the trust officer that the payment for removalists included cleaning and waste disposal, and that it is for this reason that the cost varied from the quote for furniture removal provided by the represented person to the Public Trustee.
The Public Advocate's recommendations
48 The Public Advocate's submission is that the represented person no longer has any need of a guardian as there is no need for a decision-maker or an advocate for the represented person in relation to her living situation as the question of where she should live has been resolved.
49 The Public Advocate's recommendation is that the administration order be confirmed to safeguard the represented person's estate.
(Page 12)
50 The Public Advocate submitted that if the administration order was revoked, that the represented person would use her entire estate to pursue legal action in the Supreme Court and that this would diminish her estate rapidly.
Reasons
51 Although the report of Dr Shalalah states that she is unsure regarding the capacity of the represented person to make reasonable judgments about her financial affairs, she states that she believes that the represented person is not capable of executing an enduring power of attorney.
52 Having considered the medical evidence, the presentation of the represented person in the hearing, the Tribunal is satisfied that the medical evidence before it is consistent with the diagnosis of the represented person as suffering a mental illness which was first made in 1996.
53 The weight of the evidence supports the finding that the represented person remains a person for whom an administration order can be made as she is a person who is, by reason of that mental illness, unable to make reasonable judgments about her financial affairs.
54 In respect of the guardianship order, the evidence of Dr Shalalah is that the represented person has delusional beliefs and a history of mental illness and is refusing treatment. This indicates that she is a person for whom a guardianship order may be made in that she is unable to make reasonable judgments in respect of her person.
55 Having considered the whole of the evidence, the Tribunal is satisfied that the represented person is a person who is in need of an administrator as her estate is at risk because of her persistent false beliefs about her entitlement to her late brother's deceased estate. The strength of her belief and the distress this causes her is evident. The Public Advocate submitted, and the Tribunal accepts, that should the represented person have control over her assets, she is likely to use them in attempting further legal action in the Supreme Court for re-trial of the matters associated with the will of her late brother.
56 This issue has been assessed by the Public Trustee based on legal advice of the prospects of success of any action and the matter settled in 2005. Further legal action on this issue is likely to put the represented person at risk of further costs orders against her.
(Page 13)
No less restrictive alternative
57 The represented person is considered not capable of executing an enduring power of attorney and even if she were, it is likely that such an arrangement would not provide the level of control required to provide protection of her estate.
58 In particular, the effect of s 77 of the GA Act is that the represented person is protected from entering into contracts except with the consent of the administrator and the Tribunal. The section provides a measure of control on the ability of the represented person to engage solicitors in furtherance of legal action and therefore provides a measure of protection.
59 A plenary order appointing the Public Trustee is the appropriate order in these circumstances.
60 In respect of the guardianship order, the submission of the Public Advocate is that the represented person's accommodation is settled and this is accepted as the current position, although the concerns expressed by the Public Trustee about the capacity of the represented person to remain in her current accommodation in the longer term are noted.
61 There are no current needs of the represented person regarding accommodation or services which require the authority of a guardian.
62 The behaviour of the represented person is disturbing to her brother and to others, and he supported the reappointment of both a guardian and an administrator for her.
63 A guardian does not have authority to manage or respond to the types of behaviours about which concern has been expressed. If the represented person's behaviour, which has caused concern to her brother, continues, such as the threat made to the trust officer, it may bring her within the auspices of the Mental Health Act 1996 (WA) for compulsory treatment. This is not a matter for a guardian to determine.
Orders
1. Appointment of the Public Trustee as plenary administrator is confirmed with review of the order on or before 20 June 2011.
2. The guardianship order is revoked.
(Page 14)
- I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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