EW - [2008] WASAT 195

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: EW [2008] WASAT 195

MEMBER: MS D DEAN (MEMBER)

HEARD: 18 JUNE 2008

DELIVERED : 27 AUGUST 2008

FILE NO/S: GAA 2556 of 2007
GAA 2557 of 2007

BETWEEN: EW
Represented Person

Catchwords:

Section 86 application by represented person to review administration and guardianship orders - Capacity of the represented person - Represented person with acquired brain injury - Represented person with mental illness - Need for an order - Best interests of the represented person - Public Trustee confirmed as administrator - Public Advocate confirmed as guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 64, s 86, s 90(1)
State Administrative Act 2004 (WA), s 78

Result:

Public Trustee confirmed as plenary administrator
Public Advocate confirmed as plenary guardian

Category: B

Representation:

Counsel:

Represented Person : Selfrepresented

Solicitors:

Represented Person : Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In 1991, EW, the represented person, suffered a brain haemorrhage leaving her with significant cognitive impairment. She was subsequently diagnosed with Bipolar Affective Disorder which further compromised her cognitive functioning.
EW had been married three times and had four children from her first two marriages. From the time of her brain haemorrhage she had little or no contact with her children.
In 1993, the then Guardianship and Administration Board made orders appointing the Public Advocate plenary guardian and the Public Trustee plenary administrator of the estate of EW.
In 1995, EW married for the third time to a man who provided the care she needed to remain living safely in the community. Some months after the marriage the guardianship and administration orders were revoked.
As a result of the findings of the Guardianship and Administration Board that her husband was drinking to excess, leaving her alone for long periods, physically abusing her and mismanaging her finances, new guardianship and administration orders were made in 2003, again appointing the Public Advocate plenary guardian and the Public Trustee plenary administrator of the estate of EW. These orders were to be reviewed in September 2008.
In December 2007, EW applied to the State Administrative Tribunal for review of the guardianship and administration orders stating as her major reason the fact that the guardian had taken out a violence restraining order against her husband who, as a result, no longer lived with her. EW said she wanted the guardianship and administration orders revoked so her husband could return to live with her.
The State Administrative Tribunal accepted the evidence provided at the hearing that EW was a person for whom orders could be made and that she continued to be in need of a guardian and an administrator. The orders appointing the Public Advocate and the Public Trustee were confirmed.
The guardianship order was confirmed for two years with the expectation that if the husband addressed his drinking and anger management problems and was able, and willing, to resume his role as carer there might no longer be the need for a formally appointed guardian. The Tribunal confirmed the administration order for five years based on a finding that an administrator was needed for the foreseeable future to manage EW's finances and to ensure she had adequate funds to meet her everyday needs.

Background

EW, the represented person, was first married at the age of sixteen. The two daughters from this marriage lived with her mother. EW separated from her first husband and married her second husband in 1988. She had two daughters by her second husband.
In 1991, EW suffered a brain haemorrhage resulting in significant cognitive and physical problems. In May 1992, she was diagnosed with bipolar affective disorder and spent some time in a psychiatric hospital. The marriage broke down in June 1993. The children of this marriage were, at that time, living with their paternal grandmother.
In November 1993, the then Guardianship and Administration Board (Board) made orders appointing the Public Trustee plenary administrator and the Public Advocate plenary guardian for EW. At that time the State Administrative Tribunal (Tribunal) had substantial evidence before it in relation to EW's cognitive impairment resulting from brain damage from a subarachnoid haemorrhage. The brain injury resulted in spasticity, "difficult speech" and "disinhibition". Her cognitive impairment was judged to put her at risk of significant physical and financial risk. In addition, evidence was provided that her diagnosis of bipolar disorder resulted in labile moods, further disinhibition and an "unrealistic approach to problem solving".
In 1995, EW married for the third time. Prior to the marriage her husband had been living with her as her carer. After the marriage he continued to live with her and to provide the care she needed.
On the application of the Public Advocate, the guardianship order was revoked in May 1996. In February 1997 the administration order was also revoked.
In September 2003, new orders were made by the Board appointing the Public Trustee plenary administrator and the Public Advocate plenary guardian for EW. Both orders were to be reviewed in five years. These orders were made on findings that EW was deemed to be at risk both physically and financially as her husband, who was her carer, was abusing alcohol and leaving her alone for extended periods. Given that EW has a cognitive impairment, poor mobility and limited ability to care for herself, the Board found that her husband's behaviour put her at significant risk of further harm. Evidence was provided that during the six months prior to the orders being made, EW lost almost half her body weight, ostensibly because there was not enough money to purchase food or other life necessities. In addition, services necessary for EW's welfare were not accepted by the couple. Many household items were hocked leaving them without items such as a washing machine and fridge. EW reported to the Public Advocate that her husband "regularly hit her" and had knocked out two of her teeth. EW is incontinent and was not being supplied with incontinence pads because of the shortage of funds. The Board found that without pads and access to showering, EW's personal hygiene was unacceptably compromised.
In June 2008, on an application by EW, both orders were reviewed and confirmed; the administration order for a further five years and the guardianship order for a further two years.

Evidence available to the Tribunal prior to the hearing

The following written reports were provided to the Tribunal prior to the hearing.
•Report dated 21 December 2007 from Dr M, general practitioner, who saw EW once on 21 December 2007. Dr M reports that EW has a controlled mood disorder with no current psychosis. Dr M assessed EW as capable of making her own decisions about all major aspects of her life including in relation to her finances and lifestyle.
•Copy of a report dated 4 December 2003 from W, (Clinical Neuropsychology) Candidate, who assessed EW in October 2003 as functioning at a borderline level across most cognitive tasks. EW "demonstrated consistent difficulty with complex, abstract, or high level tasks and abilities. She was unable to hold in mind and juggle more than one thing at once, and showed inflexible, concrete thinking style. Her insight was also questionable given her denial of any cognitive or emotional difficulties". "Her poor problemsolving and abstract reasoning abilities and limited attentional capacity suggest that she would be prone to impulsive choices without foreseeing future consequences. Given her over-familiar, trusting manner, she may also be vulnerable to exploitation both by strangers and those familiar to her I would therefore recommend some level of supervision of her affairs".
•Copy of a report dated 6 June 2008 addressed to the guardian from C, clinical neuropsychologist in relation to an assessment done by her at that time in which she reported that EW, in 1991, suffered a subarachnoid haemorrhage secondary to middle cerebral artery aneurysm that resulted in hemiplegia, disarthria, epilepsy and symptoms of bi-polar disorder. C assessed EW as having a verbal IQ in the borderline range, working memory and processing speed in the extremely low range of functioning. She reported that the results were not significantly different from previous test results in 2003.
•Report from the Public Trustee dated 26 March 2008 stating that EW "has trouble staying within her budget and regularly contacts the office for advances for items other than food". The Public Trustee advised that in his view EW is "vulnerable to financial exploitation as she has a tendency to hock items she needs, such as her wheelchair, for far below its value".

Hearing

The hearing was attended by EW, the represented person, SH, her case manager and JH, the guardian.
Throughout the hearing EW repeatedly stated that she wants the guardian removed because she (the guardian) took out the restraining order against her husband which, ostensibly, resulted in him permanently leaving the family home. Throughout the hearing EW repeated many times that she is lonely, loves her husband and wants him back living with her.
The guardian advised that in previous hearings before the Board, EW reported that her husband had physically assaulted her. She continued to report similarly to various parties in the intervening years. At least one of these reports was investigated by the police. The guardian stated that the husband, although clearly attached to his wife, is addicted to alcohol and this impacts on his behaviour toward his wife. While living with his wife, he provided some care for her but put her at risk by leaving the house for days at a time leaving her alone and with no one to care for her. Because of his need for alcohol he hocked household furniture leaving the couple without necessary furniture and equipment. This is reflected in reports to previous hearings. The Public Trustee reports that EW continues with this behaviour. This was disputed in the hearing by both EW and the case manager who advised that more recently EW purchased a new television, washing machine and camera. To date, none of these goods have been hocked. EW acknowledged that having the Public Trustee manage her estate had made the purchase of these goods possible.
The guardian advised that EW is registered with Disability Services Commission (DSC) through which funding for 24 hour support is provided. The funding became available in December 2007. Currently EW lives alone in Homeswest accommodation. To take advantage of the 24hour funding she will need to live with others in supported accommodation. EW is resistant to this. The guardian believes a move into 24 hour supported accommodation is in EW's best interests.
Since the husband moved out of the home, carer support has been provided to EW for several hours a week. She is funded for six hours support a day. The guardian explained that there is a need for 24hour care but EW is resistant to this and currently chooses to accesses only two day's care a week. The guardian said it is unclear how EW manages at night and it may be that her husband returns to the house in the evenings and weekends when there is no carer on hand and this may be the reason that EW is so resistant to additional care being provided.
The guardian advised that a violence restraining order (VRO) was put in place by her two and a half years ago as a result of an incident involving the police and a knife being held at EW's throat by her husband who was very drunk at the time. This incident was witnessed by two other people who called the police because of their concerns for the safety of EW. EW sustained some minor knife wounds in the course of the incident. Throughout the discussion in the hearing about this and other incidents of violence involving her husband, EW vehemently denied that these events occurred or that her husband had ever assaulted or threatened to assault her. She did acknowledge that he "may yell at me and raise his voice" on occasions (T:34). The guardian advised that the police charged the husband as a result of the knife incident but the charges were later "dismissed" as neither EW nor her friend who witnessed the attack wanted the husband to go to jail so they would not provide evidence in relation to the assault.
Since the VRO was put in place, no further damage has been done to the family home. The guardian said she had spoken with the husband many times during her appointment and had been told by him that his alcohol use was a direct result of the level of stress he felt when caring for his wife who, he said, refused support services offered to her at various times.
Given the level of distress expressed by EW about the separation from her husband there was some discussion in the hearing about the possibility of supervised contact between EW and her husband. The guardian explained that this had been considered in the past but, because at that time there was no funding to provide the support and supervision required and there was no way of ensuring the safety of EW if unsupervised visits occurred. The guardian said that, to her knowledge, the husband has breached the VRO fifteen times and is currently at risk of imprisonment as a result of these breaches.
The guardian said she has spoken with the husband about him entering a program to help him deal with his addiction to alcohol because when he is not drinking she believes he is not a risk to EW. The guardian advised that, although he did enter a program for a time, the husband continues to drink and is still considered a risk to EW.
The guardian advised that over the years EW's uninhibited and sexualised behaviours have been a concern and put her safety at risk. EW insists that she has never exhibited sexualised behaviour and any stories she had told about her husband offering her to other men for sex were stories she "made up for a pension" (T:18).
The guardian said that EW has encouraged strangers to move in and live with her putting her at risk in various ways. EW insists that the people she invites to live with her are friends of long standing. She complained that people have had to move out of her unit because the guardian insists they move. The guardian explained that EW lives in Homeswest accommodation which she would be at risk of losing if nontenants are allowed to move in.
Other information was provided by the guardian in respect of allegations that EW was selling some of her prescribed medications to drug users. EW denied this allegation.
There was also some discussion about EW's four daughters (from her first two husbands) and the lack of contact she has had with them over the years. In addition to her daughters, EW now has several grandchildren. EW advised that she does not see the two older daughters who are the mothers of the grandchildren and has not seen the two younger daughters since 1993. EW said she would like to have contact with her children and grandchildren. The guardian said that a plan for contact can be developed now that support funding is available.
The guardian recommended that, given the multiple issues and needs in relation to EW, the order appointing the Public Advocate plenary guardian should be confirmed.

Legislation

The represented person has sought a review of the administration order pursuant to s 86 of the Guardianship and Administration Act 1990 (WA) (GA Act).
Upon review, the Tribunal may confirm the order, amend the order, revoke the order or revoke the order and substitute another order for it (s 90(1), GA Act).
The principles to be observed by the Tribunal when making determinations in relation to proceedings brought under the GA Act are set out in s 4.
These principles are:
•the best interests of the person are of primary concern to the Tribunal;
•every person is presumed to be capable of making reasonable judgments in respect of his or her person unless proven otherwise;
•an order appointing a guardian should only be made if the needs of the person concerned cannot be met by other means that are less restrictive of their personal freedom of decision and action;
•if an appointment is made, a plenary guardian should only be appointed if the needs of the person concerned cannot be met by a limited appointment; and
•the Tribunal should, as far as possible, ascertain the views and wishes of the person concerned.
In deciding whether to appoint an administrator and in reviewing the appointment of an administrator, the Tribunal is required, by the provisions of s 64 of the GA Act, to make a finding that the person is unable, by reason of a mental disability, to make reasonable judgments in respect to matters relating to all or any part of his estate and is in need of an administrator of his or her estate.
Similarly, in appointing or reviewing a guardianship order the Tribunal is required by the provisions of s 43 of the GA Act to make a finding that the person 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.

Findings and reasons

Capacity of the represented person to make decisions for herself

Consistent evidence has been provided to the Tribunal over several years that EW is, because of her cognitive disability unable to make reasonable judgments for herself in relation to her finances or her health and safety.
The Tribunal did not find the evidence provided by Dr M, the GP, who saw EW once and assessed her as capable, convincing, but is satisfied on the evidence provided by W, (Clinical Neuropsychology) Candidate, and C, clinical neuropsychologist (both of whom assessed EW as having significant cognitive deficits resulting in poor problem solving and abstract thinking, and prone to impulsive choices without foreseeing future consequences) that EW is a person for whom both guardianship and administration orders can be made. The guardian also provided evidence in the hearing that EW has little or no insight into her own safety and welfare needs, and is a person for whom orders can be made.
In addition, various other professionals, including psychiatrists, mental health nurses and social workers over the years provided evidence for previous hearings that EW satisfies the criteria in s 64 of the GA Act in that she is unable by way of a mental disability to make reasonable judgments in respect of her estate. Similarly, evidence has been provided by these professionals over the years that EW satisfies the criteria in s 43 of the GA Act in that she is, because of her cognitive disability, incapable of looking after her own health and safety.
No evidence was put before the Tribunal that there has been any change in EW's ability to make reasonable judgments in relation to either her finances or lifestyle and welfare.

Need for an order

As set out in the legislation, the appointment of an administrator and/or a guardian requires the Tribunal to find there is a need for an order and that the needs of the person cannot be met by any means less restrictive of the person's freedom of decision and action.
In this case, EW has been assessed by professionals as having little or no insight into her own cognitive limitations. This puts her at risk of physical, emotional and financial abuse. She has a history of poor financial decision making which, in the past has put her health at risk because of a lack of funds to purchase food and other necessities of life. There is nothing to suggest that this behaviour has changed as evidenced by the Public Trustee's report that EW "has trouble staying within her budget" and that she continues to "hock" goods for less than their value to purchase less necessary items. The evidence provided in the hearing by EW and the case manager that she has recently purchased household items which have not been hocked, given the short time frame, is not in itself enough to convince the Tribunal that the habit of hocking goods to purchase other items is no longer a problem.

EW's denial in the hearing that her husband has ever physically or psychologically abused her in the past when (according to reports before the Tribunal) there is evidence to the contrary, shows a lack of insight into how to get her needs met safely. It is not clear whether her denials that her husband ever abused her are based on her own beliefs or are fabrications designed to convince others that her husband is safe to be with. Either way the Tribunal finds that there is a need for a guardian to be appointed to ensure that EW's safety and wellbeing is maintained.
Having found that there is a need for an administrator and a guardian, the Tribunal must decide who to appoint. In some cases, a family member or a friend is suitable and willing to be appointed. In this case, there is no willing or suitable person other than the appointments of last choice ie the Public Trustee and the Public Advocate.

Wishes and best interests of the represented person

Where possible the Tribunal takes into account the views and wishes of the person themselves. In this case EW made her wishes very clear to the Tribunal both in her written application and in her evidence at the hearing. She clearly stated, many times, that she wants the orders revoked so that the VRO against her husband, instigated by the guardian, can be lifted to facilitate the return of her husband to live with her. Unfortunately, no evidence has been provided to the Tribunal to suggest that the return of her husband at this time is in the best interests of EW. Indeed, the Tribunal would have grave doubts that EW's safety could be guaranteed if the husband returned to the family home at this time. A safer option may be for supervised visits to be arranged between the husband and EW with a view to him undertaking some counselling and/or courses to help him deal with the issues that in the past resulted in the risk to EW's health and safety.
Although the Tribunal is clear about the wishes of EW for revocation of the orders the Tribunal finds that this is not a decision which would be in her best interests at this time.
EW acknowledged in the hearing that since the appointment of the Public Trustee to manage her estate she has been able to save and purchase new household goods. While she indicated that she would like to take control of her finances again she did not appear to be averse to the continuation of the Public Trustee in the role of administrator.

Decision

The Tribunal finds that it is in EW's best interests that the Public Trustee continue in the role of administrator to make daytoday budgeting decisions, to pay accounts and to ensure that EW receives an allowance adequate for her daily needs. Similarly, the Tribunal finds that it is in EW's best interests that a guardian be appointed to make decisions about matters relating to her person including where she should live and with whom she should live, to manage the contact she should have with others, particularly her husband, and to make decisions in relation to legal matters particularly in relation to the violence restraining order.

Order

The Tribunal made the following orders:
1.The appointment of the Public Trustee is confirmed for a further five years.
2.The appointment of the Public Advocate is confirmed for a further two years.

I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER