FBP - [2008] WASAT 21

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: FBP [2008] WASAT 21

MEMBER: MS D DEAN (MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
MS V O'TOOLE (SESSIONAL MEMBER)

HEARD: 4 DECEMBER 2007

DELIVERED : 5 FEBRUARY 2008

FILE NO/S: GAA 2139 of 2007

BETWEEN: FBP
Represented Person
AND
SB
Applicant

Catchwords:

Applications for guardianship and administration - Capacity to make reasonable judgments - Need for a guardian - Need for an administrator - Conflictual relationship between partner and family of origin - Quality of couple's relationship - Need for an independent decisionmaker

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 44, s 51, s 64, s 70, s 119
Interpretation Act 1984 (WA), s 13A

Result:

The Public Advocate is appointed to make decisions in respect of accommodation, contact and services
The father is appointed to make decisions in respect of treatment and health care
The Public Trustee is appointed plenary administrator
These appointments are to be reviewed in two years

Category: B

Representation:

Counsel:

Represented Person : Selfrepresented
Applicant: Selfrepresented

Solicitors:

Represented Person : Self-represented
Applicant: Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications for guardianship and administration were made to the Tribunal in respect of a young man with an acquired brain injury as the result of a motor vehicle accident.
Prior to the accident, the young man lived with his partner in a home they were jointly purchasing. Soon after the accident, significant conflict developed between the partner and the young man's family of origin. This developed to the point where there was little or no communication between the parties and decisions were being made to accommodate the conflict between the parties rather than in the best interests of the young man.
The Tribunal found that it was in the young man's best interests to have decision‑makers independent of the partner and family appointed, but took into account the fact that the father had made all medical decisions since the accident with the agreement of the partner.
The Tribunal appointed the father limited guardian to make treatment and health care decisions. The Public Trustee was appointed plenary administrator and the Public Advocate was appointed limited guardian to make decisions in respect of accommodation, services and contact with others.

Background

These reasons relate to a decision that was made by the Tribunal at a hearing of two applications, one for guardianship and one for administration.
The represented person is a young man who was injured in a motor vehicle accident some months prior to the hearing. As a result of the accident he suffered multiple injuries including several fractures and a significant brain injury. Prior to the accident, the represented person lived with his partner in a house they were jointly purchasing. He is currently an in‑patient in hospital with no known discharge date.

Evidence provided to the Tribunal prior to the hearing

The following written submissions were provided to the Tribunal prior to the hearing:
•SM, the social worker, provided a written application as well as a lengthy, detailed report and accompanying documentation in which reference is made to "very severe memory impairment" and an inability to recall information after a 30‑second delay. This is said to impact on the ability of the represented person to perform any higher level cognitive tasks such as problem solving or decision‑making. Although improving in terms of independence in self‑care and home skills, the represented person is "still in a post‑traumatic amnesia and is confused. He has difficulty processing information and responding". He "needs a decision‑maker". The social worker advised that the represented person is the youngest of four siblings. His parents and siblings visit him daily. His partner, TM, visits regularly but the relationship between the partner and the family of origin is conflictual.
•Dr S, the hospital medical officer, referred to the represented person's dysphasia (speech impairment) and assessed him as incapable of making reasonable decisions in respect of any major aspect of his life.
•A submission from TM, the partner, who advised that she and the represented person have been in a committed relationship for more than four years, have been living together for some months and have bought a house together. They have a joint mortgage and she is the major beneficiary of the represented person's life insurance policy. TM advised that she had been told by the father to have no further contact with the represented person but that she continues to visit him daily. TM proposed herself as both guardian and administrator.
•A submission from KP, the father of the represented person, advised that the represented person has lost his memory of events prior to the motor vehicle accident. KP proposed himself as guardian and administrator, and advised that he objects to the idea that TM be appointed as guardian or administrator. Attached were submissions from friends of the young couple in relation to a possible planned future separation of the couple.

Hearing

The hearing was attended by TM, the partner of the represented person (partner), KP (the father), the mother, two sisters and brother of the represented person, legal representatives MF (for the father) and CC (for the partner), the mother, father, stepfather, sister and brother of the partner. SB (applicant), three representatives of the Office of the Public Advocate (OPA) and KK, the mother of the partner also attended.
All parties agreed that the represented person does not have the capacity to make reasonable decisions for himself in respect of either lifestyle or finances. The applicant advised that, given the limited cognitive improvement that had been made by the represented person since his accident, it is unlikely that he will make a full recovery and he will likely be left with long‑term significant cognitive deficits. It is thought that he will require 24‑hour care when discharged from hospital. It is not clear when he will be ready for discharge.
In response to a question from the Tribunal as to the view of the represented person in respect of where he wishes to live when discharged from the hospital, the applicant advised that, given his limited comprehension and understanding of his situation, the represented person would not be able to provide an informed view as to where and with whom he wishes to live.
MF, for the father, advised that, during the two‑month period prior to the accident, the partner and the represented person were contemplating separation. This was contested by the partner who informed the Tribunal that, although there had been some problems in the relationship, they were working on these and had no intention of separating. The applicant stated that the represented person has no memory of events up to two months prior to his accident, making it difficult for outsiders to know the quality of the relationship during that period or to obtain information from the represented person about that period.
The represented person and his partner are purchasing a home together. There was some discussion in the hearing about how, and if, the mortgage payments would continue to be paid given that the represented person is not eligible for Centrelink payments while considered to be in a relationship with his partner.
The applicant advised that, given his current circumstances, an application could be made to Centrelink for the represented person to be considered independent, possibly making him eligible for Centrelink benefits.
The Tribunal was informed that the partner pays 40% of the mortgage payments from her own funds while the represented person pays 60%. Prior to his accident, the represented person had accumulated enough in his account to continue to make his share of payments until April 2008.
MF stated that a decision about the possible sale of the property needs to be made well before April 2008, as any intention to sell would take time to implement. In addition, MF said that a tax return may need to be prepared for the last financial year for the represented person.
MF advised that the father has been making all medical and other decisions for the represented person but, because of some disharmony between the represented person's family and his partner as to where he should live and who should be able to visit him, there is a need for a formally appointed guardian to make these decisions on behalf of the represented person.
CC, for the partner, submitted that there is no current need for a guardian to be appointed while the represented person continues as a patient in hospital with no known discharge date. Further, CC advised that contact appears to be working well with all parties having opportunities to visit and spend time with the represented person. Medical decisions are being made by the father to the satisfaction of the partner.
In response to the submission from CC, the applicant advised that, although discharge may not occur for another month or two, the hospital cannot go ahead with a discharge plan until it is known where the represented person is to live after discharge.
MF explained that the represented person has weekend leave from the hospital, but the hospital will only release him to one location; in this case, the parental home. The treating team say that any change to this arrangement would be too confusing for him. Because the represented person's partner wishes to spend time alone with him and does not wish to do so at the parental home, she has arranged for him to be discharged for weekend leave each Saturday rather than on Friday evening so she can spend Friday evening with him at the hospital.
The applicant said that the hospital encourages patients to have a "significant length of time out of hospital on the weekends" but finds that the current arrangement whereby the represented person spends only one night a week out of hospital in order to allow contact between himself and his partner is not working in his best interests.
MF said that, because of the conflict between the partner and the family, as well as some conflict between the partner and some of the represented person's friends, any decision for him to move back to the home he shared with his partner could result in some restriction of access by family and friends, and this would not be in his best interests.
According to CC, the conflict between the partner and the family arose soon after the accident when the partner was told by the family to sell the jointly owned home and to have no further contact with the represented person. This was disputed by the father who said that difficulties with contact had arisen soon after the accident when the represented person was in intensive care at the hospital and visitor numbers were restricted to protect his health and wellbeing. The partner's mother informed the Tribunal that the father had advised her that he no longer wanted the partner to be a part of the represented person's life and that he wanted the family home sold. He also advised her that the partner was no longer welcome in the parents' home.
CC referred to the fact that conflict was apparent when, subsequent to the accident, the father requested from the partner repayment of a $5000 loan he and his wife had made to the represented person. The partner repaid the loan from monies she jointly held with the represented person. MF advised that the request for repayment of the loan was made because of concerns by the father that the partner intended purchasing a flat screen TV which was considered inappropriate when the young couple's income was at risk because of the accident. The brother of the represented person stated that the represented person had, in the past, expressed concerns about his partner's lack of money management skills.
There was some discussion about the quality of the relationship between the represented person and his partner who explained that they had experienced some relationship problems but were, and continue to be, in a committed relationship. There was also discussion about the quality of the relationships between the partner and the couple's friends, some of whom provided written submissions to the Tribunal describing a troubled couple relationship. CC advised that some of those friends are friends of the represented person's family and as such have never been close friends of the partner but, if appointed guardian, the partner had no intention of preventing any friend or family member from contact with the represented person.
In addition to a joint bank account used for paying day‑to‑day living expenses and a joint mortgage account, both the represented person and the partner have separate personal accounts which cannot be operated by the other.
MF proposed that the partner should not be appointed administrator of the represented person's financial affairs because, if it transpired that it was in the best interests of the represented person for the couple's home to be sold, the partner's interests in this regard would conflict with those of the represented person. CC contested this, stating that the partner's interests were similar to the represented person in that, if the property were to be sold, it would be in her interests to ensure that it sold for the best price possible as, being a part‑owner, she would also benefit from the sale.
After hearing the submissions from the parties, OPA proposed that given the level of conflict between the parties and the issues, such as the property settlement and the sale of the house in Tasmania that need to be dealt with, it is in the best interests of the represented person that an administrator, independent of the family, be appointed.
Similarly, OPA proposed that the conflict between the parties and the impact this is currently having on decision‑making suggests that a guardian independent of the family should be appointed to make decisions regarding accommodation, services and contact with others.

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) (GA Act).
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 of the GA Act 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 …"
Section 44 of the GA Act provides for who may be appointed guardian:
"(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal ‑
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible ‑
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act."
Section 64 of the GA Act provides for the appointment of an administrator. Section 64(1) states:
"(1)Subject to [s] 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under [s] 40 ‑
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate …"
Section 51 and s 70 of the GA Act provide that a guardian and an administrator must act in the best interests of the represented person and in particular s 51(2)(g) and s 70(2)(g), act in such a manner as to maintain any supportive relationships. Section 51 states:
"(1)Subject to any direction of the State Administrative Tribunal, a guardian shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if he acts as far as possible ‑
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
(3)Nothing in subsection (2)(a) shall be read as authorising a guardian to act contrary to the Legal Practice Act 2003."

Section 70 states:
"(1) An administrator shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), an administrator acts in the best interests of a represented person if he acts as far as possible ‑
(a)as an advocate for the represented person in relation to the estate;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from financial neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
(3)Nothing in subsection (2)(a) shall be read as authorising an administrator to act contrary to the Legal Practice Act 2003.
(4)Nothing in subsection (2) shall be read as restricting the functions of an administrator at common law or under any written law."
Section 13A of the Interpretation Act 1984 (WA) defines a de facto relationship as follows:
"(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between [two] persons who live together in a marriage like relationship.
(2)The following factors are indicators of whether or not a de facto relationship exists between [two] persons, but are not essential -
(a)the length of the relationship between them;
(b)whether the [two] persons have resided together;
(c)the nature and extent of common residence;
(d)whether there is, or has been, a sexual relationship between them;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f)the ownership, use and acquisition of their property (including property they own individually);
(g)the degree of mutual commitment by them to a shared life;
(h)whether they care for and support children;
(i)the reputation, and public aspects, of the relationship between them.
(3)It does not matter whether -
(a)the persons are different sexes or the same sex; or
(b)either of the persons is legally married to someone else or in another de facto relationship.
(4)A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.
(5)The de facto partner of a person (the 'first person') is the person who lives, or lived, in the de facto relationship with the first person."

Findings and reasons

Capacity

In this case, two applications for orders were 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 represented person's capacity to make reasonable judgments in relation to lifestyle and financial matters.
The Tribunal had adequate medical evidence, as well as evidence provided at the hearing, to make the following findings in this regard:
•The represented person has a severe cognitive impairment and is incapable of looking after his own health and safety. He is dependent on others for his care and is therefore a person for whom a guardianship order can be made.
•The represented person is unable, by reason of a mental disability, to make reasonable judgements in respect of matters relating to his estate and is therefore a person for whom an administration order can be made.

Need and best interests

As set out in the GA Act, the appointment of a guardian or an administrator 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.

Administration

In this case, the represented person has a jointly owned home and mortgage with his partner, a joint bank account, as well as a personal bank account. He is currently not in receipt of any income, including a Centrelink benefit. He is in need of a person with formal authority to make decisions in relation to the management of his share of the jointly owned assets and his personal assets as well as to advocate on his behalf with Centrelink in respect of receipt of an appropriate benefit. In addition, there may be outstanding tax issues to deal with.

Guardianship

Decisions are required in respect of the represented person's long‑term accommodation needs, his contact with family, friends and his partner, and in respect of services he may require on discharge from hospital into the community.
The decision about accommodation, and this is impacting on the contact decisions, is one that is being contested by the different parties. Unfortunately, the competing interests have already impacted on the wellbeing of the represented person in that, because of the difficulties associated with contact between him and his partner, he is spending more time than necessary in hospital rather than out on weekend leave.
Decisions about services, and for that matter, discharge planning, cannot be made until the accommodation decision has been resolved.
There is also the matter of the jointly owned home. It is clear from the evidence before the Tribunal that decisions will need to be made about whether or not to sell the home as it is unlikely that the partner will be in a financial position to make the mortgage payments on her own once the represented person's savings are depleted.
All of these decisions require a decision‑maker who, after analysing the options objectively and taking into account the needs of the represented person without their own needs impacting on the decision to be made, can make a decision in the best interests of the represented person. The Tribunal finds that this supports the appointment of an independent decision‑maker.
Section 119 of the GA Act defines who can make medical decisions for a person deemed incapable of making these for himself. In this case, the medical decisions are currently being made by the father with the agreement of, but to the exclusion of, the partner who sits higher on the hierarchy of persons in s 119.
The Tribunal heard evidence that the represented person and the partner have been in a relationship for several years and had been cohabiting in a jointly owned home for some months prior to the accident. The Tribunal is satisfied that the partner, in accordance with a de facto partner relationship as defined in the Interpretation Act, sits higher in the hierarchy of s 119 than the father who, without a formal order, does not have the authority to consent to medical treatment on behalf of the represented person. In these circumstances, the Tribunal finds that the appointment of a guardian is necessary to formalise the medical decision‑making process.
The GA Act, s 70(2)(g) and s 51(2)(g), places some emphasis on the maintenance of supportive relationships of the represented person. In this case, the Tribunal was provided with evidence of significant conflict between the partner and the family of origin of the represented person to the point that they appear to avoid contact with one another. Contact with the represented person is managed in a way that supports that avoidance. The Tribunal finds that the appointment of either a family member or the partner in the roles of guardian and/or administrator is likely to compromise the relationships between the represented person and those parties.

Wishes of the represented person

While the Tribunal endeavours to take into account, where appropriate, the wishes of the represented person, it is not always possible to do so. In this case, it was difficult for the Tribunal to ascertain the wishes of the represented person who did not attend the hearing and is reported by the social worker to be "confused" and to have "difficulty in processing information and responding".
In endeavouring to ascertain his wishes, the Tribunal is guided by the previous actions of the represented person such as the fact that he nominated both his partner and his father as beneficiaries of his life insurance policy, he is in a long‑term relationship with his partner with whom he jointly owns property, and with whom he has a joint bank account and mortgage.
It would appear from this evidence that the represented person has strong, committed relationships with both his partner and his family of origin and, if able to express a view, would be likely to indicate that he wants this to continue. The Tribunal takes this into account in making its decision and finds that an appointment independent of the family and partner is likely to support this process.

Decision

After considering all the evidence available prior to and at the hearing, the Tribunal is satisfied that the represented person is a person for whom orders can be made. The Tribunal finds that it is in the represented person's best interests that both guardianship and administration orders be made.
The Tribunal further finds that, in order to preserve, as far as possible, the significant and supportive relationships the represented person has with his partner and family of origin, appointments independent of those parties is preferable. That being said, the Tribunal finds that it is in the represented person's best interests that the medical decision‑making status quo remain and makes a formal appointment accordingly.

Orders

The Tribunal made the following orders:
1.The Public Advocate is appointed to make decisions in respect of accommodation, contact and services.
2.The father is appointed to make decisions in respect of treatment and health care.
3.The Public Trustee is appointed plenary administrator.
4.These appointments are to be reviewed in two years.

I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER