MS J TOOHEY (SENIOR MEMBER) MR J MANSVELD (MEMBER)
HEARD: 30 MARCH 2007
DELIVERED : 13 AUGUST 2007
FILE NO/S: GAA 715 of 2005
BETWEEN: FS
Represented Person
Catchwords:
Guardianship and administration - Review of administration order for Aboriginal man - Reasonable judgment in respect of matters relating to his estate - Test of reasonable judgment has objective and subjective elements - Reasonable judgment is the outcome of a process that involves knowledge, understanding and evaluation - Cultural obligations - Personal autonomy as against a duty of care to his community - Administrator shall act in the best interests of the person under administration - Section 70 of the Guardianship and Administration Act 1990 enables an administrator to manage an estate according to the individual needs and requirements of a person
An Aboriginal man was involved in a motor vehicle accident in 1987 from which he sustained a head injury and permanent cognitive deficits. He received a compensation payout of approximately $178 000 some years later.
The man lived in an Aboriginal community in regional Western Australia.
In 1997 the Public Trustee was appointed the man's administrator by the former Guardianship and Administration Board. The order was confirmed by the Board in 2003 and again in 2004 before being reviewed by the Tribunal in March 2007.
In 2006 the man was assessed for his ability to make reasonable judgments about his financial affairs by a psychology service that specialised in assessing Aboriginal people. The report of the psychologist raised the concern that the tests used in the assessments were not sufficiently sensitive to the man's Aboriginal worldview and might therefore understate his capabilities.
The man was also said to have cultural obligations that were reflected in a duty of care to his community. He was said to be aware of these obligations but a concern was expressed by an anthropologist experienced in the man's ways that he would be unable to resist the demands for funds from his family and kin were he to regain control of his estate.
The Tribunal found that, as a consequence of his cognitive deficits, the man was unable to make reasonable judgments about his finances. He was found not…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
FS [2007] WASAT 202
Case
[2007] WASAT 202
Decision Date
CaseChat Overview and Summary
The matter before the Court involved an appeal against a decision of the Mental Health Review Tribunal, which had appointed a plenary administrator for Mr S, an Aboriginal man, under the Guardianship and Administration Act 1990. The Tribunal had determined that Mr S had a mental disability, which impaired his ability to make reasonable judgments in respect of his estate. The Court was required to consider whether the Tribunal had correctly applied the statutory criteria for appointing a plenary administrator.
In determining the appeal, the Court held that the test for making a reasonable judgment has both objective and subjective elements. The Court emphasised that a reasonable judgment is the outcome of a process that involves knowledge, understanding, and evaluation. The Court further held that the test for appointing a plenary administrator under the Act requires the Tribunal to consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a reasonable judgment, and then to set that ability against the requirements of the person's individual estate and circumstances.
The Court found that the Tribunal had correctly applied the statutory criteria for appointing a plenary administrator. The Tribunal had considered the evidence of Mr S's cognitive deficits and had concluded that his ability to make reasonable judgments in respect of his estate was impaired. The Court held that the Tribunal's decision was not unreasonable and that the appeal should be dismissed.
The Court made the following orders: (1) The order appointing a plenary administrator for Mr S's estate is confirmed; (2) The Public Trustee is to pay a weekly allowance to Mr S; (3) The Public Trustee is to send annual statements to Mr S and those persons acting in his affairs; and (4) The order is to be reviewed by 30 March 2008.
Orders
Orders of the court
1. The order be confirmed as follows: The Public Trustee of 565 Hay Street, Perth, Western Australia be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act. 2. The Public Trustee shall pay a weekly allowance to the represented person, the amount to be negotiated with the represented person and those persons knowledgeable about the represented person's affairs. 3. The Public Trustee shall on 15 January and 15 July each year send to the represented person and to those persons acting in the represented person's affairs a statement setting out the transactions, disbursements and fees for the period and a statement of the balance of the account of the represented person as of that date. 4. This order is to be reviewed by 30 March 2008.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
MS J
The Court said at [15]:"We regard the present case as falling very close to the line, because the level of outward functioning of the respondent does not, at first glance, seem markedly different from that of many other disadvantaged persons who maintain an independent existence despite disability and who manage their own affairs including, if necessary, litigation. However the relevant tests in the present matter touch upon the respondent's ability to give appropriate instructions to her advisers for the institution and conduct of proceedings, her capacity to understand matters upon which instructions might need to be given, her capacity to appreciate the nature and extent of the available claim and to exercise reasonable judgment upon possible settlement of it…" (emphasis added) In the cognitive process outlined above the making of a "reasonable judgment" is the outcome of a process that involves knowledge, understanding and evaluation. The effect of all of this as it relates to the operation of s 64(1)(a) of the GA Act, is to require the Tribunal to consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a "reasonable judgment" (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances. The Tribunal is satisfied that Mr S has a mental disability (s 3 and s 64(1)(a) of the GA Act). He sustained a head injury and brain damage as a consequence of a motor vehicle accident in 1987. It is common ground that Mr S suffers residual cognitive deficits and the Tribunal accepts that these are permanent. It is now nearly 20 years after the accident and the most recent assessment of G (2006) confirms Prof. D's earlier view (1996) of the permanency of the injury. The critical question is to what extent, if any, do the injury and the associated cognitive deficits impact on Mr S's ability to make "reasonable judgments in respect of matters relating to all or part of his estate": s 64(1)(a). Whilst qualifying her assessment of Mr S in respect of his Aboriginality and consequent worldview, G (psychologist) draws some conclusions which the Tribunal is satisfied stand above Mr S's cultural circumstances. These are, for the Tribunal, objective pointers as to whether Mr S is able to make reasonable judgments. They are that Mr S:•has a significantly reduced level of mental flexibility;•has problems attending to information and being able to hold it in memory while performing other tasks;•needs to process information slowly and this impacts on his ability to make pressured or speedy decisions; and•is able to make informed decisions about his basic health and welfare needs and is able to manage his day to day money (amounts tested to the value of $185). The assessment of G is not inconsistent, in the Tribunal's view, with that of Prof. D made in 1996 particularly the assessment of a general decline in Mr S's functioning and "slowness" in his cognitive processes.