Guardianship - Administration - Meaning of 'mental disability' - Whether represented person has a 'mental disability' - Impairment or limitation in represented person's intellectual skills and cognitive functioning
Guardianship - Administration - Whether represented person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate
Legislation:
Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 4(3)(d), s 17A, s 17A(1), s 43(1), s 43(1)(b), s 64, s 64(1), s 64(1)(a), s 68
Result:
Public Trustee appointed plenary administrator Enduring power of attorney revoked
FY has applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for the review of a decision made by a single member of the Tribunal on 21 June 2019 (Review Application).
In that decision, the learned Member declared that FY was unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate, and was in need of an administrator of her estate. The learned Member made a number of orders, including an order appointing the Public Trustee as the plenary administrator of FY's estate with all the powers and duties conferred by the GA Act, and with authority to expend up to a total amount of $500 per annum on gifts on behalf of FY, and an order requiring a review of the administration order by 20 June 2021.
FY made the Review Application because she considers herself able to manage her own finances, wants control of her own finances, and is of the view that she has successfully managed her own finances in the past. FY proposed that the Tribunal 'can check a year later if I am doing ok'. FY also contended, in the alternative, that if the Tribunal were of the view that an administration order should be made, then her daughter, IY, should be appointed the administrator of her estate. In the course of the hearing on 21 June 2019, IY had expressed her willingness to act as…
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.
Continue reading FY
Sign in free to access the full text
Details
AGLC
FY [2019] WASAT 118
Case
[2019] WASAT 118
Decision Date
CaseChat Overview and Summary
This case involves a review by the State Administrative Tribunal of a decision to appoint an administrator for FY's estate under the Guardianship and Administration Act 2000 (WA). The Tribunal was required to determine whether FY is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate, and whether she is in need of an administrator. FY is a 41-year-old woman with a history of trauma, limited education, and serious ongoing medical conditions. She has experienced significant difficulties in managing her finances and has a large debt to Centrelink and the Australian Taxation Office.
The legal issues before the Tribunal were whether FY has a mental disability within the meaning of the Guardianship and Administration Act 2000 (WA) and, if so, whether she is unable, by reason of that disability, to make reasonable judgments in respect of matters relating to her estate. The Tribunal had to consider the evidence presented, including reports from medical professionals and FY's case manager, as well as FY's own testimony. The Tribunal's task was to determine whether the evidence established that FY is unable to make reasonable judgments in respect of matters relating to her estate, and if so, whether she is in need of an administrator.
The Tribunal found that the evidence established that FY is unable to make reasonable judgments in respect of matters relating to her estate. The Tribunal was satisfied that FY has difficulties with financial decision-making, problem-solving, and organisation, which are exacerbated by her illiteracy and limited education. The evidence also showed that FY does not seek advice when she is unsure about decisions and has signed legal documents without fully understanding them. The Tribunal concluded that FY's difficulties in managing her finances and her vulnerability to exploitation justified the appointment of an administrator for her estate.
The orders of the Tribunal were that the decision under review be affirmed and that the Public Trustee be appointed as FY's administrator. The Tribunal found that FY is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate, and that she is in need of an administrator. The Tribunal's decision was based on the evidence presented, which demonstrated FY's difficulties in managing her finances and her vulnerability to exploitation.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the reasons set out below, we concluded that the decision under review should be affirmed. We made an order to that effect on 18 October 2019, and indicated that we would publish our reasons for that decision shortly thereafter. These are our reasons for the order we made.FY's background and general circumstances FY is a 41-year-old woman who was born in an African country. She experienced trauma during the civil war in that country and immigrated to Australia in the early 2000s. Quite apart from the stress of those experiences, she has experienced the deaths of several close family members, and has also experienced domestic violence in her close relationships. In addition, FY suffers from a very serious, ongoing medical condition. It does not affect her cognitive functioning, but requires ongoing medication and monitoring, and the support of service providers in allied health areas. FY is divorced, with three children. Her eldest daughter, IY, is in her early 20s and has a young child of her own. In addition, FY has two younger children, a son who is in primary school and a daughter not yet of school age. FY also has at least one sibling: a married brother who lives in Perth. It appears that FY has had very limited education. She is largely illiterate. She is able to speak English, but it is her second language. A friend accompanied her to the hearing of the Review Application to provide support, assist FY to understand the proceedings, and to assist her to be understood. (It was not suggested that FY required the assistance of an interpreter, and we were satisfied that she understood the proceedings to the extent of her ability to do so). FY is presently unemployed and her only income is from fortnightly Centrelink payments. She has a large debt to Centrelink, and, until the Public Trustee was appointed as her administrator earlier this year, she also owed a very large sum to the Australian Taxation Office (ATO). The Public Trustee has since successfully negotiated the settlement of the latter debt on FY's behalf. The nature of the review Section 17A(1) of the GA Act permits any party who is aggrieved by a determination made by the Tribunal consisting of one member, to request the President of the Tribunal to arrange for a full Tribunal to review the determination. As the Tribunal is exercising its review jurisdiction, the hearing of the Review Application was conducted as a hearing de novo. Consequently, the hearing was not confined to the matters that were before the Tribunal at first instance but involved the consideration of new material including evidence the Tribunal received in the hearing of the Review Application.[1] [1] State Administrative Tribunal Act 2004 (WA) (SAT Act) s 27(1). The purpose of a review is to produce the correct and preferable decision at the time of the decision on the review.[2] [2] SAT Act s 27(2). The issue for the Tribunal on the review is whether an administrator should be appointed in respect of FY's estate, which requires that the Tribunal be satisfied as to the matters set out in s 64(1) of the GA Act. That subsection provides:(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 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, the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint (c)a person to be the administrator; or(d)persons to be joint administrators,as the case may require, of the estate of the person in respect of whom the application is made.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
DR J
We turn, first, to explain why we were satisfied that FY is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.FY is unable to make reasonable judgments in respect of her estate We were satisfied, and we find, that the evidence established that FY is unable to make reasonable judgments in respect of matters relating to her estate. The basis for that finding is as follows. The report of Dr BP, which we have quoted above, referred to the difficulties FY demonstrated in dealing with financial issues and problem solving, other than for very simple matters, such as knowing her income and the cost of everyday items. In addition, IB (who has known FY and worked with her over several years) was able to give more recent, practical examples, of the difficulties FY has experienced with financial decision making. In her report dated 7 March 2019, IB indicated that:[28]FY does not ask for advice if she is unsure about any decisions, and signs legal documents … even though she is illiterate and does not necessarily trust all the [information] the other parties provide to her. I had … educated her on NOT signing any documents that she does not understand or has concerns that the person asking her to sign may not be giving her full or accurate [information]. I have advised her on options where she can gain impartial and correct advice … . However FY has not taken this advice on board – unsure if this is because she does not fully understand or if she feels pressured into making such decisions by the other party. FY has also stated that she sometimes finds it difficult to 'think' and remember things.[28] Additional report of IB attached to the application to appoint a guardian or administrator (7 March 2019) 4. In her oral evidence, IB indicated that while she had the greatest contact with FY in 2015/2016, she has had more recent contact with FY since the end of 2018 or the beginning of 2019. She indicated that:… some of the financial concerns that were of a worry back in 2015/2016 hadn't really gone away when I met her again earlier this year and that's what prompted me and also concerned she's extremely vulnerable to exploitation as well[.][29][29] ts 20, 25 September 2019. IB's evidence was that the matters she had observed which led her to think that there was a problem with FY making reasonable judgments in respect of her estate were:… a number of issues … difficulties with filling in paperwork, for example, with Centrelink, Taxation Department and so on, because partly due to her illiteracy, but also she seems to have difficulty with appropriate help seeking and we had supported her through the neuropsychologist to complete some testing. … I think she really just has difficulty keeping organised, understanding how to be organised … . There's - there was a lack of organisation for her and oversight about where all her bills were. She has, to a certain extent actually quite a good memory in terms of retaining what she needs to deal with, but it does become [overwhelming] because she's unable to write things down to really keep on track with all her different bills, debts and so on. … I think the problem is her lack of literacy and her inability to know when to ask for help and say 'I can't do this. I need someone to help me'[.][30][30] ts 21, 25 September 2019.