GH
[2020] WASAT 48
•17 APRIL 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: GH [2020] WASAT 48
MEMBER: MR J MANSVELD, MEMBER
HEARD: 9 MARCH 2020
DELIVERED : 17 APRIL 2020
PUBLISHED : 6 MAY 2020
FILE NO/S: GAA 565 of 2020
GH
Represented Person
Catchwords:
Guardianship and administration orders - Capacity - Need for a guardian - Need for an administrator - Suitability to be appointed guardian and administrator - Vulnerability of represented person
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Guardianship and Administration Act 1990 (WA), s 4, s 17(A), Pt 5, Pt 6, Pt 7
Result:
Public Advocate appointed guardian
Public Trustee appointed administrator
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
The decision in this matter was delivered on 17 April 2020. The following reasons have been edited from the transcript to, where necessary anonymise the names of the parties and to correct minor errors and omissions.
History
GH is 46 years of age. She has been diagnosed with an intellectual disability and previously with anxiety and depression.
On 16 December 2019 the Tribunal appointed KL as her plenary administrator with a gifting authority of $250 per annum. He was also appointed as her limited guardian to make decisions concerning her accommodation needs, treatment decisions, with whom she should have contact and the extent of that contact, the services to which she should have access and as her next friend for matters other than those relating to her estate (2019 orders).
The guardianship and administration orders were made pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act) and were set to be reviewed by December 2024.
The following relevant matters were obtained from the voice recording of the hearing of 16 December 2019.
•The primary trigger for the application was a lease dispute. GH had been in a private rental and had made a claim in the Magistrates Court for repayment of rent allegedly overcharged by her then landlord (tenancy matter).
•An assessment by a clinical psychologist in October 2019 (psychology assessment) found GH's IQ to be 64 which is consistent with a diagnosis of intellectual disability. GH was considered to lack capacity to be able to instruct her lawyer in the tenancy matter.
•KL was described as GH's stepfather and friend. He expressed concern that GH pretends that she understands things put to her when in fact she does not including her medical matters. He did not realise that GH had an intellectual disability prior to the assessment of the clinical psychologist.
•KL wanted to assist GH to deal with the debt she had accumulated which amounted at the time to about $10,000 to $12,000 including a finance company loan, debts to a pawn broker and various jewellery shops. KL is the guarantor for the finance company loan.
•KL was managing GH's budget. She was in receipt of the newstart allowance and KL had organised an application for the disability support pension.
•GH is married to a citizen of another country. She had visited him and wished to start a life with her husband. KL knows the husband and is fond of him. He believes that things will change for GH when she begins living with her husband.
•KL said that he wants to protect GH as she is easily exploited and her family has let her down over the years. KL had been in a previous relationship with GH's mother. He currently looks after GH's father who has dementia. GH lives with KL and her father.
•GH said that she is able to talk only to KL about matters that concern her. She would feel lost without him and does not trust others because of her previous experiences of abuse and exploitation.
The current application
On 10 February 2020 the Department of Justice (Corrective Services) (applicant) applied for review of the 2019 orders (review application).
The applicant states that KL has been declared a Dangerous Sexual Offender (DSO) by the Supreme Court of Western Australia (Court).
The applicant submits that it has concerns with KL's appointment as guardian and administrator for GH given the declaration that he is a DSO for which the Court considers him a serious danger to the community and has made him subject to the Dangerous Sexual Offenders Act 2006 (WA).
The applicant states that as guardian and administrator for GH, KL may come into unsupervised contact with those of GH's children who are under 18 years of age.
The applicant seeks revocation of KL's appointment as GH's guardian and administrator and the appointment of the Public Advocate and Public Trustee respectively.
The application for review of the 2019 orders was referred to the Public Advocate for investigation and report.
KL's supervision order
KL is under a supervision order which is due for review in 2023. When the supervision order was made in 2013, KL was in prison after having been convicted for sexual offences against children.
The basis of the conditions in the supervision order are the regulation of any contact that KL might have with children under the age of 18 years.
The psychology assessment
It is relevantly noted that the clinical psychologist stated in his report that GH's capacity to understand social rules and make good social judgment is the weakest of her intellectual disabilities.
Relevant legislation
Guardianship and administration matters are considered under Pt 5, Pt 6 and Pt 7 of the GA Act. The principles to be observed by the Tribunal are set out in s 4 of the GA Act.
The primary concern of the Tribunal is the best interests of GH.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes GH has expressed, in whatever manner at the time, or as gathered from her previous actions.
GH is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal.
The Tribunal cannot consider appointing a guardian for GH unless it is satisfied on the evidence that she 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.
The Tribunal cannot consider appointing an administrator of the estate of GH unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
Mental disability is defined in the GA Act to include an intellectual disability, psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to GH, the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of GH can be met in a manner less restrictive of her freedom of decision and action then orders should not be made.
If the Tribunal decides that GH is in need of guardianship and administration orders it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of GH, a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on GH.
When reviewing guardianship and administration orders, the Tribunal can relevantly confirm the orders, revoke the orders and substitute new orders for them or amend the orders.
KLevidence and submissions
KL considers that his supervision order is irrelevant to the Tribunal proceedings concerning the need for guardianship and administration orders. The basis upon which KL makes this submission is threefold.
First, the original trigger for the applications in 2019 was the need to progress the tenancy matter given that GH is unable to instruct her lawyer. This is a financial matter.
Secondly, GH's children under 18 years of age are in care and protection, and live interstate. He has no contact with GH's children.
Thirdly, KL says that his actions as guardian and administrator have significantly assisted GH.
KL states that he treats GH as his daughter.
KL states that GH has stable accommodation living with him in the property he rents with his spouse. The property consists of one bedroom and a sleep-out. He and his spouse have the bedroom and GH's father has the sleep-out. GH uses the lounge room as her bedroom. Currently this is considered a permanent arrangement.
KL states that he has markedly improved GH's financial situation. She is now debt free after he secured an income tax refund of $4,650 (GH had not filed a tax return for 10 years) and he successfully progressed GH's application for a disability support pension for which she received a back-payment of $4,000.
The tenancy matter is at the pre-trial conference stage. The claim is for $65,000 for rent allegedly overpaid by GH.
KL says that he manages GH's income and provides her with an allowance of $250 per fortnight which he needs to monitor in an ongoing way.
KL states that he understands his supervision order. He has not breached the supervision order since it was last made in 2013. He has very strict reporting requirements. He says that if he breached his supervision order, he would be letting himself down. He maintains his innocence of the criminal charges that led to the supervision order but accepts that the supervision order is in place. He considers the applicant manipulates his situation so that he is always seen in a negative light. He is angry that the applicant disclosed the supervision order by making the review application.
KL submits that it is in GH's best interests that he remain as guardian and administrator. If this does not happen he says that GH will become depressed and give up.
GHevidence and submissions
GH says that she married her husband in August 2018. It was the culmination of an online relationship. She has visited the country in which he lives a number of times to meet him and his family. GH's husband has applied for permanent residency in Australia however has been rejected three times. She hopes to travel to his country soon.
GH states that she has four children: a son who lives in Western Australia aged 26, two daughters aged 17 and 14 and a son aged 15. The three youngest children are in care until they reach 18 years of age and currently live in another State. GH used to visit them twice a year in June and December and stay for a week. This stopped over two years ago after she says she was abused by her children. In late 2018 and early 2019 she was contacted by her 17-year-old daughter and they are in ongoing phone contact. GH's son has two children whom she does not see as she is not currently in contact with him.
GH says that KL is not involved in the phone contact she has with her daughter.
GH states that she does not care about KL's past. She wants him to remain as her guardian and administrator as she does not trust anyone else. If that is not possible then she would want the 2019 order revoked.
Public Advocateevidence and submissions
The investigator from the Public Advocate was able to speak only with KL, who reported the improvement in GH's finances consistent with his evidence to the Tribunal. In addition, KL reported that he has made an application to the Commonwealth Redress Scheme on behalf of GH.
The investigator states that KL told her that he monitors GH's telephone contact with her children. KL's response to this is that he is in the lounge room when GH has phone contact with her daughter. He says he does not interfere and that GH would terminate any calls if they became abusive.
KL reported to the investigator that GH does not work and has no structured daytime activities. Occasionally she will go out with KL's wife and her friends. GH is not connected to any support services as yet. KL considers this will be looked into when GH returns from her visit to her husband, should that be allowed to occur. GH can afford to travel because of the funds received from the back payment of her Centrelink pension.
KL told the investigator that GH trusts him and no one else; he knows her past and history. He believes that the applicant is trying to undermine his authority under the Tribunal orders for reasons that are not relevant to the Tribunal. His appointment as guardian and administrator has not in his view breached his supervision order. He maintains his innocence of the criminal charges for which he was found guilty.
Discussion of the issues
It is common ground that GH is a person for whom guardianship and administration orders can be made. GH does not dispute that she needs significant assistance in her daily life and decisionmaking.
GH has an intellectual disability as assessed by a clinical psychologist.
Given her history of exposure to abuse and exploitation, and the impact of the intellectual disability on her reasoning abilities, I am satisfied that GH is incapable of looking after her own health and safety, is in need of oversight and care in the interests of own health and safety and is unable to make reasonable judgments concerning personal and financial matters.
The question that follows is whether GH remains in need of guardianship and administration orders. I note that the initial basis upon which the application was made by KL in 2019 was the need to progress the tenancy matter. It was only in the course of the hearing in December 2019 that further financial and personal issues were raised culminating in the 2019 orders.
None of the parties from the December 2019 hearing sought review of the orders pursuant to s 17A of the GA Act, suggesting that the orders were considered necessary by the parties then involved.
I am satisfied that GH continues to be in need of the protection afforded by guardianship and administration orders. She has significant vulnerabilities.
Before I convey the authorities that are to be included in the orders I should first address who should be appointed.
Both GH and KL submit that KL should remain as guardian and administrator. KL considers his criminal record and the ongoing supervision order to be irrelevant to the Tribunal's deliberations. He points further to the assistance he has provided GH in particular, in relation to her finances.
I am not persuaded by KL's submission for the following reasons.
Even if I could accept (which I do not) the contention of KL that he did not disclose his criminal history because the only matter he initially brought to the Tribunal was financial in nature (tenancy issue), by his own reasoning once guardianship (personal) matters were addressed by the Member in December 2019 it was materially relevant for KL to alert the Member to the conviction and supervision order as a factor in determining his suitability.
That he did not do so was a serious omission which however might be argued is consistent with his ongoing position that he is innocent of the criminal charges for which he was found guilty.
The criminal charges for which KL was found guilty involved children under the age of 18 years. What is particularly significant and which in my view bears on his suitability is that the offences were committed against those in a position of great vulnerability of whom he took advantage.
The assessment of the clinical psychologist is highly relevant in my view because it was found that GH's capacity to understand social rules and make good social judgment is the weakest of her intellectual disabilities. I am satisfied that GH is very dependent upon KL in a situation of risk where she lacks the capacity both intellectually and psychologically to protect her health and safety.
Given her circumstances and the circumstances of KL, that risk needs to be monitored, scrutinised and managed. GH is unable to do that herself in her own best interests.
I therefore find that KL is not suitable to remain as GH's guardian and administrator and that I should appoint the Public Advocate and Public Trustee accordingly.
I revoke the 2019 orders and substitute the following orders.
The Public Advocate is appointed GH's limited guardian to determine her accommodation needs, the services to which she should have access, her medical treatment, the persons with whom she should have contact and the extent of that contact and with the next friend function to, if necessary, assist in enforcing contact decisions.
The Public Trustee is appointed GH's plenary administrator with a gifting authority of $250 per annum.
The orders will be reviewed in five years.
Orders
The Tribunal orders:
The administration order dated 16 December 2019 is revoked and substituted with an order in the following terms:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is authorised to expend up to a total amount of $250.00 per annum on gifts on behalf of the represented person.
3.The administration order is to be reviewed by 17 April 2025.
The guardianship order dated 16 December 2019 is revoked and substituted with an order in the following terms:
4.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
a)To decide where the represented person is to live, whether permanently or temporarily;
b)To decide with whom the represented person is to live;
c)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
d)To determine what contact, if any, the represented person should have with others and the extent of that contact;
e)To determine the services to which the represented person should have access; and
f)As the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person.
5.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
6.The guardianship order is to be reviewed by 17 April 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (MEMBER)
7 MAY 2020
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