GM
[2018] WASAT 71
•31 JULY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: GM [2018] WASAT 71
MEMBER: SENIOR MEMBER J MANSVELD
HEARD: 29 MARCH 2018 AND 29 MAY 2018
DELIVERED : 31 JULY 2018
FILE NO/S: GAA 72 of 2018
MATTER: GM
Represented Person
Catchwords:
Guardianship and administration Presumption of capacity Mild intellectual impairment Ability to make reasonable judgments In need of oversight in the interests of his own health and safety Influence of others Trust distributions
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 51, s 64, s 68, s 69, s 70, s 84
Result:
Applications for making of guardianship and administration orders dismissed
Category: B
Representation:
Counsel:
| Represented Person | : | Ms Johnson acting as Agent |
Solicitors:
| Represented Person | : | People with Disabilities (PWD) |
Case(s) referred to in decision(s):
GC and PC [2014] WASAT 10
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
GM is 57 years of age. In the past he has been diagnosed with a mild intellectual disability and he is legally blind. GM has been registered with the Disability Services Commission (now Disability Services) for many years.
GM is an indigenous man.
GM is provided with support services through Disability Services funding. From later this year he will become a participant in the National Disability Insurance Scheme (NDIS).
One of the service providers is the agency I will refer to as agency A. BC, a coordinator with agency A states that GM receives seven hours of support from the agency for in-home support to maintain his living and two hours a week to cover a range of activities and events in the community.
Two other support agencies are mentioned in the documents.
GM is in supported employment.
Agency A has made applications for the appointment of a guardian for GM and an administrator of his estate.
These applications are made under the Guardianship and Administration Act 1990 (WA) (GA Act).
The applications were heard over two hearings, on 29 March 2018 and 29 May 2018. The hearing on 29 March was adjourned to enable the Tribunal to obtain information about GM's entitlements under trust arrangements I will refer to as Trust X and Trust Y.
Apart from GM there were a number of people who attended the hearings. Some attended one hearing and others attended both hearings.
These people are:
•BC agency A
•AG GM's current coordinator at agency A
•VT Disability Services, former Local Coordinator
•JD supporter and friend (and mentor for TD)
•TD friend and former partner of GM
•EJ advocate for GM
•MF advocate for GM
•RM Investigator with the Office of the Public Advocate
•SK friend of GM
The decision was reserved.
Relevant legislation
The primary concern of the Tribunal is the best interests of GM: s 4(2) of the GA Act.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of GM as expressed, in whatever manner, at the time, or as gathered from his previous actions: s 4(7) of the GA Act.
GM is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for GM unless it is satisfied on the evidence that he is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect of matters relating to his person; or is in need of oversight care or control in the interests of his own health and safety or for the protection of others.
Under s 64(1)(a) of the GA Act, the Tribunal cannot consider appointing an administrator of the estate of GM unless it is satisfied on the evidence that by reason of a mental disability, he is unable to make reasonable judgments in respect of matters relating to all or any part of his estate.
Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to GM the Tribunal must further determine whether he is in need of guardianship and administration orders. If the needs of GM can be met in a manner less restrictive of his freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act
If the Tribunal decides that GM 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: s43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of GM then a plenary order should not be made. If limited guardianship and administration orders are made the orders must place the least restriction necessary on him: s 4(5) and s 4(6) of the GA Act.
The hearing on 29 March 2018
In addition to the application made by agency A, the Tribunal received the following reports for the hearing on 29 March 2018:
1.Disability Services
2.GM's General Practitioner (GP), Dr P
3.Community Care Manager, agency B
4.Local Coordinator, Disability Services
5.written submission from JD
6.written submission form VT
The applications made by agency A appear to be premised on two issues. First for guardianship, it is said that the GM has support for his medical appointments but needs clarification regarding what his GP has said to him. With regard to administration the comment is made that GM is in receipt of several land rights trusts as well as the disability support pension. He has no significant savings. He is reported to be vulnerable to financial exploitation from others especially friends and family members and he is said not to recognise the consequences of his actions.
The report from Disability Services reveals the following.
•GM has some intellectual impairment and is legally blind. The disability was diagnosed when he was just over six years of age and a psychologist then stated that GM was 'deprived both functionally and culturally' and this suggested 'only a mild degree of' impairment or 'retardation' as the term was then used. GM already had significant issues with his vision and it was recommended he attend the Blind School.
•GM commenced residing in his current public housing home in 2006. It appears he was removed from his environment about the age of five. He has received intensive assistance from about 2000. A reported difficulty in managing his finances was noted as long ago as 1992.
•Since 2012 GM has received bi-annual payments from Trust X. He also accesses Trust Y for up to $5000 annually.
•GM's family of origin live in the north of Western Australia area and he attends several meetings there each year.
•GM was previously in a relationship with TD. He has wanted to be a parent to her two daughters, R and K (not his birth children) and regards himself as such. The daughters are now 18 and 13 years of age. He regularly gives money to TD and her children which can be significant.
•GM has also freely given money to family and friends and has been glad to do so. Mention is made of loans GM has made of which he is aware they will not be repaid
The most recent individual funding plan for support services for GM commenced 6 October 2017. It describes GM as an extremely independent and friendly man who is able to express himself well. He has a very good memory. He is very friendly and trusting and will give money to people he does not know. He has little concept of finances and money and has been taken advantage of several times in the past which has been minimised with the support of a mentor. GM currently works in supported employment. He requires support to attend his GP and hospital appointments. He also requires some support with handling everyday mail, doing his banking and liaising with the Trust X and Trust Y to submit claims.
Dr P states in his report that he has known GM for 18 years and that GM has a diagnosis of intellectual disability. Although unsure about GM's ability to manage simple financial matters, Dr P assesses him as incapable in other financial and all personal decision-making. Dr P assesses GM as capable of making an enduring power of attorney but is unsure regarding his capacity to make an enduring power of guardianship.
The report from agency B states that GM is at risk financially due to his generous personality. He is said to fully understand his medical condition, goes to his GP on advice, has a constructive relationship with his GP and is fully compliant with his medication needs. GM is said to keep his accommodation tidy with the help of agency B.
In her report the current local coordinator with Disability Services states that GM is supported by agency A with daily personal activities in order for him to remain living independently. GM is said to have a close relationship with TD and 'his two daughters'. There have been occasions when GM has given large amounts of money to his family and he finds it difficult to say no. GM is reported to manage his own finances however he receives support to do so. He is said to require support making complex financial decisions and budgeting. GM is reported to be strongly opposed to the appointment of the Public Trustee as his administrator even though he has been exploited in the past and has at times run out of money for everyday expenses. The Local Coordinator submits that GM requires support for complex medical appointments to be sure he understands the content fully.
In her written submission JD says that she has known GM for four to five years through the support she provides to TD. She notes that GM is concerned as to why the applications have been made. He gives his fuel cards which he is entitled to receive through Trust X to the daughter R who has just turned 18 and has saved to purchase a car. GM does not drive. JD states that 'I have witnessed the joy, pride and love [GM] experiences when being able to give to his girls'. She states that GM does not spend his money on drugs or alcohol. JD states that GM's bills are paid through Trust X and that he has support to shop for food and the Trust also pays food bills. She supports his ongoing independence.
In her submission VT states that she has not worked with GM for about two years. She states that GM was registered with Disability Services in 1995 on the basis of congenital vision loss and an intellectual disability.
The formal support that GM received over the years has included grocery shopping, banking, bill paying, medical appointments, other shopping and appointments.
VT submits that GM is not able to manage his finances and he has had support from social trainers since 1990. He has in the past accumulated debt with numerous utility providers and retailers. Examples given by VT are that GM in the past has been banned from local DVD rental stores for non-payment of bills and he misunderstood a contract he entered into with Foxtel which led to debt collectors demanding payment.
VT states that when GM first advised her in 2012 of his interest in Trust X and Trust Y she supported him to make applications for funds. Safeguards were put in place such as retailers seeking payment direct from the Trusts.
VT states that GM is very generous with his money and is easily taken advantage of by his family and his friends. She submits that GM has a limited concept of the value of items and services and would often run out of money. GM is said not to take into account the long term effects of his decisions.
VT confirms the understanding that GM considers TD's children, R and K as his children.
VT submits that GM needs support to manage his finances.
The hearing on 29 May 2018
Further documents were received for the hearing on 29 May 2018. They were as follows:
Trust X
Direct Benefits Trust
•Non-taxable distributions 28 June 2017 $39,440 and 15 December 2017 $39,600. GM does not have an automatic right of entitlement, merely a right to be considered for a distribution.
Charitable Trust
•Distributions are made by application and are assessed for reimbursement or payment direct to a supplier.
•In the current financial year $13,779 has been requested and $12,824 paid which included Synergy, pharmacy, dental, agency B, K's tuition fees $7,091; Apple MacBook $1,899 and R's paramedic uniform $588.
Trust Y
•Allows for general assistance such as essential expenses (household bills, food and fuel, rent, vehicle purchase or repairs, whitegoods and furniture).
•GM had $6,570.01 left in the general assistance allocation which was to run out on 30 June 2018.
•All assistance is by application only.
Written Submission of BC
In her submission BC alleges unethical behaviour and conflict of interest by the staff of agency C who work with TD. It is alleged that TD exploits her relationship with GM for financial gain. It is said by BC that it can be demonstrated that TD reconnected with GM when his financial situation improved. She states the relationship ended because of verbal and physical aggression from TD which is well documented by Disability Services. Prior to the Trusts the only money available to GM was his disability support pension.
BC states that GM is still angry at agency A staff for making the guardianship and administration applications but continues to be happy with the support he is being provided through the new coordinator. She states this is made difficult by the interference from JD.
Written Submission of JD
JD alleges that agency A and Disability Services are providing poor support to GM both at the Tribunal hearing and generally.
She states that GM has recently organised finances without the help or support of any one by setting up and organising relevant departments for payments to assist his daughter, R to enter university and study to become a paramedic.
JD submits having control of his money has allowed GM to catch a plane or bus to visit his family whenever he feels the need culturally to be with them. If he was not able to do this there would be a great disadvantage to his emotional health.
JD says that personally she would like GM to receive support from an agency better qualified than agency A to supply the appropriate support for his needs.
Evidence and submissions from the hearing
In the hearing I arranged to hear form GM with only his advocates and RM from the Office of the Public Advocate present. This was to allow GM to give an account of his understanding of his financial situation without the pressure of having many people in the hearing room.
In his evidence GM states as follows (ts, 7-23, 29 May 2018):
•He receives the blind pension and also money from his work.
•He receives money from Trust X and Trust Y because his mother's people own the relevant land.
•He receives what he calls 'petrol price' which I understand to mean fuel vouchers which he gives to R. He also has access to a study payment from Trust X and he asked if R could have the benefit of the payment because she is studying to be a paramedic. GM could not say what amount was paid for K's study and says that he just signed the form. He says the same for the computer purchased for R.
•GM says that he contacts both Trust X and Trust Y if he wants something and they fill out the required form for him which he signs.
•Trust Y pays for all his groceries. Trust X pays for medical costs, education and when he goes to Port Hedland for a meeting. GM also goes on holidays.
•GM says that he does not drink alcohol.
•GM agrees that he gets two lots on money directly into his bank account, every Christmas and June. He mentioned the figure as $14,800 which increases every year but he could not remember what he received in Christmas 2017. He says he uses that money for holidays, clothes and for emergencies.
•When it was put to GM that over the last 12 months from June 2017 he has received about $79,000 in the two payments, he could not say in detail (other than what he had already said) where the money has gone. He did say it has been spent by his former coordinator at agency A, he says 'she handled all of that'. He says she took him to buy a leather couch for $8,000 and a bench for his videos. He also says that he did not know what happened to an amount of $4,000 because the former coordinator had his PIN number.
•GM says that he looks after his own finances. His rent is paid through Centrelink. He does not hand out money to anybody.
•GM states that both R and K live with foster parents. He sees himself as a 'sort of dad' to them. They don't ask for money but he might give them $100 for their birthdays. He sees the things he does for them as a father paying for his children.
•GM says that he and TD have broken up. They used to be in a relationship and have remained good friends. He, TD and SK go out together. TD and SK don't ask for money. Sometimes SK will lend him money ($20 or $40) if he hasn't had time to go to the bank.
•GM says that he does not have much money in his bank account. He does not have any term deposits. Apart from the former coordinator he is not aware of anybody else having had access to his bank account.
•GM states 'I just let things go blindly because it works that way for me'.
•G states that he wants to change service providers from agency A to another nominated agency but has to wait until the end of June when his funding plan is reviewed.
As regards the role of agency A and GM's finances, BC states as follows:
•The former coordinator would get a bill from GM (GM would disclose all his bills), and she would take him to the bank to withdraw money to pay the bill at the post office. BC refers to a file (not before the Tribunal) which contains information such as the purchase of a personal alarm from Silver Chain for $800, bills from Video Ezy, Home Chef, Harvey Norman, Target and information on holidays GM has taken. There is $283 paid to Cash Converters in December 2016 for repayment of a loan.
•The current coordinator for GM has allegedly overheard phone conversations with TD and one of her daughters which seemed to be about money with GM assuring he would do whatever was requested.
BC states that in her view the funded service hours GM receives are not sufficient for his needs. Agency A help GM with medical advocacy (they take him to appointments), community access, domestic assistance, budgeting, take him to the bank, helps him pay bills, deal with correspondence, organise holidays and general mentoring.
As regards to medical matters, BC states that agency A staff provide GM's doctor with factual information (clarification) because sometimes GM is unable to give true details. She is of the view that GM does need some assistance to understand what Dr P is asking and to understand the proposed treatments so that GM is able to choose the treatments he has. GM has a good relationship with Dr P and is compliant with his medications.
BC recounts an event (which had been raised as a concern in the hearing on 29 March 2018) where GM had had a thyroid procedure under anaesthetic and the medical advice was that he have somebody stay with him overnight but which GM said he did not need because he felt fine.
BC states that GM wants to change the support agency and is free to choose whatever agency he wants to help him. However she believes GM is quite influenced by people which she says has happened previously.
BC states that she is surprised at the amount of money GM receives and that there is no accounting for it. She submits that an administration order is definitely required.
JD states that GM spends a lot of money on taxis which he uses very regularly to get about. She describes what GM spends on taxis as 'quite astounding'. She is concerned that some taxi drivers might have taken advantage of him. Despite this JD sees the availability of taxis as a freedom for GM to do whatever he wants at the time, for example to go to his tutors, his friends or to buy DVDs and books on which he spends freely.
JD states that GM is very good at researching things. For example unless agency A helped, he himself worked out with Trust X staff the money R needed for university.
JD says that GM has in the past spoken to her about agency A. His initial concerns were related to the way he perceived the former coordinator talked to him disrespectfully. She states that GM was upset when $5,000 was removed from his bank account and sent to his friend in Queensland to arrange for a trip to Europe. JD says GM told her it was done without his permission which is denied by BC. The $5,000 was returned to GM and the trip to Europe did not go ahead.
JD denies she is coercing GM to move to the agency for whom she works. He had asked her about that agency even before agency A had become involved. She has given GM contact details and he has telephoned her supervisors.
JD states that although others might have a view that GM wastes his money she believes he has a right to waste that money. She sees any issues with Cash Converters as a thing of the past because Trust X now pays for food bills.
JD accepts there will be times when GM has spent all of his money but despite this he is never short of food or a roof over his head. According to her GM is not at risk of homelessness.
JD submits that the issue of GM's money has a moral component which is that he has had his life controlled from a very early age and the money he receives from Trust X and Trust Y has given him a freedom he has never previously had. She submits that GM is entitled to have his money be used for the joys in his life.
JD submits that this freedom is important culturally for GM because he is able to decide when he wants to go back to his country and visit family.
JD takes objection at the notion that TD and her children might be exploiting GM. She says this is far off the mark. TD's children live with a foster family who according to JD have strong Christian values. JD submits that although GM will spend money on TD's daughters he is not frivolous.
SK states that he appreciates and agrees with the comments JD has made regarding GM needing to have his freedom.
VT states that despite not having worked with GM for two years, she is of the view he needs a guardian and administrator as a safeguard; guardianship for his medical needs and administration to manage his finances.
EJ, GM's advocate states that she has had considerable contact with GM in the last four months that GM himself has initiated or followed up.
EJ is of the view that agency A acts in a somewhat paternalistic way towards GM which he struggles with because he has had that all of his life.
EJ says that GM has had long conversations with her and MF about his self-worth, his independence and his wish to provide for what he sees as his family (TD, R and K).
EJ accepts that GM receives a large sum of money and that he cannot account for all of it. She says that in the time she has known him, GM has made at least one spontaneous trip to Port Hedland which he appears to have paid for (rather than through Trust X). She says that GM made all the arrangements himself. She submits that GM values this sort of spontaneity very much and is afraid of losing it.
EJ states that GM has demonstrated that he is debt free. She has accompanied him to the office of Trust X and she believes he has quite a good understanding of the Trust and staff have assured her that there are safeguards in place for the payment of GM's bills.
EJ submits that how GM spends his discretionary funds is for him to decide. He is no different than others in the community who might not appear to have much to show for the money they receive.
As a general proposition, EJ submits that bad decisions in how a person might spend their money does not indicate a lack of capacity.
As regards agency A, EJ states that since his first contact with her agency, GM has made no secret that he wants to change service providers. This will become a lot easier to do when NDIS takes over his funding. EJ says that there appears to now be quite a deal of animosity between GM and agency A staff. She submits that with the proper support GM does not need a guardian for medical purposes.
RM from the Office of the Public Advocate states that GM's history includes what she submits as him being overly generous with his money and having a limited concept of how much he is spending.
RM submits that GM would benefit from the protection of an administration order with room for some flexibility given his abilities.
RM states that GM's medical needs are increasing and that there is some question over whether he can understand what medical practitioners put to him and whether he is simply compliant with the advice given.
RM proposes that the Public Advocate be appointed GM's guardian to make decisions around his medical needs and support services. She further proposes the Public Trustee be appointed the administrator of GM's estate.
Discussion of the issues
I have decided not to make guardianship and administration orders and have dismissed the applications.
The reasons for my decision are as follows.
The making of guardianship and administration orders can have a significant impact on a person's life.
To the extent of the authorities given to a guardian and administrator, decision-making rights are removed from a person. A person's freedom of decision-making in their personal and financial lives is therefore affected.
The GA Act is not based around supported decision-making, a model which is increasing in prominence as jurisdictions grapple with the United Nations Convention on the Rights of People with Disabilities.
The GA Act is based on a best interests model. When a guardian or administrator is appointed for a person the guardian or administrator is required to form an opinion of the person's best interests when making a decision. Sections 51 and 70 of the GA Act guide the guardian and administrator in the formation of that opinion which includes consulting with the person and taking into account, as far as is possible, their views and wishes.
However the judgment of the guardian or administrator of what is in the person's best interests prevails in decision-making under guardianship and administration orders made by the Tribunal.
It makes sense therefore that guardianship and administration orders should only be made when a finding of incapacity is made and there is no other safe and effective means by which particular decisions that need to be made for the person can be made.
This is expressed in the GA Act through the presumption of capacity in s 4(2)(2) and the requirement that the Tribunal consider whether there are less restrictive alternatives to the making of orders (s 4(2)(c) of the GA Act)
Because of the impact that guardianship and administration orders have on a person, the Full Tribunal said in GC and PC [2014] WASAT 10 at [36] that the Tribunal requires clear and cogent evidence to rebut the statutory presumption of capacity.
With all of this in mind I will first turn to the application for guardianship.
Before a guardianship appointment can be considered the Tribunal must first be able to find that GM is incapable of looking after his own health and safety, is unable to make reasonable judgments on personal matters or is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
The formal capacity evidence before the Tribunal is the assessment by the psychologist from 1966 and the report from GM's general practitioner, Dr P.
Dr P does not refer to the assessment of the psychologist and states his understanding that no cognitive assessments have been performed in respect to GM.
The opinion formed by Dr P is therefore the outcome of his clinical observations.
I must therefore conclude on the evidence that as a formal diagnosis GM has a mild intellectual impairment.
The personal issues that have come before the Tribunal through consideration of the guardianship application appear to relate to decisions about his ongoing medical treatment and decisions about which agency should be providing services under current Disability Services funding and future funding under NDIS.
GM lives alone, largely independently and with support from agency A. It appears GM's support needs are a good deal to do with his sight impairment. There is some suggestion that GM would benefit from more support hours.
On the evidence I am able to make the finding that GM is in need of oversight in the interests of his own health and safety. That is because he is unable to live wholly independently, that is without any support. Oversight of his support needs is an ongoing requirement.
In respect to GM's medical needs the evidence before the Tribunal is that he will at times need clarification of medical information and that also at times support workers will need to assist him in giving a clear history of the presenting issue to his doctor.
There is no indication this has not worked sufficiently well.
I am somewhat surprised at the opinion of Dr P in his report that GM is incapable of making reasonable decisions in relation to his medical treatment and procedures. There is no evidence before the Tribunal that when GM has been faced with a medical problem that has required treatment that his consent has not been accepted by medical practitioners (including Dr P) either in the community or in hospital.
Given this and the fact that there is no formal capacity assessment to inform Dr P's opinion, I give greater weight to what happens 'on the ground' in GM's treatment needs. In this regard he is assisted to attend medical appointments and it appears his consent is accepted.
I am therefore not able to find that GM is unable to make reasonable judgments about his medical treatment.
I apply the same reasoning in the question of whether GM can decide the agency that should provide some of his support needs. At the time of the hearing this was agency A.
The submission of some of the parties is that GM has been improperly swayed in that decision after GM indicated his wish to change service providers.
The issue of influence is a difficult one. We are all influenced by others to varying extents when forming opinions about things. We generally ask for the views of others when making important decisions.
A problem might arise when a person is overborne by another so that they do not make their decision freely. Even then, that alone is not determinative of a person's capacity to enter into a particular transaction (The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161). There are capable people in the community who have been unduly influenced by others to their detriment as successful scams demonstrate.
I am not convinced on the evidence that GM's mild intellectual impairment precludes him from arriving at a reasonable judgment about his preferred service provider. He demonstrates an ability to engage with the process involved in such a decision and is able to express his inclinations. He is entitled to enlist the assistance of others.
I am therefore not able to find that GM is unable to make reasonable judgments about the provision of his support service.
The finding I have made that GM is in need of oversight in the interests of his health and safety does not in my view lead to any need for a guardian.
I will therefore dismiss the application for the making of a guardianship order.
I will now turn to the application for the making of an administration order.
Before the appointment of an administrator can be considered, the Tribunal must first be able to find that by reason of a mental disability (the mild intellectual impairment), GM is unable to make reasonable judgments about all or any part of his estate.
GM's estate is somewhat unusual. He receives the blind pension which is not means tested and is also a beneficiary of Trust X and Trust Y.
The evidence before the Tribunal is that at least from June 2017 GM has received quite significant distributions from the Trusts. These distributions are in two forms, cash distributions to his bank account and distributions by way of applications to the relevant Trustees.
The concern raised by some of the parties is that GM is overly generous in the way he spends his money and in this way is open to being manipulated in the disposal of his money. There is also the concern that GM has in effect nothing to show for the money he receives particularly by way of, for example, savings for his future.
GM was unable to give a detailed account of how his money is spent other than for example to mention the former coordinator of agency A's intervention, the purchase of a leather lounge for $8,000, a bench for his videos, money for holidays and travelling to country and something dear to his heart, providing for the education and advancement of R and K whom he regards as his daughters.
JD adds that GM spends a lot of money on taxi fares to get himself around.
I accept that GM is at some disadvantage given his sight impairment. I also accept that GM is at some disadvantage given that he is a 57yearold man who for the bulk of his life has only had very limited funds at his disposal and it is only in recent years that substantial funds have become available.
Being a generous person and putting other people's needs before your own is not evidence of incapacity. As already mentioned being influenced by others is not of itself determinative of incapacity.
I am persuaded by the submissions put by GM and his advocates. GM put it best when he said that he just lets thing go because it works that way for him.
In my view the context of that statement is a person who has suffered great social, cultural and functional deprivation and who by means of being a beneficiary in native title trusts has been able to achieve a degree of freedom in his life which he could not have imagined.
It is absolutely understandable in those circumstances that GM greatly values that freedom and uses it to the fullest. In doing so he spends the funds made available to him.
That no doubt exposes him to some risk of being taken advantage of, for example, JD mentions her concerns about certain taxi drivers.
However, given what I have found I am not convinced that the way GM spends his money can be characterised as him making unreasonable judgments because of the effects of his mild intellectual impairment.
It should also be said that in terms of the Trust moneys that are available to GM, it would only be the direct payments to his bank account by Trust X which could be captured by an administration order. These are not guaranteed distributions.
The other distributions are only made if the Trustees of the Trusts approve the expenditure and these are therefore not under GM's control.
There is no indication that the Trustees of the Trusts take the view that GM is incompetent to make applications to the Trusts.
In all the circumstances, I am not satisfied that the presumption of capacity has been displaced.
I will therefore dismiss the application for the making of an administration order.
I should add that it would help GM if someone could assist him keep some record of his spending so that he has some idea about what funds he has left to spend at any one time.
Orders
1.The administration application is dismissed.
2.The guardianship application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, SENIOR MEMBER
31 JULY 2018
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