GRH - [2006] WASAT 66

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: GRH [2006] WASAT 66

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 14 NOVEMBER 2005

DELIVERED : 20 MARCH 2006

FILE NO/S: GAA 1636 of 2005
GAA 1637 of 2005

BETWEEN: GRH
Represented Person

Catchwords:

Guardianship and Administration-Periodic review - Is in need of a guardian - Is in need of an administrator - Needs of the person - Less restrictive alternative to the making of an order

Legislation:

Guardianship and Administration Act 1990 (WA) s 3, s 4, s 4(2)(c), s 4(2)(d), s 43, s 43(1)(b), s 43(1)(c), s 44, s 64, s 64(1)(a), s 64(1)(b), s 68, s 90

Result:

The Public Advocate is reappointed limited guardian and the Public Trustee is reappointed plenary administrator

Category: B

Representation:

Counsel:

Represented Person : Self-represented

Solicitors:

Represented Person : Self-represented

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

Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA)

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal’s decision

In November 2004, the former Guardianship and Administration Board (the Board) appointed the Public Advocate as the limited guardian for GRH and the Public Trustee as his plenary administrator. The Public Advocate was given the function of deciding where, and with whom, GRH should live. The orders were made for 12 months.
In January 2005 the State Administrative Tribunal (the Tribunal) took over most of the functions of the Board and in November 2005 heard the periodic reviews of the guardianship and administration orders for GRH.
GRH was a 58 year old man who suffered from mental and physical disabilities as a consequence of long-term alcohol abuse. He moved to a psychiatric hostel after it was found he could not live independently in his rented accommodation.
He met his partner whilst living in the hostel and they wanted to marry and move into independent accommodation. GRH's daughter, who lived in Victoria, wanted her father to live near to her.
GRH was of the view that he could now make his own personal and financial decisions and did not require a guardian or administrator.
The Tribunal found that GRH had problems with his memory, could not plan ahead and had little awareness of his impairments. It was therefore decided that he continued to need the assistance of a guardian and administrator to ensure that the most appropriate decision was made about his accommodation and how it would be financed.
The Tribunal did not consider that GRH's daughter should be his guardian and administrator. The Tribunal was not satisfied that she fully understood his disabilities and care needs or that she could objectively decide his accommodation.
The Tribunal decided to reappoint the Public Advocate as the represented person's limited guardian to decide where and with whom he should live. The Tribunal also decided to reappoint the Public Trustee as the represented person's plenary administrator.

Background

These reasons relate to a periodic review of orders for guardianship and administration made for GRH (the represented person).
On 18 November 2004, the former Guardianship and Administration Board (the Board) appointed the Public Advocate as the represented person's limited guardian to decide where and with whom he should live whether permanently or temporarily. On the same day the Board appointed the Public Trustee as the represented person's plenary administrator. Both orders were made for a period of 12 months.
On 24 January 2005, this Tribunal took over most of the functions of the Board including the review of orders made by the Board.
The applications for review were heard on 14 November 2005. The represented person attended as did his partner, AMB. The Public Advocate was represented by CM the delegated guardian for the represented person (the guardian). The represented person's mother and daughter who both live outside of Western Australia did not attend but spoke with the guardian prior to the hearing.

Decision

The Tribunal has decided to confirm the orders made by the Board on 18 November 2004. This means that the Public Advocate is reappointed limited guardian for the represented person to decide where and with whom he should live and the Public Trustee is reappointed his plenary administrator. Both orders shall be reviewed in 12 months.
The Tribunal will give reasons for its decision by firstly stating the legislation that is relevant to the review of the guardianship and administration orders, then detailing the information provided to the Tribunal in respect of the represented person's capacity and the submissions made by the parties and lastly discussing all the information against the legislation to come to its findings.

The relevant legislation

The powers of the Tribunal on review of guardianship and administration orders are set out in s 90 of the Guardianship and Administration Act 1990 (GA Act), which provides:
"(1)Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order –
(a)amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;
(b)revoke the order, or revoke the order and substitute another order for it; or
(c)without limiting paragraphs (a) and (b) –
(i)revoke the appointment of any guardian or administrator;
(ii)appoint a new or additional guardian or administrator;
(iii)appoint an alternate guardian.
(2)A review under this Part is in the State Administrative Tribunal's original jurisdiction."
When considering guardianship and administration, the Tribunal must be satisfied that the represented person is someone for whom a guardian and administrator could be appointed (the question of capacity) and if found incapable, whether the person should have a guardian and administrator appointed (the question of need). If a guardian and administrator are to be appointed, the final questions to be considered are what functions should be given to the guardian and administrator and who that guardian and administrator should be.
The relevant legislation is contained in s 3, s 4, s 43, s 44, s 64 and s 68 of the GA Act.
With regard to guardianship, the Tribunal needs to be satisfied that the represented person is incapable of looking after his or her own health and safety, or unable to make reasonable judgments in respect of matters relating to his or her person or is in need of oversight, care or control in the interests of his or her own health and safety or for the protection of others, and is in need of a guardian (s 43)
With regard to administration, the Tribunal needs to be satisfied that the 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 his or her estate and is in need of an administrator (s 3, s 64).
The principles to be observed by the Tribunal when dealing with proceedings under the GA Act are set out in s 4. The primary concern of the Tribunal shall be the best interests of the represented person. The remaining principles are, firstly, that every person is presumed to be capable of looking after his or her own safety and health; of making reasonable judgments in respect of matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to his or her estate unless otherwise determined by the Tribunal. Secondly, an order appointing a guardian or administrator shall not be made if the needs of the person concerned could be met by other means less restrictive of the person's freedom of decision and action. Thirdly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of the person concerned. Fourthly, an order appointing a limited guardian or an administrator shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action. Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.
The question of who should be appointed guardian is provided for in s 44 of the GA Act which reads:
"(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."
The question of who should be appointed administrator is provided for in s 68 of the GA Act which reads:
"(1)An administrator (including a joint administrator) shall be -
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee, who has consented to act and who, in the opinion of the State Administrative Tribunal -
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
(2)The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that -
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible -
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(4)The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate 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 an administrator unless there is no other individual or corporate trustee who is suitable and willing to act."

The represented person's capacity

The Tribunal has been provided with two reports which speak to the represented person's capacity to make reasonable judgments about his personal and financial affairs. The first is from Dr F, his general practitioner, and is dated 10 October 2005. Dr F states that the represented person suffers from "alcohol induced cognitive loss with neuropathy, cirrhosis and epilepsy". Dr F is of the view that the represented person needs constant reminders about his personal health care, would neglect himself if left unsupported and is unable to plan ahead. In a further comment about his personal health care, Dr F states that the represented person is "probably incapable" but that he "does have episodes when he is more aware". The second report is from the manager of the hostel where the represented person resides. The manger states that the represented person has short-term and long-term memory problems and as a consequence requires repetition of instructions given to him. He is said to lack awareness and insight into his limitations. The manager is of the view that the represented person becomes fixated about things and does not understand "the pros and cons of attaining what he wants".

The submissions

The represented person moved into a psychiatric hostel in November 2004 after in-patient care in a hospital. He had been admitted to hospital after not being able to cope in his rented accommodation. The represented person met his partner, AMB, in the hostel and they now share a room.
In a letter submitted at the hearing, the represented person and AMB state that they plan to marry and live in AMB's unit. They would like to visit the represented person's mother in Adelaide and then spend a few weeks with his daughter and grandchildren in Melbourne. They would like to travel to Northam and Kalgoorlie as "a break from city life" and at a later time they might live in either of those places.
The represented person expresses a wish that he and AMB can soon leave the hostel and live independently. He says that neither he nor AMB are happy there. He says, "you know, we can't get our relationship properly settled, and everyone's uptight in the place. Everyone's fighting. There's always police coming around there". (page 10 of the transcript)
As regards his finances the represented person says that he does not have money to do anything and has to rely on secondhand clothes. Even so, he is not concerned that the Public Trustee is managing his finances.
The guardian, in a written submission and at the hearing, states that a decision has been made for the represented person to live in the hostel for the immediate future. The represented person has at various times put alternatives to the guardian for consideration and these include moving into AMB's property, purchasing a house, moving to Kalgoorlie and moving into a hostel which would allow he and AMB to have a double room. From time to time the represented person expresses a wish to live in Victoria to be near his daughter but at the hearing his response to that option was "that's off" (page 8 of the transcript). Although they communicate, the represented person has not seen his daughter for about 20 years.
The guardian has had contact with the represented person's daughter and at present the daughter accepts that her father's care needs are such that he cannot live with her. She also accepts that he requires supported accommodation and someone to manage his finances.
The guardian states that the daughter would still like the represented person to move to Victoria and that she could act as his guardian to find him somewhere to live and also manage his finances. The daughter has told the guardian that the represented person has written to her stating his wish to move to Victoria.
The guardian has discussed the represented person's circumstances with the manager and clinical nurse at the hostel. Both have stated the view that the represented person cannot live in unsupported accommodation. He requires prompting to complete daily personal care tasks and needs reassuring when he suffers episodes of anxiety. They also advise that AMB might not be able to continue in her relationship with the represented person if he leaves the hostel.
The Public Advocate has also spoken with the represented person's mother. She says that the represented person should be given an opportunity to make some decisions, however, she supports his relationship with AMB and would favour the continuation of the guardianship order if that would assist in enabling them to stay together.
The guardian says that the represented person has told her he would like to make the decision about where he lives.
The guardian says that the represented person has "been quite changeable over the last few months about where exactly he would like to live" (page 8 of the transcript). She submits that he requires assistance to make this decision and proposes that the guardianship order remain in place for a further 12 months.
The Public Trustee has provided a written report to the Tribunal about the conduct of the administration over the last 12 months. The report shows that the majority of the represented person's pension income is used to pay his board and lodging at the hostel. The represented person has requested an increase in his personal allowance but this has been declined because of insufficient funds. The represented person has a debt to St John Ambulance service of over $3 000 which will take a number of years to repay.
The Public Trustee proposes that the administration order be continued.
The guardian states that she has discussed the represented person's finances with the Public Trustee. She has been advised that the represented person does not have any savings and would not be able to cover the ingoing costs of a private rental.
The guardian has also spoken with the manager and clinical nurse of the hostel. They refer to the represented person's significant problems with his memory and say that would prevent him from adequately managing his finances. They have told the guardian of their concern that the represented person would purchase alcohol if he had control of his pension. They say he is unrealistic about his financial capacity and that he believes he has the means to purchase a house.
The represented person has told the guardian he would like to manage his money, however, the guardian does not support this and proposes that the order for administration be confirmed for a further 12 months.

Discussion of the submissions and findings of the Tribunal

The represented person is 58 years of age and according to Dr F has mental and physical disabilities consistent with long-term alcohol abuse. His mental disability is reported to manifest in significant problems with his memory, an inability to plan ahead and a lack of awareness of the limitations in his thinking. The represented person has unrealistic expectations about his accommodation prospects and how they can be financed.
On the available evidence, the Tribunal is satisfied that the represented person is unable to make reasonable judgments in respect of his financial affairs and certain matters relating to his person particularly his accommodation. Without support he is likely not capable of looking after his own health and safety and would be in need of oversight care and control.
When a person is found to be incapable, pursuant to s 43(1)(b) (guardianship) and s 64(1)(a) (administration) of the GA Act, the question that next has to be considered is whether he is in need of a guardian and administrator. Such need is read subject to s 4(2)(c) of the GA Act, which provides that 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.

The meanings of "need" in respect of guardianship and administration and the "needs of the person" as it refers to the possibility of a less restrictive alternative to the making of formal orders were considered by the Full Board of the Guardianship and Administration Board in Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) at 320-332.
"…it is apparent that where the provisions of s 43(1)(b) are met it will usually follow that there will be a need for a guardian as provided in s 43(1)(c). The same can also be said in relation to the need for an administrator under s 64(1)(b). This is so because unless a guardian or administrator is appointed there would in most cases be no one with legal authority to make decisions in respect of the represented person. There would in other words be a legal vacuum. Therefore the 'need' in those sections in our view means the 'need' for someone to have formal legal authority to make decisions on behalf of the represented person in order to resolve issues relating to the personal affairs of the represented person or to manage and protect the financial estate."
There may, however, not be a need for a guardian pursuant to s 43(1)(c) or an administrator pursuant to s 64(1)(b) if for example, "…there is some other statutory provision which gives legal authority for the decision-making in question […] or if there is in fact no live issue or foreseeable conflict in relation to the personal affairs of the represented person so as to give rise to the need for this Board to intervene in the life of the represented person by making a formal order". (MM at 330)
The test as it relates to the "needs of the person" is of a broader nature. In MM at 330:
"…the phrase 'needs of the person' …involves a different test. The 'needs' there described are of wide import and encompass all the wants and necessaries of the person. Thus there is a two step process. The Board must first determine whether there is a need for a guardian in s 43(1)(c) (or a need for an administrator in s 64(1)(b)) and then move on to the issue whether notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of that person can nevertheless be met under informal arrangements which are less restrictive of the person’s freedom of decision and action".
The represented person in this review is in need of a guardian and administrator as contemplated by s 43(1)(c) and s 64(1)(b) of the GA Act. There are important decisions to be made in his life, in particular the decision about where he is to live and how that is to be financed. There are a number of accommodation options available for consideration but there is no clear agreement as to what is the most appropriate alternative. The represented person currently has a clear wish about where he wants to live (although that changes from time to time) but because of his mental disability he is incapable of judging what is in his best interests. There is therefore a legal vacuum in the decision making.
The Tribunal is not satisfied that there is presently a less restrictive alternative to the making of orders. The represented person is currently in supported accommodation in which his health and care needs are being met. He does not want to remain in that accommodation and it is possible that were a guardianship order not in place, he would leave. There is enough evidence before the Tribunal to find that the represented person is unable to care for himself without assistance and further that he is not sufficiently aware of that fact. The represented person's daughter would like him to move to Victoria and although she has told the guardian that she understands his needs, the Tribunal is not satisfied that her level of understanding is grounded in the reality that the represented person's needs are significant and that there would be a risk to his health and safety should he not receive specialist care and monitoring. The daughter has not seen her father for about 20 years and it is likely that her knowledge of his circumstances during that time have come principally from his communications with her.
As for the other personal decisions that might need to be made for the represented person such as consent to medical treatment, the provision of services and the extent of contact with others, the Tribunal is of the view that orders are not currently required in these matters but that does not preclude the possibility they might be needed in the future. The Tribunal is satisfied that within the supported environment in which he lives the represented person is able to give consent to medical treatment and it appears that is what he has been doing. No submission was made to the Tribunal that the represented person is to undergo treatment of a complex or contentious nature for which, with his cognitive impairment, he would find it difficult to give informed consent. If suitable accommodation is found for the represented person outside of a hostel setting he is likely to need support services. The decision about the level of support required could be decided by negotiation with the represented person. It is only if he rejected services that were clearly required would the need for a guardianship order arise for that decision. The decision about contact with others relates to the particular possibility of a visit to his daughter in Victoria. Once again that decision has yet to be made and the need for an order in that matter should only occur if there is unresolvable disagreement about say the extent and place of contact.
The represented person's finances are in a precarious state. He has a significant debt with St John Ambulance Service and it is only with the skill of the Public Trustee as his administrator that a manageable repayment arrangement has been negotiated. The Tribunal is of the view that the represented person is unable to fully appreciate the extent to which his finances currently limit the accommodation options available to him. The Tribunal also accepts the submission that were the represented person given control over all his pension income there would be some risk that he would resume the consumption of alcohol which would be contrary to his wellbeing. It is the case that only since he has lived in supported accommodation over the last 12 months and his finances have been managed, that the represented person's health has stabilised and he is in a position to contemplate a future with his partner.
The Tribunal agrees with the Public Advocate that it is too soon to consider a revocation of the orders for guardianship and administration. The represented person is at a point in his life where positive outcomes are still possible despite his circumstances and impairments. The Tribunal is of the view that the represented person has the right to benefit from the appointment of a guardian and administrator to give him the best possible chance of that positive outcome particularly with respect to his future accommodation.
The Tribunal agrees with the Public Advocate that a guardianship order should be made with the sole function of deciding where and with whom the represented person is to live and this is consistent with the principle of the GA Act which states that a plenary order should not be made if a limited order is sufficient (s 4(2)(d)).
The Tribunal agrees with the Public Trustee that a plenary administration order is warranted at this time. The represented person requires appropriate management of his finances in the context of the important decision about his accommodation. A limited order would unnecessarily hinder the role of the administrator in this regard.
The Tribunal accepts the submission of the Public Advocate that the guardianship and administration orders should be reviewed in 12 months. This is considered sufficient time to investigate the accommodation options available to the represented person and to make a decision about where he best should live. It is anticipated that the situation for the represented person should then be clear enough for a determination to be made as to whether and in what form orders are still required.
On the question of who should be guardian and administrator, the Public Advocate and the Public Trustee have proposed themselves. The represented person's daughter has not a made submission directly to the Tribunal but she has, in her communications with the Public Advocate, indicated that she is willing to act as her father's guardian and administrator.
The Tribunal has no information before it to make a judgment about whether the daughter is able to perform the functions of guardian and administrator. Even if it did and that information was positive, the Tribunal would not at this time appoint the daughter. Whilst the represented person and his daughter have communicated in recent times the fact is that they have not seen each other for about 20 years. The Tribunal is not satisfied that the daughter has a full understanding of the represented person's disabilities and his care needs. She is reported by the Public Advocate to want him to live in Victoria but there is no indication that she has assessed this option against his current accommodation and other accommodation options and in the context of his relationship with AMB.
The Tribunal must therefore reappoint the Public Advocate as guardian and the Public Trustee as administrator pursuant to s 44 and s 68 of the GA Act.
The orders made by the Board on 18 November 2004 are confirmed for 12 months.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER