H
[2024] WASAT 81
•6 AUGUST 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: H [2024] WASAT 81
MEMBER: PRESIDENT GLANCY
MR E CADE, MEMBER
MS M HIPWORTH, MEMBER
HEARD: 24 JUNE 2024
DELIVERED : 24 JUNE 2024
PUBLISHED : 6 AUGUST 2024
FILE NO/S: GAA 2003 of 2024
H
Represented Person
Catchwords:
Guardianship - Administration - Section 17A of the Guardianship and Administration Act 1990 (WA) - Review of Guardianship Order - Review of Administration Order - Whether subject has a mental disability - Whether subject is unable to make reasonable judgments in respect of matters relating to their estate
Legislation:
Guardianship and Administration Act 1990 (WA)
Interpretation Act 1984 (WA)
State Administrative Tribunal Act 2004 (WA)
Result:
Guardianship order revoked
Administration order revoked
Category: B
Representation:
Counsel:
| Represented Person | : | In person |
Solicitors:
| Represented Person | : | Not applicable |
Case(s) referred to in decision(s):
FS [2007] WASAT 202
FY [2019] WASAT 118
Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
SAL and JGL [2016] WASAT 63
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Ms H applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for the review of orders made by a single member of the Tribunal on 25 March 2024 (Decision).
The Decision dealt with an application made by Ms H's daughter for the appointment of a guardian and administrator for Ms H. That application was made in circumstances where Ms H had recently experienced a mental health crisis and a period of hospitalisation for the significant injuries she had suffered when she drove her car into a tree.
At the time of the Decision, the Member was satisfied that Ms H was incapable of managing her own financial affairs and making certain personal decisions, and found that she was in need both a guardian and an administrator.
The Member appointed Ms H's brother, Mr H, as her plenary administrator and appointed her daughter, Ms OT, as her limited guardian with functions to make decisions about:
(a)accommodation;
(b)medical treatment;
(c)services;
(d)interstate or overseas travel - including notifying Australian Federal Police and the Department of Foreign Affairs of the order; and
(e)taking possession of interstate and overseas travel documents.
Following the hearing on 24 June 2024, we concluded that the correct and preferable decision at the time of the review was to revoke the orders made on 25 March 2024. We made orders to that effect at the time. We said that we would publish our reasons at a later time. These are our reasons.
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.
Reviews under s 17A come within the Tribunal's review jurisdiction. When it conducts a s17A review hearing, the Tribunal conducts a fresh hearing, and is not limited to the matters and evidence that were considered at first instance. The Tribunal may consider new material whether or not it existed at the time that the Decision was made.[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).
Principles governing proceedings under the GA Act
Before turning to the specific facts of Ms H's case, it is important to identify that in dealing with proceedings under the GA Act, the Tribunal is required to observe the principles set out in s 4 of that Act.
Those principles provide that:
(1)the primary concern of the Tribunal is the best interests of any represented person;[3]
(2)every person is presumed to be capable of, amongst other things, managing their own affairs and making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the Tribunal;[4]
(3)in considering any matter relating to a represented person, the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the person concerned;[5]
(4)an administration order should not be made if the needs of the proposed represented person could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action;[6]
(5)a plenary guardian shall not be appointed if the Tribunal is of the opinion that the appointment of a limited guardian would be sufficient to meet the needs of the proposed represented person;[7] and
(6)any order appointing a limited guardian, or an administrator should be in terms that, in the opinion of the Tribunal, impose the least restrictions possible, in the circumstances, on the represented person's freedom of decision and action.[8]
[3] GA Act, s 4(2).
[4] GA Act, s 4(3).
[5] GA Act, s 4(7).
[6] GA Act, s 4(4).
[7] GA Act, s 4(5).
[8] GA Act, s 4(6).
The material before the Tribunal on the Review Application
In coming to our decision on the review, we had regard to a great deal of oral and documentary evidence and oral and written submissions. We identify that material next.
Ms H attended the hearing and was able to convey to us her views and wishes, both orally and in written submissions.
A number of interested persons also attended the hearing and gave evidence. They were:
(1)Mr H, Ms H's brother and appointed administrator;
(2)Ms OT, Ms H's daughter and appointed guardian;
(3)Mr LT, Ms H's stepfather.
(4)Ms SG, Ms H's sister;
(5)Ms MC, Ms H's cousin;
(6)Mr CW, Clinical Nurse Co-ordinator at the Orchard Avenue Centre, a service of the Armadale Health Service Adult Mental Health Team;
(7)Ms GM, an advocate from HelpingMinds, a mental health education, services and carer support organisation; and
(8)Mr BA, an employee of the Office of the Public Advocate.
The Tribunal had before it in evidence, all of the documents which were before the Member on 25 March 2024. They were collected together in the Hearing Book.
We also had regard to the transcript of the evidence which was given before the Member at the hearing on 25 March 2024.
We also took into account the following new evidence which was not before the Member at the time of the Original Decision:
(1)Letter from Mr LT dated 3 June 2024;
(2)Rent summary from Mr LT dated 4 June 2024;
(3)Letter from Ms MC dated 31 May 2024;
(4)Office of the Public Advocate Investigator's report dated 20 June 2024;
(5)Medical Report from Dr W, psychiatrist from Perth Clinic dated 13 February 2024;
(6)Medical Report from Dr O, Ms H's general practitioner dated 21 June 2024;
(7)Medical Reports of Dr ST, psychiatrist at the Orchard Avenue Centre, dated 23 May 2024; and
(8)Service Provider Report of Ms NB, Clinical Psychologist, dated 6 June 2024.
We also had regard to written submissions, which also contained information in the nature of evidence which was provided by Ms H.
Appointment of Guardian
We turn next to consider the legal requirements that must be met before a guardian can be appointed under the GA Act.
The appointment of a guardian requires that the Tribunal be satisfied as to the matters set out in s 43, which provides:
43.Making of guardianship order
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 —
(a)has attained the age of 18 years;
(b)is —
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint —
(d)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of a guardian, it shall also declare the matter or matters set out in paragraph (b) of that subsection of which it is satisfied.
…
(3)An appointment under subsection (1) or (2a) may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit.
(4)An order appointing a limited guardian shall specify the functions that are vested in the limited guardian under section 46.
If the Tribunal is satisfied that the person is over 18 years of age, is either incapable of looking after his or her own health and safety, unable to make reasonable judgments in respect of matters relating to his or her person, or in need of oversight, care or control in the interests of his or her own health and safety or for the protection of other persons, and is in need of a guardian, then the Tribunal is required to consider subsidiary questions, such as who should be appointed the guardian.
We then considered the threshold issues, in Ms H's case.
(a) age
We are satisfied that the evidence established, and we found that Ms H is over 18 years of age. Her date of birth is 21 August 1966.
(b) incapacity
The medical evidence sets out that Ms H has experienced longstanding mental health issues in her life. She has been diagnosed with borderline personality disorder and complex post-traumatic stress disorder (by Dr ST, psychiatrist at Orchard Avenue), major, or severe depression and attention deficit hyperactive disorder (by Dr O, general practitioner) and recurrent major depressive disorder and attention deficit hyperactive disorder (by Dr W, psychiatrist at Perth Clinic).
With the exception of the diagnosis of borderline personality disorder, Ms H accepts these diagnoses.
In his report dated 23 May 2024, Dr ST who is a psychiatrist at Orchard Avenue, stated he has known Ms H for two months and had seen her twice in that time. He expressed the opinion that Ms H has had capacity to manage her personal and financial affairs independently since being discharged from hospital earlier this year.
Dr O, Ms H's general practitioner of 20 years, provided a report for the hearing on 25 March 2024 and a subsequent report dated 21 June 2024 for use in the review hearing.
In his 25 March 2024 report, Dr O said that Ms H has a mental disability, being major depression and ADHD. In that report he said Ms H's condition was progressive and that she was incapable of dealing with simple and complex financial matters and legal matters. He also expressed the opinion that Ms H did not have the capacity to make decisions about accommodation or access to services and he was unsure whether she had capacity to make medical treatment decisions. He said that he was of the view she lacked capacity to execute an enduring power of attorney (EPA), an enduring power of guardianship (EPG) and an advanced health directive (AHD).
In his report dated 21 June 2024, Dr O described Ms H's overall condition as improving and said she would be capable of dealing with simple financial matters and legal matters. He said that he was unsure about her ability to make complex financial decisions, saying he had been unable to assess her higher cognitive function himself at that stage. He described her mental health and cognitive capacity as improving since her prolonged hospital admission, treatment in hospital and engagement with community mental health services. Dr O was of the view that Ms H had recovered and has capacity to make reasonable decisions about medical treatment, accommodation and services, and had capacity to execute an EPA, an EPG and an AHD
In his report dated 13 February 2024, Dr W, Ms H's psychiatrist from Perth Clinic, expressed his opinion that Ms H has a mental disability, being recurrent major depressive disorder of many years' history and had been diagnosed with ADHD in the last two to three years. He stated that he was unable to provide any information about her capacity to make decisions because he had not seen her for the six months prior to providing his report.
Dr C, a Psychiatric registrar from Royal Perth Hospital filed, for the purpose of the 25 March 2024 hearing, a letter which stated she had no doubts that Ms H could make her own medical and accommodation decisions, although she was unable to comment on her ability to make financial decisions because Ms H's capacity to do so had not been assessed.
In her report dated 6 June 2024, clinical psychologist Ms NB stated she has known Ms H for one month and had seen her four times in that period of time. She offered a provisional diagnosis of complex PTSD and noted that Ms H had reported being admitted to Perth Clinic for some 20 weeks in the last six months of 2023 and also having a five-week admission to Royal Perth Hospital in early 2024.
In her report dated 23 January 2024, Royal Perth Hospital social worker Ms LW described a complex relationship between Ms H and her mother and stepfather. She stated that Ms H rents a property from them, and the property borders the back of their home. She reported Ms H has been at times financially supported by her parents in this arrangement.
Ms LW reported that Ms H's mother has been in poor health for some time, and as a result, Ms H now relies heavily on her stepfather for support during times of mental ill-health and for financial support and practical assistance around the home.
In her report, Ms LW raised concerns about Ms H's challenging behaviours, existing family tensions and the financial impact her behaviour was having on her family.
Mr LT gave evidence that he needs to retire to provide support to his wife and that in order to do so with some financial security, he needs to sell the home in which Ms H currently lives before the end of 2024.
For the purpose of the review hearing, Ms H provided a great deal of information in comprehensive written submissions prior to, and in evidence at the hearing. In her written and oral evidence, she set out the steps she has been taking to assist in her recovery, to engage with supports and to identify steps involved in finding alternative accommodation.
In her letter to the Tribunal, Ms MC said that she is a school teacher of 30 years' experience and holds a Bachelor of Psychology. She has known Ms H since childhood although they had until recently lost contact with each other for many years. She explained that she has now reconnected with Ms H and has noticed that Ms H is much more positive and goal oriented, has become interested in hobbies, considers pros and cons when making important decisions and has adopted an organised and methodical approach to planning and carrying out tasks. In Ms MC's opinion, Ms H has good insight into her medical conditions and needs.
Ms MC said that the orders made appointing a guardian and administrator have had a devastating impact on Ms H due to her perception that she has lost control over her life.
At the review hearing, Mr LT said that he has seen a significant positive change in Ms H in the last several months. In particular, he said she has taken responsibility for herself and is much less reliant on others and is making positive decisions, is taking her medications as required and is organising and attending her own appointments.
Mr LT also said that Ms H is managing her finances herself and is paying her rent and as well as paying off her rent arrears. Mr LT said that he believes the guardianship and administration are no longer needed and that they were actually harmful to Ms H.
Mr CW, the Clinical Nurse Co-ordinator at the Orchard Centre, spoke positively about the steps that Ms H had taken to engage with the treatment and services that they offered that centre. He was of the opinion that Ms H has capacity to make decisions about all of her personal affairs.
Ms GM, a mental health advocate from HelpingMinds, a mental health service, support and education provider, also spoke positively about the steps Ms H had taken to obtain assistance since her discharge from hospital. Ms GM said that Ms H had contacted and was engaged with, HelpingMinds and was receiving short term services to assist with activities of daily living and was receiving assistance to obtain long term services through the NDIS.
Ms OT's evidence was starkly different from that of the other witnesses. Her view was that her mother still needed a substitute decision-maker. She said she was worried her mother wanted to buy a car and could do so if she was in control of her finances, and yet was still indicating that she wished to end her life by driving a car into a tree, the very act that led to her most recent admission to hospital.
Ms OT gave evidence that she was a support worker herself and had experience such that her opinions were not just those of a worried daughter, and she could see problems about her mother which her family cannot see or are overlooked because the family does not want to talk about them. She said the appointment of a substitute decision maker works, even if it does not feel good. She wants it to continue. Her evidence was that her mother needs assistance with activities of daily living - eg dishes, housework, shopping - and with community access. While she acknowledged that her mother had made some positive steps forward she is concerned that it has only been six months since her mother was discharged from the hospital. She thinks the guardianship orders are what has caused the positive change to her mother's behaviour.
Ms OT's evidence was that being her mother's appointed guardian had created tension between them and that while she thought a guardian still needed to be appointed, she was not able to continue in that role herself. She also acknowledged in her evidence that apart from the notification of relevant persons that her mother was not authorised to travel, she had made no other decisions as guardian and that her mother had continued to make her own decisions.
The Public Advocate representative recommended revocation of the guardianship order on the basis that it was no longer needed in Ms H's case.
On the basis of the evidence before us, we are not satisfied that the presumption of capacity has been displaced. Indeed, the evidence overwhelmingly tends to the opposite conclusion.
Accordingly, we have concluded that the correct and preferable decision on the review is to revoke the guardianship order made on 25 March 2024.
Given the conclusion we have reached (at [47]), it is neither necessary to consider the issues of whether a guardian is needed nor to consider who should be appointed guardian.
On the evidence at the review hearing, we are satisfied that Ms H has the capacity to look after her own health and safety and make reasonable decisions about her personal matters.
We acknowledge that Ms H's mental health issues are longstanding, that her condition may fluctuate, and it may deteriorate again. However, those concerns do not establish the need for a guardian.
We note that Ms H, on her own initiative during this period of improved mental health, has identified and continually engaged with at least two new mental health service providers. These service providers are in a position to monitor Ms H's condition and provide care, support and advocacy services to her. These supports, as well as the supportive role Ms MC now has in Ms H's life, are expected to improve upon the support and oversight that was available to Ms H over the last 12 to 18 months, and should work to identify and mitigate mental health deterioration.
Appointment of an administrator
We turn next to consider the issue of administration.
Appointment of an administrator 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.
The three primary questions for the Tribunal on the review, therefore, were:
(1)whether Ms H suffers from a mental disability;
(2)whether, by reason of that mental disability, Ms H is unable to make reasonable judgments in respect of matters relating to all or any part of her estate; and
(3)whether Ms H is in need of an administrator of her estate.
If those three questions were answered 'yes', then the Tribunal would be required to consider subsidiary questions, such as who should be appointed the administrator.
Consideration of criteria in s 64(1)
Whether Ms H has a mental disability
The expression 'mental disability' which is used in the GA Act is defined in s 3 as including an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
Having regard to the medical evidence to which we have already referred, we were satisfied on the balance of probabilities, and we found, that Ms H is a person who has a mental disability. Her diagnoses of borderline personality disorder, complex PTSD, recurrent major depressive disorder and attention deficit hyperactive disorder are recognised psychiatric conditions.
We turn, next, to explain why we were not satisfied that Ms H 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.
Whether Ms H is, by reason of a mental disability, unable to make reasonable judgments in respect of matters relating to all or any part of her estate
Section 64(1)(a) of the GA Act requires that the Tribunal considers whether a person with a mental disability 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'.
The application of s 64 involves both subjective and objective tests.[9] The Tribunal is required to consider whether the person in respect of whom the application is made has the ability to make 'reasonable judgments' about their estate. That constitutes a subjective test, because the person's ability to do so is to be assessed in relation to their actual estate. At the same time, the Tribunal must consider whether the person has the ability to engage in the mental processes which are required in order to make that judgment. That test is an objective one.
[9] FS [2007] WASAT 202 [106] (Barker J, Ms Toohey & Mr Mansveld); Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 [45] (Pritchard J).
The Tribunal is therefore required to:
consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a 'reasonable judgment' (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances.[10]
[10] FS [110] (Barker J, Ms Toohey & Mr Mansveld); Public Trustee v Brumar Nominees Pty Ltd [45] (Pritchard J).
A person's ability to make reasonable judgments in respect of their estate may depend on a variety of factors. These include their health, particularly their mental health, at any point in time. Fundamentally, however, a person's ability to make reasonable judgments about their estate requires that they have the intellectual ability necessary to make those kinds of decisions.
A person's ability to make reasonable judgments in respect of their estate requires that they have, amongst other things, the ability: to understand the need for, and sources of, income available to them; to understand the value of any income received relative to items of expenditure; to identify and calculate necessary expenditure for day to day living, together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their means; to identify and to assess the financial implications of particular items of expenditure or of financial decisions; to organise their affairs so as to be able to meet debts as they fall due; and to identify and implement problem solving strategies for resolving any unexpected financial issues.[11]
[11] FY [2019] WASAT 118.
The reference to a person's 'estate' is a reference to the sum of their property and their assets and liabilities. In practice, it encompasses the entirety of a person's real and personal property and all of their financial affairs.[12]
[12] SAL and JGL [2016] WASAT 63 [22] (Parry J, Dr B De Villiers & Ms Quinlan); see also Interpretation Act 1984 (WA) s 5; and see also the long title to the GA Act, which refers to the administrator providing assistance in the management of a person's financial affairs.
Ms H's estate presently consists of payments from her income continuance policy and a potential lump sum payment to which she may be entitled under her insurance policy as a Total and Permanent Disability payment.
Ms H's expenses are essentially rent, groceries and medical expenses.
We were satisfied, and we find, that the evidence did not establish that Ms H is unable to make reasonable judgments in respect of matters relating to her estate. We make that finding based on:
(i)Medical reports which indicated that her condition had improved and she was managing her finances independently.
(ii)The administrator's evidence that he did not make any decisions as an administrator, owing to him having been away travelling since he was appointed. His evidence was that he had not taken control of the bank account as administrator and has supported his sister to make her own financial decisions.
(iii)Mr LT's evidence that Ms H's capacity to make her own decisions had improved considerably over recent months and that she is taking responsibility for her financial affairs, paying rent and paying off her rental arrears and his view that an administrator is not required.
(iv)The evidence of Mr CR that Ms H is now making decisions to find cheap transport in an effort to keep costs at attending medical appointments down.
(vi)The evidence of the Office of the Public Advocate investigator in her 20 June 2024 report, which recommends that the administration orders be revoked.
Ms H's own evidence was that she wished to find meaningful work which would assist her in maintaining good mental health. She said that she was aware that that might mean she is not entitled to a Total and Permanent Disability payment from her insurance.
Her stepfather, Mr LT, indicated that he regarded that choice to be unrealistic and financially disadvantageous to Ms H and to him. This is because he feels that he should be paid back the premiums he has paid towards the insurance policy on Ms H's behalf from any Total and Permanent Disability payout made to her.
Ms H explained in her evidence the importance to her of working, her understanding that she may not then receive a payment from her insurance and the consequence that may have for her financially. She gave evidence that she intended to consult with a free or low-cost financial adviser before making any financial decision about this issue.
That evidence indicated to us that Ms H understood her financial position and would be able to understand and make choices about it. A person who has capacity to make reasonable decisions in relation to their estate does not have to make what others would regard as good decisions in every case. What is required is only that they are capable of doing so. In this case, Ms H's evidence, taken with the other evidence given in the proceeding leads us to conclude that the presumption of capacity has not been displaced.
As we are not satisfied that Ms H is currently unable to make reasonable decision about her estate, we found that the correct and preferable decision to make on the review was to revoke the administration order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS
Associate to the Hon Justice Glancy
6 AUGUST 2024
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