HL and DC
[2008] WASAT 197
•29 AUGUST 2008
HL and DC [2008] WASAT 197
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 197 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1494/2008 | 29 JULY 2008 | |
| Coram: | MS M JORDAN (SENIOR SESSIONAL MEMBER) | 29/08/08 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appointment of an administrator | ||
| B | |||
| PDF Version |
| Parties: | HL DC |
Catchwords: | Administration Application brought to reappoint administrator following revocation of administration order in November 2007 on the basis that the then represented person had capacity to make decisions with regard to his finances with the assistance of friends and the capacity to make an Enduring Power of Attorney Deterioration of his physical and cognitive function The failure to have made an Enduring Power of Attorney Not making proper provision for his accommodation and pharmacy expenses Inability to manage his finances Appointment of administrator |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2), s 64(1) |
Case References: | HL and DC [2008] WASAT 50 |
Orders | 1. The Public Trustee of 565 Hay Street, Perth, Western Australia be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).,2. This order is to be reviewed by 29 July 2013. |
Summary | Mr C is residing in residential care and had an administrator appointed to manage his finances on 3 July 2006. That order was revoked on 2 November 2007 as Mr C was found to be capable of managing his own finances with the assistance of his friends and, further, Mr C was capable of making a valid Enduring Power of Attorney (EPA).,Mr C failed to appoint an attorney and, since November 2007, his condition has deteriorated so that he now no longer has the capacity to manage his finances or make an EPA.,The Public Trustee is appointed as his plenary administrator for five years. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : HL and DC [2008] WASAT 197 MEMBER : MS M JORDAN (SENIOR SESSIONAL MEMBER) HEARD : 29 JULY 2008 DELIVERED : 29 AUGUST 2008 FILE NO/S : GAA 1494 of 2008 BETWEEN : HL
- Applicant
AND
DC
Represented Person
Catchwords:
Administration - Application brought to reappoint administrator following revocation of administration order in November 2007 on the basis that the then represented person had capacity to make decisions with regard to his finances with the assistance of friends and the capacity to make an Enduring Power of Attorney - Deterioration of his physical and cognitive function - The failure to have made an Enduring Power of Attorney - Not making proper provision for his accommodation and pharmacy expenses - Inability to manage his finances - Appointment of administrator
(Page 2)
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 64(1)
Result:
Appointment of an administrator
Category: B
Representation:
Counsel:
Applicant : Self-represented
Represented Person : Self-represented
Solicitors:
Applicant : Self-represented
Represented Person : Self-represented
Case(s) referred to in decision(s):
HL and DC [2008] WASAT 50
(Page 3)
Summary of Tribunal's decision
1 Mr C is residing in residential care and had an administrator appointed to manage his finances on 3 July 2006. That order was revoked on 2 November 2007 as Mr C was found to be capable of managing his own finances with the assistance of his friends and, further, Mr C was capable of making a valid Enduring Power of Attorney (EPA).
2 Mr C failed to appoint an attorney and, since November 2007, his condition has deteriorated so that he now no longer has the capacity to manage his finances or make an EPA.
3 The Public Trustee is appointed as his plenary administrator for five years.
Background
4 Mr C is a 62yearold man residing in residential care due to cerebrovascular disease which prevents him from returning to his own accommodation.
5 Mr C had previously been under an administration order from 3 July 2006 which was revoked at a hearing on 2 November 2007. The reasons for that decision have been published by the Tribunal as HL and DC[2008] WASAT 50. In essence, at that time, whilst he was in poor health, his general practitioner, Dr W had given evidence to the Tribunal by way of a written report that Mr C was capable of making reasonable decisions at that time in relation to his personal health care, his living situation and his financial affairs, but with the qualification that Mr C needed to be alcohol free. Dr W also considered that Mr C was capable of executing a valid Enduring Power of Attorney (EPA) at that time. This evidence was confirmed at the hearing with Dr W adding that he had observed Mr C over more than 20 years both as his medical advisor and as a friend. In Dr W’s opinion, Mr C could live independently but needed someone to call on him a few times a week to make sure that he was coping.
6 Mr C had told the Tribunal at the November 2007 hearing that he was planning to live independently, that he had a number of friends who were willing and able to assist him financially and from whom he could appoint a donee to manage his finances pursuant to an EPA.
(Page 4)
The present application
7 The applicant is a social worker at the care facility where Mr C resides and is the same applicant as in the 2007 proceedings.
8 Since the administration order was revoked in 2007, Mr C’s health has deteriorated and he is no longer able to live independently.
9 Mr C has not appointed anyone as his attorney under an EPA.
10 Mr C has ceased to make appropriate arrangements to meet his expenses incurred at the care facility and has made large withdrawals from his bank account which he has carried around on his person.
11 At the conclusion of the hearing, I announced my decision that the Public Trustee be appointed as plenary administrator for a period of five years.
The issues to be determined
12 To make the order sought, with regard to the appointment of an administrator, the Tribunal must be satisfied that the preconditions for the making of such an order, as set out in s 64(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), are made out. That provision relevantly provides that the Tribunal may appoint an administrator if it is satisfied that the person concerned:
(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.
13 In exercising its powers under the provisions referred to above, the Tribunal must observe the principals set out in the GA Act, s 4(2), which require the Tribunal to have as it’s primary concern the best interests of Mr C; to presume that Mr C is capable of the matters referred to above until the contrary is proved to the Tribunal's satisfaction; to not make orders if the needs of Mr C could be met by other means less restrictive of his freedom of decision and action; to make any orders in terms that impose the least restrictions possible in the circumstances on Mr C’s freedom of decision and action; and to, as far as possible, seek to ascertain the views and the wishes of Mr C.
(Page 5)
Consideration
14 At the hearing in November 2007, whilst Mr C was clearly in illhealth, he had improved considerably in relation to his physical and cognitive functioning. The hearing in that matter had been requested by the same applicant in this matter because she had had great difficulty in contacting the then appointed administrator and was seeking the Tribunal’s review of the appointed administrator and seeking a substitute appointment.
15 At the conclusion of that hearing, Mr C was clear that he wanted to move into independent accommodation and have more control of his affairs and was willing to appoint one of his friends to act as his donee under an EPA. His capacity to do this was supported by his friend and general practitioner Dr W.
16 In the present hearing, Dr W provided the Tribunal with a report dated 30 June 2008 in which he stated that Mr C does have an impairment of his cognitive function and is at times quite irrational but at other times very lucid. He has some recent memory loss, but not all. He stated that Mr C’s capacity to make reasonable decisions now relating to his personal health care was variable. He further stated that Mr C is incapable of making reasonable decisions now in relation to both his living situation and his financial affairs. He maintained his previous view that Mr C was capable of making a valid EPA.
17 A further medical report dated 16 July 2008 was provided to the Tribunal by Dr RW, a psychiatrist from Sir Charles Gairdner Hospital (SCGH). Dr RW had visited Mr C on that day at the request of the applicant whilst he was at SCGH undergoing renal dialysis and conducted an assessment which she acknowledged was limited as it had been done whilst dialysis was in progress and without any collateral information. Dr RW has known Mr C for four years and stated that Mr C has an impairment of his cognitive ability with diagnoses of end stage renal failure on dialysis and an uncertain type of dementia. A mini mental state examination undertaken on 12 May 2008 was scored at 9/21 without the test being completed to the full 30 points due to Mr C’s irritability. Dr RW stated Mr C was capable of making reasonable decisions now in relation to his personal health care, adding that he was aware of the need for dialysis and his choice to continue this treatment. She continued that Mr C was incapable of making reasonable decisions now in relation to his living situation, adding that he believes he can live independently with modifications to the toilet for amputee, and he was unable to name his current residence. Dr RW stated that Mr C was unable to make
(Page 6)
- reasonable decisions with regard to his financial affairs in that he had no awareness of his income, liabilities or process of meeting these. Dr RW added that Mr C lacked the capacity to execute a valid EPA.
18 Mr C now accepts that due to the deterioration in his health he is unable to live independently and is no longer pursuing a move to independent accommodation. Mr C did not execute an EPA following the hearing in November 2007.
19 Mr C acknowledged to the Tribunal that he had not been handling his finances wisely since the administration order was revoked. It was alleged by the applicant that although in January 2008, Mr C with the assistance of the applicant, made arrangements for the payment of his nursing home fees and pharmaceutical expenses by direct debit but had since cancelled this arrangement and had not otherwise met the outstanding costs incurred to both the nursing home or his pharmacy. Mr C acknowledged this was the case.
20 At the time the application was made, Mr C owed the nursing home $2,036.71 and the pharmacy about $600.
21 It was further alleged by the applicant, that Mr C had been withdrawing his pension from the bank and keeping large sums of money in his wallet, and spending same on nonessential items such as food which is already provided for him by the nursing home. Mr C acknowledged this was the case. At the time this application was made, Mr C had approximately $100 left in his bank account.
22 The applicant told the Tribunal that on one occasion, Mr C’s wallet was bulging with cash so that it was difficult to remove individual notes. She assisted with the removal, and noted that Mr C was unable to correctly count the money that his wallet contained.
23 When challenged by the applicant as to the outstanding fees and the need to make payments for his pharmacy bills, Mr C was alleged to have indicated that he would not pay these bills as these services should be provided free to him. The applicant said that Mr C had always declined to pay bills from St John’s Ambulance. The applicant informed the Tribunal that his present debt to St John’s is in the vicinity of $22,000.00 for accounts going back many years.
24 The applicant alleged that Mr C does not open his mail upon receipt, but throws away the envelopes without attending to the contents. Mr C agreed that was the case, as he said he just didn’t want to know what they contained.
(Page 7)
25 Mr C told the Tribunal that if he put his mind to it, he would be able to properly manage his finances, but that he can’t seem to put his mind to it. Mr C agreed that it would be helpful to have the Public Trustee manage his finances for him.
26 I am satisfied that Mr C fulfils the criteria provided by s 64(1)(a) and s 64(1)(b) in that he is a person who is unable by reason of a mental disability to make reasonable judgments with regard to his finances and needs an administrator to carry out this role for him.
27 I am satisfied that there is no less restrictive alternative to the appointment of an administrator. There being no other person who is available to carry out this role for Mr C, the Public Trustee is therefore appointed as his plenary administrator for a period of five years.
Orders
1. The Public Trustee of 565 Hay Street, Perth, Western Australia be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2. This order is to be reviewed by 29 July 2013.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M JORDAN, SENIOR SESSIONAL MEMBER
0