JED
[2008] WASAT 80
•11 APRIL 2008
JED [2008] WASAT 80
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 80 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2015/2007 | 11 DECEMBER 2007 AND 10 JANUARY 2008 | |
| Coram: | MR M ALLEN (SENIOR MEMBER) | 11/04/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | In GAA 2015 of 2007: The administration order made on 29 May 2007 is confirmed This order is to be reviewed by 31 March 2009 In GAA 2072 of 2007: The matter is dismissed | ||
| B | |||
| PDF Version |
| Parties: | JED |
Catchwords: | Guardianship and administration Administration Review of order appointing Public Trustee as plenary administrator of estate Represented person suffering from paranoid schizophrenia Consideration of impact of that illness on represented person's ability to make reasonable decisions in relation to financial affairs Finding that represented person is unable to make reasonable decisions and that the needs of the person cannot be met in a less formal manner |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 64, s 82, s 84, s 86 Mental Health Act 1996 (WA) |
Case References: | LGW [2004] WAGAB 4 Re MM (2001) 28 SR (WA) 320 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JED [2008] WASAT 80 MEMBER : MR M ALLEN (SENIOR MEMBER) HEARD : 11 DECEMBER 2007 AND 10 JANUARY 2008 DELIVERED : 11 APRIL 2008 FILE NO/S : GAA 2015 of 2007
- GAA 2072 of 2007
- Represented person
Catchwords:
Guardianship and administration - Administration - Review of order appointing Public Trustee as plenary administrator of estate - Represented person suffering from paranoid schizophrenia - Consideration of impact of that illness on represented person's ability to make reasonable decisions in relation to financial affairs - Finding that represented person is unable to make reasonable decisions and that the needs of the person cannot be met in a less formal manner
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 64, s 82, s 84, s 86
Mental Health Act 1996 (WA)
(Page 2)
Result:
In GAA 2015 of 2007:
The administration order made on 29 May 2007 is confirmed
This order is to be reviewed by 31 March 2009
In GAA 2072 of 2007: The matter is dismissed
Category: B
Representation:
Counsel:
Represented person : Selfrepresented
Solicitors:
Represented person : Self-represented
Case(s) referred to in decision(s):
LGW [2004] WAGAB 4
Re MM (2001) 28 SR (WA) 320
(Page 3)
Summary of Tribunal's decision
1 The Tribunal reviewed an order appointing the Public Trustee as plenary administrator for a young woman who suffers from paranoid schizophrenia. The Tribunal was satisfied that this mental disability, through the shortterm focus and disorganised thinking involved, resulted in the represented person continuing to be unable to make reasonable decisions regarding her financial affairs. The most recent examples of poor decisionmaking were a desire (not accomplished) to use superannuation funds (gained by reason of hardship) to pay for a holiday for the represented person and her boyfriend or, alternatively, to purchase a car - even though the represented person does not hold a driver's licence.
2 The Tribunal considered that the represented person continued to need an administrator and the Public Trustee should continue to have plenary powers.
Background
3 Ms JED is a 31 year old woman in respect of whom, in February 2007, the Tribunal made an order appointing the Public Trustee as her plenary administrator; that order to be reviewed by 26 February 2009. The application for that order was made by a social worker (SH) at Graylands Hospital, where JED was at the time an inpatient. The Tribunal also directed that the administrator was to investigate whether any transactions entered into by JED could be set aside under s 82 of the Guardianship and Administration Act 1990 (WA) (GA Act) and for that purpose should liaise with SH.
4 Less than one month later, in March 2007, JED applied to the Tribunal for a review of the order pursuant to s 86 of the GA Act. On 29 May 2007 the Tribunal revoked the February 2007 order and replaced it with a new order appointing the Public Trustee as JED's plenary administrator, that order to be reviewed by 29 November 2007.
5 In the ordinary course, in October 2007, the Tribunal initiated the procedures for review of the May 2007 order pursuant to s 84 of the GA Act (matter GAA 2015 of 2007) but, shortly thereafter, JED filed a further application pursuant to s 86(1) of the GA Act to have the May 2007 order reviewed (matter GAA 2072 of 2007). The two matters raise the same issues to be determined and proceeded together, being listed for a hearing on 11 December 2007. On that occasion the only
(Page 4)
- person who attended the hearing was JED. After hearing evidence from JED and (by telephone) from Mr JR (an officer of the Public Trustee) I decided to adjourn the hearing so that further evidence could be obtained from the medical practitioner treating JED's mental illness. The matter was relisted for hearing on 10 January 2008 and that hearing was attended by JED and her friend, Mr AS.
6 At the conclusion of the hearing I reserved my decision and this statement of reasons is published to explain the reasons for the decision set out herein.
The issues to be determined
7 In the review of an administration order such as the present the Tribunal must decide whether the existing order should continue to have effect in its original or an amended form, or be discharged. As was pointed out by a full Board of the Guardianship and Administration Board in LGW [2004] WAGAB 4 at [9], the tests to be applied on the review of an order are the same as those that apply on an initial application. Before the Tribunal can appoint, or confirm the appointment of, an administrator, the Tribunal must be satisfied that the person at the time of the review meets the criteria set out in s 64(1) of the GA Act, which relevantly provides that the Tribunal may appoint an administrator of a person's estate 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 ..."
8 A "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".
9 Section 4(2) of the GA Act sets out principles that must be observed by the Tribunal when dealing with proceedings under the GA Act. In summary, and in relation to proceedings involving an administration order, those principles are:
a) The primary concern shall be the best interests of the person in respect of whom the proceedings relate.
b) Every person shall be presumed to be capable of managing his/her own affairs and making reasonable judgments in respect of matters relating to his/her estate, until the contrary is proved to the satisfaction of the Tribunal.
- c) Orders should 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.
d) An order appointing an administrator shall be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
e) In considering any matter the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed at the time, or as gathered from the person's previous actions.
Consideration
Does JED suffer from a mental disability?
10 It was not in dispute in the present proceedings, nor had it been in previous hearings, that JED suffers from the psychiatric condition of paranoid schizophrenia, a condition that had been first diagnosed in mid2004 (report of a psychiatrist, Dr NS, dated 19 February 2007) and as a result of which she had been hospitalised in at least 2005, 2006 and 2007 (report of Mr RSI, a community mental health nurse at the clinic, dated 26 October 2007). JED also suffers from epilepsy.
11 JED acknowledged the existence of these illnesses and the need for medication now and in the future. I am satisfied that JED does suffer from a psychiatric condition, namely paranoid schizophrenia, and as a consequence has a mental disability for the purposes of the GA Act.
Is JED unable to make reasonable judgments in respect of matters relating to all or any part of her estate by reason of that mental disability?
12 At the time of making the February 2007 order the Tribunal had the benefit of two psychiatric reports concerning JED. In a report dated 15 January 2007 Dr RK (a medical officer at Graylands Hospital) expressed the opinion that JED was capable of making reasonable decisions in relation to her personal health care and her living situation, but was not capable of making reasonable decisions in relation to her financial affairs. Dr RK commented that JED's judgments were impaired regarding her behaviour and planning for the future, that she was not able to communicate
(Page 6)
- reasons for her decisions, and had accumulated financial debts that required the financial support of her parents.
13 In a report dated 19 February 2007, Dr NS (a psychiatrist at the suburban clinic at which JED was being treated after being discharged from hospital) expressed the opinion that JED was capable of making reasonable decisions in relation to her personal health care and living situation but she was not sure about JED's capacity to make decisions in relation to financial affairs. Dr NS noted that JED had chronic disorganised thinking and made poor financial decisions, especially when unwell.
14 In the application lodged with the Tribunal that led to the making of the February 2007 administration order, the applicant (SH) stated that JED's:
"... mental illness impacts on her ability to effectively manage her finances, resulting in her accumulating considerable financial debt burden and being unable to make the necessary due payments. This leads to her decompensating further in her mental health status, leading to increased stress and conflict with parents who are finding it increasingly exhausting trying to bail [JED] out of debt."
15 The application noted that JED supported the making of the application for the appointment of an administrator.
16 At the time of the review of the order in May 2007 the Tribunal had further reports from medical practitioners concerning JED. In a report dated 2 April 2007 Dr RK expressed the view that JED was at that time not capable of making reasonable decisions about personal health care and her living situation but he was not sure about her ability to make decisions in relation to financial affairs. Dr RK noted that JED had not been compliant with follow up treatment in the community on her discharge from hospital and that she was likely to be difficult to engage in proper management of her financial affairs.
17 Dr NS provided a further report dated 2 April 2007 in which she expressed the opinion that JED was incapable of making decisions in relation to personal health care, living situation and financial affairs at that time, noting that she was at that time acutely unwell and had recently been readmitted to hospital under the Mental Health Act 1996 (WA). Dr NS commented that JED had disorganised thinking and made poor financial decisions, especially when unwell.
(Page 7)
18 In the present proceedings the Tribunal had a report from Dr WC (a senior psychiatric registrar at the clinic treating JED) dated 12 October 2007. Dr WC thought that JED was incapable of making decisions about personal health care but he was not sure about her ability to make decisions in relation to her living situation and her financial affairs because he was concerned that some of JED's decisions may be based on factors relating to her psychotic symptoms. In a report dated 26 October 2007 Mr RSI expressed the opinion that JED's judgment was impaired at the time, that she was resistant to ongoing treatment for her illness, she exhibited little understanding of her illness and that her medium to longterm management skills were not evident. RSI thought that JED appeared to be able to budget only on a daytoday basis.
19 At the time of the December 2007 hearing I was informed by JED that she had seen Dr WC since the making of the report referred to above and was due to see him again in the near future. Accordingly, the Tribunal sought from Dr WC a further report providing more recent information about his assessment of JED. Dr WC provided a report dated 27 December 2007 in which he made the following main points:
a) JED is chronically psychotic and does not have meaningful insight into her illness, making the management of her illness difficult. He was suspicious that she is not fully compliant with the prescribed oral medication.
b) He has limited information about JED's social circumstances, but believes that she lives alone and maintains a relationship with her boyfriend, having only periodic contact with her family.
c) He suspects that JED's behaviours are influenced by her mental illness at times and possibly by illicit drug use; he believed that JED's ability to make reasonable judgments in respect of her financial affairs would be adversely impacted by the presence of her mental illness and possible episodic illicit substance abuse. He was also concerned that JED had taken a shortterm view of her finances in interviews with him, giving as an example that JED had told him that she intended to use her
- superannuation money on a holiday and was not able to provide any sound answer to his question about how she would manage in the future if she used all of her current funds for that purpose.
20 At the December 2007 hearing JED told me that she had agreed to the administration order in 2007 because she had been told that it would be a shortterm measure only. She now believed that she was able to manage her finances and she wanted to do so because it would give her something to do and increase her feelings of selfimportance. JED said that she had at times borrowed money or received gifts of money from her parents but she minimised the extent of this.
21 For the purposes of the January 2008 hearing the Tribunal obtained a further report from the Public Trustee concerning developments in the administration of JED's financial affairs. In a report provided to the Tribunal a few days before the hearing the Public Trustee advised the Tribunal that in late December 2007 or early January 2008, JED had approached Centrelink and two superannuation trustees in order to apply for hardship access to two superannuation funds held on her behalf amounting to (after tax) approximately $3,600 and $800. The superannuation funds had agreed to pay these amounts to JED and the Public Trustee had become aware of that development only on 4 January 2008, when JED's father notified the Public Trustee that JED expected to receive these funds imminently and intended to purchase a car. The Public Trustee had immediately contacted JED's bank and had learned that one superannuation amount ($3,600) had been received by the bank but not cleared into JED's account. The Public Trustee had arranged for $3,000 of that amount to be paid to the Public Trustee, with the remaining $600 going to JED's account. The Public Trustee was not aware of the identity of the second fund.
22 JED told the Tribunal that she had got the idea to apply for her superannuation money from her boyfriend, AS, and that she had decided that she would use some of the money to pay for a holiday for herself and AS. She said that she had spoken to her trust officer at the Public Trustee office (FR) at about the time that she had become aware that the superannuation trustees had approved the payment to her, but before the money was due to be received. She had told FR of her plans regarding the holiday and he had told her that it was not possible for her to pay for AS's holiday because that would constitute a gift and the Public Trustee was not authorised to make gifts on her behalf. She therefore abandoned the idea of a holiday, although that had been her preferred course of action.
(Page 9)
23 Evidence was given by telephone on 10 January 2007 by Ms H, an officer of the Public Trustee who had taken over the management of JED's affairs from FR - who was on leave. Ms H informed me that there was nothing on the file to indicate that there had been any contact between JED and FR concerning superannuation money prior to Ms H becoming aware of the situation on 4 January 2007 from JED's father. She said that if JED had a conversation with FR of the kind referred to, then it was standard office practice for a file note to be made and placed on the file - and there was no such note on the file. She believed that no such contact could have occurred in those circumstances.
24 It is not necessary for me to determine whether JED did or did not inform FR of the plan to spend the money on a holiday for herself and AS - as it is not in dispute that JED did in fact want to do that.
25 JED also said that at a later stage she had wanted to use some of the money to buy a car, but had been told by Ms H that because she did not have a driver's licence the Public Trustee would not agree to pay for a car. She said that the $600 that had gone into her bank account in the way described above had been used by her to pay for her dog's registration fee and vet's fees for her dog, as well as approximately $100 being spent on food and household supplies. JED said once again that it was important to her that she regain control of her financial affairs because it would increase her sense of selfworth and provide her with something to do - because she was unable to work and became bored and frustrated living alone.
26 I am satisfied that the events described above, when considered in the context of the history of JED's mental illness and her inability to manage her affairs that led up to the making of the order, demonstrate that JED does have a very shortterm approach to the management of her finances and that she demonstrates a degree of impetuosity about how to spend money if she has it. JED did demonstrate some degree of thought regarding her future by saying that she wanted to use some of the superannuation money to pay TAFE fees for a course in child care that she wished to undertake. Nevertheless, had she been able to do it, I have no doubt that she would have spent all or most of the money on a holiday for herself and AS - a decision that would, in her circumstances, have been an unreasonable one.
27 In all the circumstances, I am satisfied that JED is, by reason of her mental illness, unable to make reasonable decisions in relation to all of her financial affairs.
(Page 10)
Is JED in need of an administrator?
28 A person in respect of whom a finding has been made that she is unable to make reasonable judgments in respect of her estate will usually "need" an administrator - in the sense that there is a need for someone to have formal legal authority to make decisions concerning the estate due to the person's inability to act on her own behalf: see the decision of the full Board of the Guardianship and Administration Board in Re MM (2001) 28 SR (WA) 320. However, as the full Board pointed out, a finding that the person is not able act on her own behalf in relation to her estate does not automatically mean that the person is "in need of an administrator" for the purposes of s 64(1)(b) and s 64(2) of the GA Act. There may be no need for a formal order of administration if, for example, there is "no live issue or foreseeable conflict" in relation to the person's estate, there may be no assets that require administration, or any assets may be managed under some other legal authority: Re MM at page 330.
29 JED's financial affairs are relatively straight forward, her only income being Centrelink payments. Her rent is paid directly by Centrelink and the Public Trustee pays approximately $180 per week into JED's bank account, in order to give her as much responsibility as possible for budgeting for herself. The Public Trustee retains funds to cover JED's utilities accounts and the Public Trustee fees. In the past, the Public Trustee has taken responsibility for negotiating the writeoff of JED's debts or, in some cases, has paid off debts by instalments. At the moment, the only debt known to the Public Trustee is to JED's former landlord, which the Public Trustee believes is approximately $247 and which has been paid at the rate of $20 per fortnight. However, the Public Trustee has, at JED's request, suspended the making of those payments until the landlord clarifies the amount of the actual debt.
30 Although it is clear that JED's financial affairs are not particularly complicated it is, in my opinion, both essential and in JED's best interests that her affairs be managed as efficiently as possible in a way that protects the few assets that JED has. As noted, the Public Trustee's role as administrator has resulted in JED's debt burden being effectively reduced. It would have been unfortunate if the superannuation money had been spent in the ways contemplated by JED. It is to be hoped that JED's ability to manage her own affairs will improve over time and that she will be able to demonstrate an ability to manage her affairs and, hopefully, to undertake the TAFE studies that she wants to. This will require a period of stability in the treatment of her mental illness and in the way in which she manages the proportion of her income that the Public Trustee allows her to have by way of an allowance each week.
(Page 11)
Orders
31 Nevertheless, at the present time, I consider that JED is in need of an administrator and that the Public Trustee should continue to administer JED's financial affairs. The administration order made on 29 May 2007 should be confirmed with the Public Trustee as plenary administrator and the order should be further reviewed by 31 March 2009. To dispose of the proceedings I will, in matter GAA 2072 of 2007, dismiss the application, and in matter GAA 2015 of 2007 I will order as follows:
1. The administration order made on 29 May 2007 is confirmed as follows:
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 31 March 2009.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M ALLEN, SENIOR MEMBER
0
0
2