JF and MF
[2009] WASAT 163
•25 AUGUST 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JF and MF [2009] WASAT 163
MEMBER: MS D DEAN (MEMBER)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
HEARD: 14 JULY 2009
DELIVERED : 25 AUGUST 2009
FILE NO/S: GAA 1355 of 2009
BETWEEN: JF
Applicant
AND
MF
Represented Person
Catchwords:
Application for administration - Capacity to make reasonable judgments - Presumption of capacity not displaced - Application dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 64
State Administrative Tribunal Act 2004 (WA), s 78, s 78(1)
Result:
The application for administration is dismissed
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Represented Person : Selfrepresented
Solicitors:
Applicant: Self-represented
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
MF is a young woman with an acquired brain injury. In 2005, she entered into a contract of sale for a property she owned at the time. An application was made to the Tribunal by her mother for the appointment of an administrator to act on MF's behalf in relation to matters relating to the sale of the property. The Tribunal appointed MF's brother limited administrator to deal with issues relating to the sale of the property. Three years later, in March 2009, on the basis that the legal proceedings in relation to the sale of the property had been completed, the Tribunal revoked the administration order.
On 26 May 2009, a family friend applied to the Tribunal for the appointment of a limited administrator 'to assist [MF] in her legal matters' being an application to the Supreme Court in relation to the property sale. Evidence was provided to the Tribunal that, although MF is slower than some in processing information she was capable of understanding even complex legal matters and was capable of instructing her legal representative. The Tribunal was satisfied on the basis of this evidence that there was no need for the appointment of an administrator and dismissed the application.
Background
MF is a young woman who sustained a brain injury in a motor vehicle accident as a child. In 2005, MF entered into a contract of sale for a property she owned at the time. A solicitor, contacted by MF in regard to the sale of the property, found that she did not appear to understand the sale documents she had signed or the nature of the advice he was providing.
On 23 February 2006, CF, mother of MF, applied to the Tribunal for an administration order. In her application, the mother stated that, in her view, MF is able to manage all aspects of her estate other than those matters relating to the sale of the property.
On 28 March 2006, the Tribunal appointed GF, brother of MF, limited administrator of MF's estate to deal with issues relating to the sale of the property. The order was to be reviewed in five years.
In November 2008, the Public Trustee, the authority that audits and oversees private administrators, applied to the Tribunal for a review of the order.
On the basis that the legal proceedings relating to the sale of the property had been completed, and evidence that MF was capable of managing all other aspects of her estate, the Tribunal revoked the administration order on 17 March 2009.
On 26 May 2009, JF, a family friend, applied to the Tribunal for the appointment of an administrator 'to assist [MF] in her legal matters'.
These written reasons reflect the brief oral reasons given at the conclusion of the hearing on 14 July 2009 and are provided pursuant to s 78(1) of the State Administrative Tribunal Act2004 (WA) (SAT Act) at the request of JF.
Legislation
The principles to be observed by the Tribunal when making determinations in relation to administration applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (GA Act).
These principles relevantly are that the primary concern of the Tribunal shall be the best interests of a person in respect of whom an application is made and that every person shall be presumed capable of 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.
Section 64 of the GA Act provides for the appointment of an administrator.
(1)Subject to [s] 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under [s] 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 …
Mental disability is defined to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia (s 3 of the GA Act).
Section 78 of the SAT Act provides for the provision of written reasons for a decision on request by a party.
The evidence
The Tribunal is satisfied that MF has an acquired brain injury and therefore satisfies the criteria of a mental disability as defined in s 3 of the GA Act. The existence of a mental disability does not of itself mean that an administration order can be made. There must be evidence to displace the presumption of the capacity (s 4(2)(b)) to make reasonable judgments about the estate by reason of that disability (s 64). The question for the Tribunal is whether the person is, by reason of her disability, unable to make reasonable judgments about any or all of her estate.
In this case, for the purposes of deciding this question, the Tribunal had before it two reports from Dr S, a consultant endocrinologist; a report from MF's general practitioner (GP); a report from GC, a representative of the Office of the Public Advocate, and evidence provided orally at the hearing.
In his report of March 2007, Dr S stated that, because of her brain injury, MF has 'limited capacity to understand complex documents'. Dr S further stated in this report that in his opinion 'it is unlikely that she comprehended the full nature of the documents that she signed that led to the disposal of the land'.
In a later report he provided to the Tribunal dated 2 June 2009, Dr S said in his opinion MF is 'incapable' of making reasonable decisions in relation to her financial affairs 'depending on complexity'. He said MF 'may require extra explanation but [is] capable of making the decision'. He said she is capable of executing an enduring power of attorney which is a less restrictive alternative to the appointment of an administrator.
Given the contradictions in the report of 2 June from Dr S, and the differences between this and his report of March 2007, the Tribunal requested his attendance at the hearing by telephone to clarify his evidence in relation to MF's capacity. Oral evidence provided by Dr S at the hearing on 14 July 2009 was that he had made a 'mistake' in stating that MF was 'incapable' in his report of 2 June 2009. He explained that MF is slower than others to grasp concepts but with time and explanation she is 'quite capable of making important decisions' [T:22]. She can make complex financial decisions if given time and the opportunity to ask questions. Given all of this, he said, she can reach a 'very rational and sensible conclusion' [T:24]. He described her ability to manage the complexities of her insulin dependent diabetes and said that from this one could extrapolate an ability to understand and make rational and reasonable decisions about other complex matters including instructing a solicitor. MF acknowledged that when things are explained to her she is able to understand complex matters.
In his report dated 15 June 2009, MF's GP of more than 10 years stated that he was 'not sure' of MF's capacity to make reasonable decisions in relation to her financial affairs and was 'not sure' of her capacity to execute an enduring power of attorney. The GP provided no clarifying comments in relation to his assessment of MF's capacity.
At the request of the Tribunal, GC, from the Office of the Public Advocate, provided a written report to the Tribunal in which he said that he had been advised by PR, a solicitor currently acting for MF in relation to a possible appeal to the Supreme Court, that he had seen MF twice and was prepared to accept instructions from her. PR also advised GC that MF had signed an authority allowing JF, the applicant in this matter, to instruct on her behalf. PR accepted this authority and MF gave evidence that, with the support of JF she is able to instruct PR.
Further evidence of MF's capacity to make reasoned decisions in relation to her estate was provided by GC who gave evidence that the several hundred thousand dollar proceeds from the sale of the property have been and are currently being managed by MF with no suggestion from any parties that she is not capable of doing this appropriately.
In considering whether the presumption of capacity had been displaced, the Tribunal gave little weight to the evidence provided by the GP who, with no qualifying explanation, was 'unsure' of MF's capacity to make her own reasoned decisions. On the other hand, the Tribunal found the evidence of Dr S, particularly his oral evidence that MF, with adequate time and appropriate explanation is capable of making decisions, even those of a very complex and legal nature, compelling and convincing.
The Tribunal was satisfied from the evidence provided by GC, Dr S and MF herself, that with support from a trusted friend she is capable of instructing a solicitor. She has provided an authority that has been accepted by her solicitor that gives her friend JF the authority to instruct on her behalf. JF said he is available and willing to provide support and explanation to MF where and when required.
The decision
The Tribunal is not satisfied from the evidence currently before it that the presumption of capacity has been displaced. The Tribunal accepts that MF may be slower than some in processing complex information but finds that, provided she is given adequate time and appropriate explanations, MF is able to do so and make reasoned decisions accordingly. MF has the support of her trusted friend JF to ensure that these requirements are met.
The Tribunal dismissed the application for the appointment of an administrator.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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