JH
[2014] WASAT 175
•31 DECEMBER 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JH [2014] WASAT 175
MEMBER: MR J MANSVELD (SENIOR MEMBER)
HEARD: 22 AUGUST 2014
DELIVERED : 31 DECEMBER 2014
FILE NO/S: GAA 1293 of 2014
MATTER :JH
Represented Person
Catchwords:
Administration Mental disability Differing diagnoses of mental impairment Unable to make reasonable judgments about estate Need for a limited administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 64(1)(a), s 64(1)(b), s 68, s 68(1), s 84, s 86, s 90
Result:
The Public Trustee is reappointed limited administrator
Summary of Tribunal's decision:
An order for administration was first made for JH in 2011. He had settled a personal injuries claim and was about to receive approximately $300,000. A limited administration order was made covering the personal injuries settlement but excluding his Centrelink and employment income which he was allowed to continue to manage.
In 2014 JH sought review of the order in which the Public Trustee had been appointed his limited administrator.
JH had been the subject of a number of diagnoses over the years, from Attention Deficit Hyperactivity Disorder as a child, schizophrenia as an adult, and most recently, marked personality changes and psychotic episodes resulting from brain damage subsequent to a childhood accident.
Whilst there was a concern at the differing diagnoses disclosed in the psychiatric reports, the symptoms described in the reports were consistent and occurred over a number of years.
JH had been unable to produce a coherent plan as to the management of the funds currently the subject of the administration order. His impulsivity and disorganisation, being the effects of his mental disability, rendered him incapable of formulating such a plan and carrying through, in a rational and reasonable way, a strategy to protect his funds and use them in his own best interests.
Without an administration order protecting those funds, the Tribunal was satisfied that the funds would be at significant risk of rapid dissipation.
The administration order was confirmed.
Category: B
Representation:
Counsel:
Represented person : N/A
Solicitors:
Represented person : Young & Young
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Background
JH is a 26 year old man who has been the subject of an administration order since March 2011 made under the Guardianship and Administration Act 1990 (WA) (GA Act).
On 4 March 2011, BH, the sister of JH, was appointed his administrator to manage his estate except for a Centrelink pension and any employment income. At that time, JH had settled a personal injuries claim for just under $300,000. The effect of the order was to place the management of the settlement sum under the authority of the administrator. The administrator was authorised to expend up to a total amount of $1,500 per annum on gifts on behalf of JH.
Upon review of the order in November 2012, BH was replaced by the Public Trustee with the same functions as given to BH and with a review set for 12 months.
Upon further review in December 2013, the appointment of the Public Trustee was confirmed for a period of five years and the authority to make gifts reduced to $500 per annum.
In March 2014, JH sought review of the order pursuant to s 86 of the GA Act. In his application, JH stated that he wanted to have greater control of his estate and that he had attended a financial counsellor for assistance.
JH advised he was legally represented.
On 3 April 2014, the Tribunal directed that, within 14 days, JH advise the name of his treating psychiatrist, and no later than seven days prior to the hearing set for 30 May 2014, file a report from his financial counsellor setting out how it was intended that he would manage his estate on an ongoing basis.
JH did not comply with the orders made on 3 April 2014.
The Tribunal, by its own enquiries, made contact with the psychiatrist, Dr LR, who had provided a report in respect to JH for review of the administration order in December 2013.
The hearing set for 30 May 2014 was vacated and relisted for 8 July 2014.
The Tribunal received reports from Dr LR on 30 May and 27 June 2014. Dr LR advised that he had not seen JH since 12 December 2013.
The hearing on 8 July 2014 was attended by JH and his legal representative. Both attended by telephone from the office of the legal representative. JH disrupted the hearing to the extent that it needed to be adjourned for the legal representative to receive further instructions.
The hearing was adjourned to 30 July 2014.
JH did not attend the hearing on 30 July 2014. His legal representative sought a further adjournment to enable JH to arrange for a fresh assessment of his capacity to manage his estate. The adjournment was granted and the final hearing was set for 22 August 2014.
On 18 August 2014, the Tribunal was advised by JH's legal representative that he had been instructed that JH no longer wished to pursue his application for review of the administration order.
Subsequent to that advice, JH contacted the Tribunal directly to advise he would be attending the hearing on 22 August 2014 and that he wanted the review to proceed.
JH attended the hearing on 22 August 2014.
The decision was reserved.
Relevant legislation
The relevant legislation is the GA Act.
Section 90 of the GA Act enables the Tribunal, upon review of an administration order, to amend the order, revoke the order or make a new order, including revoking the appointment of an administrator or appointing a new or additional administrator.
The GA Act requires the Tribunal to proceed through a number of steps in order to arrive at a decision about whether to reappoint an administrator for the estate of JH.
A finding must first be made about JH's capacity. The starting point is that he is presumed to be capable of making reasonable judgments about his estate (s 4(3) and s 64(1)(a) of the GA Act).
The Tribunal must also be satisfied that there is a need for an administrator to be appointed. Orders should not be made if JH's needs can be met by other means less restrictive of his freedom of decision and action (s 4(4) and s 64(1)(b) of the GA Act).
If an administration order is made, the Tribunal must decide what should be the scope of those orders. Any order made should reflect the needs of JH (s 4(6) of the GA Act).
As to who should be appointed administrator, s 68 of the GA Act requires the Tribunal to form an opinion as to whether any proposed appointee will act in the best interests of JH and is otherwise suitable to act. The Tribunal shall take into account, as far as is possible, the compatibility of the proposed appointee with JH and with his guardian (if any), the wishes of JH, and whether the proposed appointee will be able to perform the role that he or she is given.
The Public Trustee consents to his appointment as administrator should the Tribunal find that no other person is suitable or willing to be appointed to that role (s 68(1) of the GA Act).
When going through all the steps just mentioned, the Tribunal must, as far as possible, seek to ascertain JH's views and wishes, but ultimately must make a decision in what the Tribunal determines to be in his best interests (s 4(2) and s 4(7) of the GA Act).
The hearing on 22 August 2014
JH submits that he does not have a brain injury or mental impairment, including Attention Deficit Hyperactivity Disorder (ADHD). He says that he no longer sees Dr LR because of the high cost of appointments. He states that he might arrange to see another psychiatrist.
JH disputes the statement of Dr LR that he is a compulsive gambler (see below). JH states that he finds it difficult to comply with what he says are the strict requirements of the administrator when asking for funds. He submits that he is not receiving sufficient interest on the funds invested by the administrator, and expected that he had more funds than reported by the administrator ($224,000 as at 14 August 2014). He states that if he were given the opportunity to manage his estate, he would keep the majority of cash funds in a bank account but would use $50,000 to establish a business. He states that a friend of his, who is currently in prison, has a business idea that, together with an idea that he has, would form the basis of a business. JH was not prepared to say what the business would be because he was concerned that the ideas would be stolen.
The question of JH's capacity
JH has been the subject of a number of diagnoses in his lifetime. The Tribunal has the benefit of psychiatric reports from 2008 to 2012, and most recently in 2014. Many of the earlier reports were prepared in respect of the personal injuries claim mentioned earlier in these reasons.
The reports detail a diagnosis of ADHD at age six, for which JH was prescribed dexamphetamine, and a car accident during his teenage years. In a report from 2009, Dr CC, a psychiatrist, states that the then diagnosis of JH was ADHD, Inattentive type. JH was said to be distracted, disorganised, forgetful and disruptive when not treated, but calmer, more attentive and able to carry out instructions when treated. Dr CC states in a report dated 5 October 2009 to JH's legal representative:
In the event that [JH] receives a large cash settlement he may be prone to rash and ill‑considered spending. He has ample past history of irresponsible behaviour[.]
In 2010, Dr CC assessed JH as having the capacity to give instructions to his legal representative in the settlement of the personal injuries claim.
In 2011, another psychiatrist, Dr JC, assessed JH as having Disorganised/Undifferentiated Schizophrenia and that 'this was initially contextualised as ADHD in his childhood' (letter to general practitioner dated 12 April 2011). Dr JC goes on to state:
Mental state dominated by overt disorganised speech and behaviour marked disinhibition, noises, restlessness etc. He cannot sit still and always on the go. Affect inappropriate and no obvious mood signs. Thought process tangential and disordered and content concrete. Auditory and visual hallucinations. Extremely distractible. Vitals normal and no focal neurological signs. Premorbid personality dominated by conduct.
Dr LR who attended to JH for three consultations in November and December 2013, states in a report dated 26 June 2014:
… [JH] has suffered brain damage and this results in, from time to time, marked personality changes and indeed psychotic episodes. This renders his giving of history as unreliable and changeable as well as predisposing him to strong emotional reactions to situations which he finds frustrating. He does not have the capacity to properly manage his affairs, based on the past history of impulsive behaviours and of compulsive gambling and unrealistic estimations of his own capacity.
Whilst I have a concern at the differing diagnoses disclosed in the psychiatric reports, the symptoms described in the reports are consistent and occur over a number of years.
The symptoms are also consistent with the presentation of JH in these proceedings.
JH has been unable to produce any evidence giving a contrary opinion of his mental impairment to those given in the psychiatric reports before the Tribunal.
I am satisfied, on the evidence, that JH, by reason of a mental disability, which likely is a combination of an acquired brain injury and a psychiatric condition, is unable to make reasonable judgments about his estate.
The need for an administration order
The administrator reports that JH remains in consistent contact requesting funds for fuel and food, even though he receives a regular allowance in addition to his Centrelink pension and any employment income.
The administrator states that JH has at his disposal approximately $700 per fortnight for his daily needs such as food, cigarettes and fuel. His accommodation and other vehicle expenses are paid by the administrator and JH will also irregularly request payment for such things as medical accounts.
The administrator reports that JH generally refuses to provide the necessary documentation (invoices or receipts) to enable payment to be made to a supplier or reimbursement to be made to him. He has also on several occasions spent funds on items other than that agreed to with the administrator.
The administrator states that he has had contact with a number of people who have assisted JH, including JH's siblings, a friend of JH, a mental health caseworker, an employment service and JH's legal representative.
On all the evidence, I am satisfied that JH remains in need of an administrator.
JH has been unable to produce a coherent plan as to the management of the funds currently the subject of the administration order. His impulsivity and disorganisation, being the consequences of his mental disability, render him, in my view, incapable of formulating such a plan, and carrying through, in a rational and reasonable way, a strategy to protect his funds and use them in his own best interests.
Without an administration order protecting those funds, I am satisfied that the funds would be at significant risk of rapid dissipation.
The evidence suggests that JH manages passably on the Centrelink pension and allowances from the administrator. He should be given the opportunity to maintain that level of independence in his current circumstances.
For these reasons, I take the view that it is in JH's current best interests to confirm the order made on 16 December 2013 appointing the Public Trustee as his limited administrator.
The order is set to be reviewed in five years.
Order
On an application for review under s 86 of the Guardianship and Administration Act1990 (WA) of an order dated 16 December 2013 concerning the represented person heard before Senior Member J Mansveld on 22 August 2014, the Tribunal declares that the represented person:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to part of his estate; and
(b)is in need of an administrator of his estate,
and the Tribunal orders:
1.The order is confirmed as follows:
The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed limited administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act1990 (WA) of a plenary administrator save and except any Centrelink or employment income earned by the represented person.
2.The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
3.This order is to be reviewed by 23 December 2019.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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