JNS
[2017] WASAT 162
•4 DECEMBER 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JNS [2017] WASAT 162
MEMBER: DEPUTY PRESIDENT, JUDGE PARRY
MR D MACLEAN (MEMBER)
MS K WHITNEY (MEMBER)
HEARD: 4 DECEMBER 2017
DELIVERED : 4 DECEMBER 2017
PUBLISHED : 7 JUNE 2018
FILE NO/S: GAA 3413 of 2017
BETWEEN: JNS
Represented Person
Catchwords:
Guardianship and administration - Review by Full Tribunal of determination of single member to appoint limited guardian and plenary administrator - Represented person has congenital intellectual disability and autism - Whether presumption of capacity displaced - Whether need for guardian or administrator - Significant informal support network
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(3), s 17A, s 43, s 64, s 86
State Administrative Tribunal Act 2004 (WA), s 27
Result:
Guardianship and administration orders set aside
Summary of Tribunal's decision:
J is a 20 year old man with a mild congenital intellectual disability and autism. He spent most of his childhood in care. Before his eighteenth birthday, the Government Department responsible for his care applied for guardianship and administration orders to be made for J with effect from when he would turn 18. A limited guardianship order and a plenary administration order were made by the Tribunal.
J sought the revocation of the guardianship and administration orders. A single member confirmed the orders. J sought review of that decision by a Full Tribunal.
The Full Tribunal determined that the 'fundamental presumption of capacity underlying the [Guardianship and Administration Act 1990 (WA)]' was not displaced on the evidence before it. The recent medical evidence was equivocal and other evidence indicated that there has been 'some relatively significant improvement in J's practical decision-making and development'. The evidence also indicated growing insight by J concerning his disabilities.
The Full Tribunal also determined that it is not satisfied that there is a need for a guardianship order or an administration order to be made, because of J's increased awareness and insight into his disabilities and the existence of a significant informal support network available to assist J and, if necessary, to seek guardianship and administration orders in the future.
The guardianship and administration orders were set aside.
Representation:
Counsel:
| Represented Person | : | In Person |
Solicitors:
| Represented Person | : | In Person |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Background
J is a 20 year old man who has a congenital intellectual impairment, as well as a diagnosis of autism and a chromosome abnormality. J was taken into care as a baby and remained under the protection of what was then the Department of Family and Community and is now the Department of Communities; Disability Services throughout most of his childhood. He lived for much of that time with a foster parent who he regards as his mother, Ms F, and she and her husband have played a significant role in J's life. Some time before J turned 18 he was taken to live elsewhere for various reasons and after that an application was made to this Tribunal for the appointment of a guardian and an administrator for J. Those orders were made in 2015 with effect from when he turned 18.
In August of 2017, J applied to the Tribunal, under s 86 of the Guardianship and Administration Act 1990 (WA) (GA Act), for a review of those orders, seeking that they be revoked. J's application for the revocation of the orders was heard by a single member of the Tribunal on the 25 October 2017. The member decided to confirm the limited guardianship order and the plenary administration order.
The limited guardianship order appointed the Public Advocate as a limited guardian for J, with authorities to decide where he is to live, to decide with whom he is to live, to decide whether and where he should work, to make treatment decisions for him, to determine what contact if any he should have with other people, to determine what services he should have, and to decide what education and training he should receive.
The administration order that was made was to appoint the Public Trustee as plenary administrator that is, as an administrator making decisions in relation to all of J's financial affairs.
J lives in a supported accommodation, a group housing development operated by Teem Treasure, and has lived there since he was about 17.
J receives a fortnightly disability pension, in addition to, and importantly, a package of funding provided by the Department of Communities; Disability Services, with the benefit of a Local Area Coordinator. That funding equates to about $157,000, a significant sum of money, most of which goes to Teem Treasure to provide the accommodation where J lives currently. In addition, about two-thirds of J's disability support pension also goes to Teem Treasure. J has a $150 a fortnight allowance, as well as other expenses paid out of his disability support pension.
J sought review under s 17A of the GA Act by a Full Tribunal of the decisions made on 25 October 2017 by the single member to make the limited guardianship order and the plenary administration order.
Section 17A of the GA Act authorises a Full Tribunal, comprising a judicial member of the Tribunal and two other members, to review, on the merits, the decision of the single member. The task of the Tribunal on review is not to review the process before the single member, but rather to make the correct and preferable decision under s 27 of the State Administrative Tribunal Act2004 (WA) in relation to the subject matter of the review, which in this case is J's original applications under s 86 of the GA Act for the revocation of the guardianship order and the administration order.
Legislative framework
As was the case before the single member, the first question the Full Tribunal must determine in these proceedings is whether J is a person for whom a guardianship and an administration order can be made. The GA Act contains a fundamental presumption which is set out in s 4. Under s 4(3) of the GA Act:
Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
That presumption is the fundamental presumption of capacity underlying the Act. There must be cogent evidence of disability in order for the presumption to be displaced.
There are other principles set in out in s 4 of the GA Act which we are required to have regard to, and we do. These principles include that, in dealing with this matter, the primary concern of the Tribunal is the 'best interests' of the represented person, or the person in respect of whom the application is made. Our decision must be such that its primary concern is J's best interests.
Section 4 of the GA Act also contains a principle that:
A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person’s freedom of decision and action.
The first question is whether J is a person for whom a guardianship order and an administration order can be made and the starting point under the GA Act is that J is presumed to be capable of making his own decisions, both in relation to his personal circumstances and his financial affairs.
Section 43 of the GA Act relates to the making of a guardianship order and it states in sub-section (1) as follows:
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.
The presumption that we referred to, which is that J is presumed to be capable of looking after his own health and safety and making reasonable judgments in respect of matters relating to his person, can only be displaced under the GA Act if there is cogent evidence that he is incapable of looking after his own health and safety, or is unable to make reasonable judgments in respect of matters relating to his person, or is in need of oversight, care or control in the interests of his own health or for the protection of others.
Section 64 of the GA Act relates to making an administration order, and it states in sub-section (1) as follows:
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.
J is presumed to be capable of managing his own affairs and making reasonable judgments in respect of matters relating to his own financial estate, unless that presumption is displaced by cogent evidence, and under s 64 that cogent evidence must satisfy the Tribunal that he 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.
Is J a person for whom a guardianship order or an administration order can be made?
The evidence in the form of medical evidence provided by J's general practitioner, Dr X, in a report to the Tribunal dated 14 August 2017, indicates, and there is no question, that J has an intellectual disability. In that report, however, Dr X says that although J has a disability and that disability is a 'static' disability, the doctor is 'unsure' as to whether J is capable or incapable of making reasonable decisions about his personal and financial affairs.
Addressing firstly the administration order, as previously stated, the presumption is displaced if the Tribunal is satisfied that J is unable, by reason of a mental disability, to make reasonable judgments in respect of his financial affairs. The term 'mental disability' includes an intellectual disability: s 3(1) GA Act.
The Tribunal must be satisfied, in order to be able to make an administration order, that J is unable by reason of his mental disability, in terms of his intellectual disability, to make reasonable judgments in respect of matters relating to all or any part of his estate. As we have said, the evidence of the general practitioner is that he is 'unsure'. That certainly does not displace the presumption.
There is also evidence before the Tribunal, in the form of a doctor's guide form provided in 2015, when the Tribunal first made guardianship and administration orders for J, which indicates, in the form of a report which simply ticked a box, that Dr D, J's general practitioner who had known him for one year at that time, considered that because of 'mild intellectual impairment' and autism, J was incapable of making reasonable decisions in relation to his personal health care, living situation and financial affairs. The doctor gave no explanation, and there is no further indication of the basis of his opinion at that time. That opinion was given well over two and a half years ago.
There is also a report by Dr W, a psychologist who saw J in July 2015 for the purposes of, it appears, an application made for the support pension and other services available through the Department of Communities; Disability Services. In that report, or as part of that report, Dr W conducted the well-known Wechsler Adult Intelligence Scale and determined that J has a low IQ which he said was in the first percentile, indicating that it is within the lowest one percentile. He expressed the opinion that, although J has a mild intellectual disability, based on the Wechsler Adult Intelligence Scale, he in fact demonstrated significant impairments in decision-making which Dr W said '…is likely to have impacts on his ability to maintain employment'.
That report was prepared particularly for the purposes of the disability support application and refers to J being unable to function in an open workplace. The report was not prepared for the purposes of an application for a guardianship order or an administration order.
That is the sum total of the medical and psychological evidence before the Tribunal.
We are not satisfied, on the basis of the medical evidence before the Tribunal and related evidence that the presumption that we have referred to is displaced.
Although the Tribunal in 2015 had recent evidence both from a psychologist and from a general practitioner, that evidence is now two and a half years old. Although, as Dr W said and as the general practitioner now says, J's intellectual disability is 'static', that is to say it is likely to remain with him throughout his life, the evidence before us indicates that there has been some relatively significant improvement in J's practical decisionmaking and development. That evidence is clear both from what J told the Tribunal, and also from other evidence; in particular the evidence in the form of a social worker or service provider report prepared by Mr T, who is the managing director of Teem Treasure, the operator of J's accommodation.
In that report, Mr T says that J '… continues to develop his life skills to make personal decisions …'. Although Mr T expressed the concern that J puts himself at risk by not following his diabetes procedures, and at times eating inappropriately, he also says that J '… is quite independent and usually makes his own appointments for [the] GP and [the] [d]entist' and that '…his level of comprehension is improving …'.
The general indications from that report are that there has been some relatively significant improvement in J's decision-making. The effect of the evidence of the change in J's practical capacity since July 2015 is significant, because, in our view, it has the effect that the Tribunal cannot safely rely on Dr W's opinion or the general practitioner's opinion, given that the presumption is fundamental and must be displaced, if it is displaced at all, by cogent evidence.
We also note that there is one other aspect of Mr T's report that we consider to be significant, and that is that Mr T says that J 'knows his disability more', indicating a growing insight.
In all of those circumstances and having regard to the evidence before the Tribunal, we are not satisfied that the presumption is displaced.
We note that the delegated guardian raised with the Tribunal whether there should be an adjournment of the proceeding to enable a further cognitive assessment to be obtained, indicating that the Public Advocate may take a different view if the further medical evidence contemplated by the delegated guardian were to indicate that J positively has capacity to make reasonable decisions about his personal and financial affairs.
That would, however, be reversing the presumption of law set out in the GA Act. J is presumed to be capable of making decisions for himself until the contrary is proved to the satisfaction of the State Administrative Tribunal. In this case, the contrary has not been proved to the satisfaction of the State Administrative Tribunal.
Is there a need for the appointment of a guardian or an administrator?
Furthermore, and in any case, we are not satisfied that there is a need for the appointment of a guardian or an administrator in the circumstances of this case for the following reasons.
An aspect of need is whether there is a less restrictive alternative. Section 4(4) of the GA Act provides that '[a] guardianship or administration order shall not be made if the needs of the person … could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action'. That principle applies even in a situation where the Tribunal does consider that the presumption of capacity is displaced.
The Tribunal is not satisfied that there is a need for the appointment of a guardian or an administrator in the circumstances of this case on the evidence presented to us for the following reasons.
First, we are satisfied that J has demonstrated increased awareness and insight into his disabilities. He does not pretend that he has no disabilities. He understands that he does. When asked by the Tribunal what he would do when faced with certain decision-making that he would be required to undertake, including, for example, reviewing a lease, he indicated to the Tribunal that he would not have the capacity to be able to review the lease on his own and would seek assistance. As we have said, Mr T says similarly that J, in the words of Mr T, 'knows his disability more'. That indicates a growing insight and awareness. That is one of the factors on account of which the Tribunal is not satisfied that there is a need.
The second factor on account of which the Tribunal is not satisfied that there is a need for the appointment of a guardian or an administrator in this case is that there is a significant informal support network available to J to consult if decision-making is too difficult in relation to particular matters. The informal network includes Ms F, the person who he refers to as his mother, and in addition his uncle, Mr W, who gave evidence before the Tribunal, and other friends.
Furthermore, the informal support network available to J includes, importantly, the Government through the Department of Communities; Disability Services, which has put in place a very significant support package, most of which is given directly to J's accommodation. That informal support network, comprising all of those elements, is the second factor on account of which the Tribunal is not satisfied that there is a need, in all the circumstances of this case, for formal orders.
The final factor is that, as a result of those informal mechanisms, the Tribunal is confident that if J should need assistance, and if J proves to be unable to make decisions and there is a concern for his welfare as a result, that one or all of those informal support people or organisations will bring the matter back before the Tribunal for formal guardianship and administration orders to be made if necessary.
For all of those reasons the Tribunal is not satisfied that there is a need in this case.
It is unnecessary, therefore, for the Tribunal to address three other questions which would be addressed if an order were made, those being the authorities that should be given, the person who should be appointed and the length of time for the order.
The Tribunal takes into account the views expressed to it by both the Public Trustee and the Public Advocate. The Tribunal is satisfied that the Public Trustee and the Public Advocate have acted in the best interests of J since he turned 18.
The Public Trustee recommends that J continues to require an administrator, and the Public Advocate recommends that a guardianship order, although limited in functions, should be reimposed by the Tribunal. A concern expressed by the delegated guardian is that J may, and he has in the past, prove to be suggestible by bad influences. The Tribunal notes those concerns. However, the informal mechanisms and informal supports that we have referred to, in our view, significantly mitigate any concern about J being taken advantage of.
In addition, in terms of the Public Trustee's concern, the Tribunal notes that the bulk of the money in relation to which decision-making can occur for J is in the province of the Department, and we have no doubt that the Department will continue to provide oversight in relation to that money.
As far as the disability support pension is concerned, as previously stated, the presumption of capacity is not displaced and the Tribunal is not satisfied that there is a need for an administrator to manage J's disability support pension.
Conclusion
For the reasons given, the Tribunal is not satisfied that J 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 the Tribunal is not satisfied that J is in need of an administrator for his estate for the purposes of s 64 of the GA Act.
Further, for the reasons given, the Tribunal is not satisfied that the presumption of capacity is displaced in relation to guardianship as we are not satisfied on the evidence before the Tribunal that J is incapable of looking after his own health or safety, or that he is unable to make reasonable judgments in respect of matters relating to his person, or that he is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
The Tribunal is also not satisfied on the evidence that there is a need for a guardian for the purposes of s 43 of the GA Act.
Orders
For these reasons, the orders of the Tribunal are as follows:
1.The application for review is allowed.
2.The guardianship order confirmed on 25 October 2017 appointing the Public Advocate as the limited guardian for J is set aside.
3.The administration order confirmed on 25 October 2017 appointing the Public Trustee as plenary administrator of the estate of J is set aside.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
ASSOCIATE7 JUNE 2018
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