JPA and SA
[2012] WASAT 22
•7 FEBRUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JPA and SA [2012] WASAT 22
MEMBER: MS F CHILD (MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
DR A GARTON (SENIOR SESSIONAL MEMBER)
HEARD: 8 SEPTEMBER 2011 AND 18 OCTOBER 2011
DELIVERED : 7 FEBRUARY 2012
FILE NO/S: GAA 2111 of 2011
GAA 2331 of 2011
BETWEEN: JPA
Applicant
AND
SA
Represented Person
Catchwords:
Guardianship and administration - Applications for appointment of guardian and for review of administration order - Represented person with diagnosed mental illness - Whether person for whom guardianship and administration order may be made - Whether in need of guardian and administrator Whether a need for guardian to protect represented person from litigious behaviour of his mother Wishes of represented person Guardianship application dismissed Less restrictive alternative to the appointment of guardian to determine whether represented person should be involved in legal proceedings Continuing need for appointment of administrator to manage his financial affairs and conduct legal proceedings on his behalf Confirmation of appointment of Public Trustee as administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 17A, s 43(1), s 45(2)(g), s 45(2)(h), s 64(1), s 84, s 86
Mental Health Act 1996 (WA)
Result:
Administration order confirmed on review
Guardianship application dismissed
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented Person : Ms S Shelvanayagam
Solicitors:
Applicant: Self-represented
Represented Person : Mental Health Law Centre
Case(s) referred to in decision(s):
Public Advocate and CEF [2010] WASAT 54
SA [2010] WASAT 186
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The mother of a young man with a diagnosed mental illness applied to the Tribunal in July 2011 for the appointment of a guardian and administrator for him. She proposed the appointment of herself or the young man's sister as the administrator and herself as his guardian. The Tribunal had appointed the Public Trustee as the plenary administrator of the young man's estate in September 2010. That order was due for review in September 2011.
At the time of the applications and review the young man was an inpatient in hospital and being treated as an involuntary patient under the Mental Health Act 1996 (WA) having had a relapse of his longstanding mental illness. At the conclusion of the proceedings the represented person was again living in the community with support from the mental health team.
The Tribunal determined that the represented person remained a person for whom an administrator could be appointed and confirmed the appointment of the Public Trustee as the administrator of his estate.
The Tribunal also found that the young man was a person for whom a guardian could be appointed but dismissed the application because it found there were less restrictive alternatives available to meet his needs. The Tribunal had regard to the expressed wishes of the represented person who opposed the appointment of a guardian and, in particular, the appointment of his mother.
The applications
The Public Trustee was appointed plenary administrator of the estate of the represented person by order dated 6 September 2010. That order was confirmed on 21 January 2011 following a review by the Full Tribunal, pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act), brought by his mother, the present applicant, (applicant mother). The administration order was due for periodic review pursuant to s 84 of the GA Act by 6 September 2011.
By new applications filed in July 2011, the applicant mother of the represented person sought her appointment as his guardian and the appointment of herself or the sister of the represented person as the administration of his estate. The applicant mother also sought review of the existing administrator order pursuant to s 86 of the GA Act. Notably, the sister of the represented person did not attend either hearing despite the proposal for her appointment.
The current applications were first heard on 8 September 2011 at which the Mental Health Law Centre sought an adjournment on behalf of the represented person in order to consider material filed by the applicant mother. The application for the adjournment was supported by the represented person's case manager from the mental health team and by an advocate from the Council of Official Visitors (COV). The application to adjourn was opposed by the applicant mother on the basis that there was a need for urgent orders to be made. The Public Advocate's representative (Public Advocate) submitted that the matter should proceed and the application for a guardianship order be dismissed.
The Tribunal decided to adjourn. The applicant mother advised that she was travelling overseas and would attend the next hearing by telephone.
At the reconvened hearing, the represented person, the case manager and representatives from the COV and the Public Advocate all attended in person. Although the Tribunal was able to connect with the applicant mother by telephone immediately prior to the hearing, numerous attempts to reconnect the call for the hearing were unsuccessful. The Tribunal considered whether it should continue with the hearing in the absence of the applicant mother as it would be unable to hear further from her.
All parties present agreed that the represented person was severely distressed by attending hearings before the Tribunal and by the continuation of the proceedings which he vehemently opposed. The presentation of the represented person at the Tribunal at both the first and the reconvened hearing left the Tribunal in no doubt as to the level of discomfort he felt during the proceedings; he was visibly shaking and clearly distressed by the matters discussed. The COV's submission is that the represented person's consultant psychiatrist continued the involuntary order under the Mental Health Act 1996 (WA) (MH Act) as the Tribunal hearings were contributing to the represented person's psychiatric problems. In her written submission the applicant supports this position and states that attending hearings at the Tribunal exacerbates the represented person's mental condition. Counsel for the represented person indicated that she had only partial instructions because the represented person became so distressed dealing with the written submissions made by the applicant that she was unable to continue the interview with him and so was acting on general instructions only.
The Public Advocate opposed the adjournment of the first hearing and argued that the applications should be dismissed. The Public Advocate supported the Tribunal continuing the reconvened hearing in the absence of the applicant. The Public Advocate's submission was that it was not in the represented person's best interests to adjourn, and further, that the applicant's submissions were already before the Tribunal, as she had appeared and spoken to her applications in the previous hearing and had since made written submissions. The case manager supported the hearing continuing.
The Tribunal accepted the submission that it would not be in the represented person's best interests to adjourn the hearing. The Tribunal decided to proceed with the hearing given that the obligation to act in the best interests of the represented person is the primary consideration for the Tribunal and in the circumstances overrides the obligation to hear further from the applicant.
Legislation
The relevant provisions of the GA Act in this matter are as follows.
Section 43(1) of the GA Act provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
…
(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 …
Section 64(1) of the GA Act provides that the Tribunal may appoint an administrator of the estate of a person if it is satisfied that the person is unable, by reason of mental disability, to make reasonable judgments about all or any of his estate and is in need of an administrator. These matters must be determined in an initial application or on review of any order made.
In dealing with proceedings commenced under the GA Act the Tribunal must observe the principles set out in s 4(2) of the Act. Those principles are:
1)The Tribunal's primary concern must be in the represented person's best interests.
2)The represented person is presumed capable of looking after his own health and safety; of making reasonable judgments in respect of his person; of managing his own affairs; and of making reasonable judgments in respect of matters concerning his estate, until the contrary is proven to the satisfaction of the Tribunal.
3)A guardianship or administration order shall not be made if the represented person's needs could be met by other means less restrictive of his freedom of decision and action.
4)A plenary guardian shall not be appointed if a limited appointment would be sufficient to meet the represented person's needs.
5)Any order must be in terms that impose the least restrictions possible in the circumstances.
6)Finally, the Tribunal must seek to ascertain, as far as possible, the represented person's views and wishes as expressed, in whatever manner, from time to time, or as gathered from his previous actions.
Background
SA (represented person) is a 35yearold man with a long-standing diagnosis of paranoid schizophrenia. He reportedly has had a number of admissions to hospital due to his illness and, at the time of the applications, was an inpatient at the Alma Street Centre, Fremantle Hospital. During the proceedings the represented person remained an involuntary patient under the MH Act but by the time of the final hearing had been discharged on a community treatment order (CTO).
The represented person is married, but separated from his spouse in 2008. He is the eldest of four children and his parents live either in Western Australia, South Australia or Turkey.
Numerous documents on the Tribunal's file show that the represented person has been involved in proceedings in the Magistrates, District and Supreme Courts, in many cases in matters involving his mother. Some of these proceedings date back some years. Reference is made to some proceedings in a previous decision of the Tribunal: SA [2010] WASAT 186 at [45].
… It appears that the family has been involved in various other legal proceedings. [The represented person] has in the past seemingly become embroiled in them, if not against his will, then without the ability to effectively have a say in the proceedings and their running. It seems from [the Public Advocate's representative's] comments to the Tribunal that [the represented person] may well be unhappy with some or all of these actions and, from the evidence of [the then mental health case manager], he seems very uncertain of the status of the various actions. The extent to which [the represented person] might still be caught up in any proceedings is unclear. Whether there are matters in which he has an interest that need to be advanced is not clear, nor is the extent to which he may be exposed to costs or other adverse findings in matters where he is a party. Action needs to be taken to investigate these matters and if appropriate to take action to secure his position. …
History of applications to the Tribunal
Counsel submits that from April 2008 to the present the mother of the represented person has made a number of applications to the Tribunal in respect of the represented person, all of which have been dismissed. The following is a summary of the applications made to the Tribunal in respect of the represented person prior to the current applications before the Tribunal.
| Application Number | Date | Applicant | Application Type | Outcome |
| GAA 955/2008 | 23/4/08 | Filed in name of parents | Section 104A(1) of GA Act Application for recognition of foreign enduring power of attorney | Dismissed |
| GAA 1730/2008 | 24/7/08 | As above | Section 40(1) of GA Act Application for an administration order | Dismissed |
| Application Number | Date | Applicant | Application Type | Outcome |
| GAA 1731/2008 | 24/7/08 | As above | Section 40(1) of GA Act Application for a guardianship order | Dismissed |
| GAA 2103/2008 | 5/9/08 | As above | Section 17A of GA Act Review of decision of single member | Dismissed |
| GAA 2104/2008 | 5/9/08 | As above | Section 17A of GA Act Review of decision of single member | Dismissed |
| GAA 2210/2008 | 5/9/08 | As above | Section 17A of GA Act | Dismissed |
| GAA 947/2010 | 1/4/10 | Mother | Section 104A(1) of GA Act Application for recognition of foreign enduring power of attorney | Dismissed |
| GAA 949/2010 | 1/4/10 | Mother | Section 109(1)(c) of GA Act Application for revocation of an enduring power of attorney | EPA revoked |
| GAA 960/2010 | 6/4/10 | Sister | Section 40(1) of GA Act Application for a guardianship order | Dismissed |
| GAA 1628/2010 | 8/6/10 | Social Worker Fremantle Hospital | Section 40(1) of GA Act Application for an administration order | Public Trustee appointed (12 months) |
| GAA 3293/2010 | 11/11/10 | Filed in name of parents | Section 87(1) of GA Act Application for leave to apply for review of administration order | Leave refused (s 17A heard at same time) |
| GAA 3297/2010 | 11/11/10 | Filed in name of parents | Section 17A of GA Act Review | Leave granted Public Trustee reappointed for same term as GAA1628/2010 |
| GAA 2071/2011 | 13/7/11 | Mother | Section 87(1) of GA Act Application for leave to apply for review of administration order | Leave granted |
Issues
The issues for determination by the Tribunal on review of the administration order, either by the application pursuant to s 86 of the GA Act or on the statutory review pursuant to s 84 of the GA Act, are:
1)Is the represented person a person for whom guardianship and administration orders may be made?
2)Is the represented person in need of a guardian and an administrator of his estate or are less restrictive alternatives available to meet his needs?
3)If he is in need of a guardian and an administrator of his estate, who should be appointed in those roles?
Is the represented person a person for whom guardianship and administration orders may be made?
In her application filed with the Tribunal, the applicant mother states she considers her son 'absolutely incapable since 1997 as a result of suffering nervous shock in October 1995'.
She says that the represented person cannot manage his day to day expenses and is unable to care for himself.
She submits that a guardian should be appointed for every decision of the represented person as he cannot resolve matters in a rational manner. She asserts that the represented person has been denied a 'fair go' to allow him to be supported by his family and that he is now suffering a serious relapse of his condition as a result and has other health problems. The applicant mother asserts that the Tribunal has previously made illinformed decisions based on false allegations against the parents of the represented person.
Dr KA, psychiatrist, reports that the represented person has a diagnosis of paranoid schizophrenia with alcohol abuse and his condition is a fluctuating one. The opinion of Dr KA is that the represented person is incapable of making reasonable decisions in the sphere of personal healthcare but is capable in respect of decisions regarding his living situation. In respect of financial decisionmaking, the doctor notes that '[h]e is under [the] Public Trustee. He is happy with the arrangements made by the Public Trustee and wants to continue with it'. Dr KA does not directly address the question of capacity of the represented person to manage his finances but says he is not sure whether the represented person can capably execute an enduring power of attorney.
Dr MR, general practitioner, states in a report dated 5 September 2011 that the represented person's diagnosis is schizophrenia, a progressive condition that is not currently being treated effectively. He states that the represented person has poor insight into his condition, that he is unable to provide for self care or to manage any aspect of his finances and is incapable of executing an enduring power of attorney.
BB, a social worker from the Alma Street Centre, in a report filed on 9 August 2011, reports that the represented person as suffering from a relapse of paranoid schizophrenia which was originally diagnosed at 18 years of age. Her report notes a number of admissions of the represented person to psychiatric hospitals in Western Australia, South Australia and overseas. BB reports that during the current admission the represented person was observed to be responding to unseen stimuli and laughing at inappropriate times. He is reported to have appeared slightly anxious but polite and pleasant. Given his mental state, she doubts the represented person can make reasonable decisions regarding his affairs and asserts that his wellbeing and assets could be at risk.
BB supports the appointment of the Public Advocate in the role of guardian to make decisions on some aspects of the represented person's life; that is, living arrangements and accessing services.
Noting that the represented person is an involuntary patient under the MH Act and based on the medical and social work reports before it, the Tribunal finds that the represented person is a person for whom an administration order and a guardianship order may be made, in that he is unable, by reason of his mental illness, to make reasonable judgments about his financial affairs and is in need of oversight and care in the interests of his own health and safety.
Is the represented person in need of an administrator and a guardian?
The applicant mother asserts that the represented person is in need of a guardian and an administrator of his estate. In her written and oral submissions before the Tribunal she says that the care needs of the represented person are not adequately met in the current arrangements and that she needs to be appointed guardian and administrator to enable her to act on her son's behalf.
She states she needs to be appointed as her son's guardian and administrator 'to move him to smaller accommodation and to make medical appointments, to make personal, medical and lifestyle decisions, to arrange alternative suitable accommodation, purchase furniture without having to answer to everyone, purchase other necessary items, to make decisions regarding lost or stolen passport matters, replace lost keys'.
In correspondence to the Public Trustee, the father of the represented person notes that the applicant mother 'may need to take [the represented person] back to the farm in South Australia if SAT refuses to assist the family' and she 'will then need funds for his travel as well'.
The applicant mother expresses concern that the represented person was abusing substances and alcohol and would spend all his money at once and was not able to properly provide for himself, even in hospital. The applicant mother provides photographs of the represented person's flat taken while he was an inpatient at the Alma Street Centre, having obtained his key from a nurse reportedly against the wishes of the represented person.
The applicant mother states (in response to Dr KA's comments about the represented person's reported support for the reappointment of the Public Trustee as the administrator of his estate) that the represented person supports this because he 'buys alcohol with the Coles card given to him [by the Public Trustee]'.
The applicant mother acknowledges that her appointment as guardian or administrator is opposed by the treating team. In her detailed written response to submissions filed by other parties she notes in part:
…
Every time I make an application … the hospital staff and other/s appear on the scene to raise objections to either myself or my family members from getting a grant of the order/s sought.
She says her attempts for guardianship and administration orders for her son were only made after a failure of authorities to attend to the represented person's personal medical and lifestyle needs.
Later in the same submission the applicant mother states:
… [her] litigious behaviour has nothing to do with [the represented person] who chooses to meddle in my legal affairs as the appointed Administrator in WA Courts for my late mother only. [The represented person] imagined he could get his hands on some money and cause the estate and myself loss and damage as a direct result of Fremantle Hospital Dr AV's flawed report stating that [the represented person ]was 'competent' to act in the Courts.
This statement is in response to the COV's submission that the represented person 'sees his mother's litigious behaviour as the direct cause of his stress'.
The case manager submits that the represented person does not need a guardian as he is engaging 'extremely well' with current services and there had been recovery in his mental health and general improvements in his quality of life. The case manager reports that the represented person is now receiving services from the Assertive Community Treatment team since his discharge from hospital. The case manager says that although the accommodation in which the represented person lives has three bedrooms, it is close to Fremantle Hospital which is ideal for his access to treatment and services. He notes that the represented person likes where he lives and support is now being provided to enable the represented person to take better care of his flat. He submits that there is no need for a guardian at this time to determine the question of where the represented person should live. He says that the contacts made by the applicant mother with the housing authority to arrange a transfer were without authority, and not consistent with the requirements of the housing authority in any event.
Counsel submits a chronology of lengthy proceedings in relation to applications for restraining orders between the represented person and the applicant mother, and the applicant mother and the former wife of the represented person. She asserts that the chronology shows a history of repeated applications and repeated appeals being filed by the applicant mother which embroil the represented person in further court hearings which the represented person does not want. Counsel submits that the chronology shows the 'bad blood' which is exists between the represented person and the applicant mother, at least since 2008.
Although the applicant mother denies she has a 'difficult relationship' with the represented person, some of the statements made in her written submissions are highly critical of the represented person. It is not necessary to repeat for the purposes of these reasons all of the statements made by the applicant mother in this regard, but it is very clear that there is tension between her and the represented person.
The Tribunal accepts the submissions of counsel and of the COV representative that involvement in legal proceedings initiated by the applicant mother is to the detriment of the represented person and puts him at risk of deterioration in his mental health. This risk may establish the need for a guardian: see Public Advocate and CEF [2010] WASAT 54 at [47], where it was found 'the need for oversight, care and control in relation to litigation gives rise to the need for the appointment of a limited guardian'.
In the context of the history of the litigation initiated by the applicant mother, the Tribunal considered whether there may be a need for the appointment of a guardian to protect the represented person from unwanted involvement in legal proceedings which may be initiated by the applicant mother. This protection might be achieved through the need for leave for the applicant mother to bring any further proceedings in the Tribunal and for the guardian to have authority to act in respect of any personal legal matters (as opposed to matters associated with the represented person's estate): see s 45(2)(g) and s 45(2)(h) of the GA Act.
It is unclear to the Tribunal whether there remain proceedings on foot in which the represented person may be a party but it is clear from all the material before us there have been extensive legal proceedings in the past which have involved the represented person and his mother. The applicant mother states in her submission that she is pursuing the former wife of the represented person to recover legal costs. The represented person says he is named as a beneficiary 'in a couple of wills' and that his mother was 'trying to become his guardian to help her case'.
The case manager did not support the need for a guardian to determine the legal proceedings in which the represented person should be involved. He asserts that, in his contact with the represented person since his discharge from hospital, the represented person could make these decisions for himself.
Counsel submits that there is no need for a guardianship order as the represented person's need for protection from involvement in litigation initiated by his mother is met through less restrictive means. Further, she says that the matters in which he may currently be involved in the Supreme Court and in the Fremantle Magistrate's Court Civil Division could be dealt with by the Public Trustee as the plenary administrator of his estate. Counsel undertook to alert the Public Trustee of the possible need to deal with these matters.
In relation to further proceedings before the Tribunal, counsel submits that although there have been numerous unsuccessful applications made by the applicant mother to the Tribunal which have caused great distress to the represented person, there are sufficient safeguards for the represented person in the legislation to respond to continuing applications being made by the applicant mother before the Tribunal.
The Public Advocate notes that in respect of any future need for a restraining order, the case manager could make an application for the appointment of a guardian and could alert the Mental Health Law Centre to the need for representation of the represented person.
Having considered the submissions of counsel for the represented person, the case manager, the representative of the COV and the Public Advocate, the Tribunal accepts that there are less restrictive alternatives to meet the needs of the represented person, including his need for protection from involvement in and the consequences of unwanted legal action initiated by his mother. In addition to the role of the Public Trustee as identified by counsel, there is also advocacy provided by the Mental Health Law Centre and the COV and the intensive support provided by the represented person's case manager.
The reappointment of the Public Trustee as the administrator of the estate of the represented person is supported by the represented person and his representatives, and implicit in this is the recognition of his need for management of his financial affairs. The Tribunal accepts this is the position, and finds that the represented person is in need of a plenary administrator of his estate, both in relation to the monitoring and management of his finances and to act for him in relation to legal proceedings as next friend or guardian ad litem as necessary.
The wishes of the represented person
Counsel submits that the represented person opposes the appointment of the applicant mother as either guardian or administrator.
The COV representative, in a letter to the Tribunal dated 31 August 2011, notes:
…
Since I met [the represented person] on 12 August 2011 he has been adamant he does not want his mother to be his legal guardian or administrator. He speaks highly of his appointed trustee … but does not believe that he needs anyone to make any more decisions for him.
In the report of BB dated 5 August 2011 she notes that:
… [The represented person] has a difficult relationship with his mother and has mentioned to the treating team that he doesn't want his mom to be contacted by the team. …
Conclusion
As noted above, the principles set out in s 4 of the GA Act require the Tribunal not to make an order if there is a less restrictive means by which the needs of the represented person may be met. Although the Tribunal finds that the represented person is a person for whom both guardianship and administration orders may be made, the Tribunal is satisfied that there is no need for a guardianship order. The Tribunal is satisfied that the needs of the represented person can be met in less restrictive means as set out in the submissions of counsel, the case manager and the Public Advocate. The principles also require the Tribunal to ascertain the wishes of the represented person.
In considering the less restrictive alternative to the making of the order the Tribunal is mindful of the strongly expressed wishes of the represented person that no guardian be appointed.
The appointment of the Public Trustee is confirmed for a period of five years. The represented person has a longstanding illness and is likely to need the assistance of a plenary administrator in the longer term. If that position changes it is open to him, or those assisting him, to seek early review of the order. In making the order for the longest period possible the Tribunal seeks to reduce the distress experienced by the represented person in dealing with Tribunal proceedings.
Orders
1.The Public Trustee of 565 Hay Street, Perth, Western Australia is 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.The administrator is directed to arrange, during the term of this administration order, a trial period, or periods, where the represented person is given the opportunity to manage the balance of his Centrelink income after payments of his rent and utility costs.
3.The initial trial period should commence as soon as possible, but otherwise the timing and length of the trial period, or periods, is to be decided by the administrator in consultation with the represented person and his mental health team.
4.This order is to be reviewed by 18 October 2016.
5.The guardianship application is dismissed.
I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER
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