JS - [2020] WASAT 44 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   [2020] WASAT 44
MEMBER:   MR J MANSVELD, MEMBER
HEARD:   3 APRIL 2020
DELIVERED          :   15 APRIL 2020
FILE NO/S:   GAA 910 of 2020

Catchwords:

Guardianship and administration - Represented person suffered strokes - Psychiatric assessment of represented person's capacity - Capacity to instruct solicitor - Capacity to manage a personal injuries settlement - Whether represented person in need of a guardian - Whether represented person in need of an administrator of her estate

Legislation:

Guardianship and Administration Act 1990 (WA), s 17, s 86, Pt 5, Pt 6, Pt 7, s 4

Result:

Guardianship order revoked
Administration order confirmed

Category: B

Representation:

Counsel:

Applicant

Errol Vertannes

Solicitors:

Applicant

VERTANNES GEORGIOU LAWYERS (PERTH)

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

The decision in this matter was delivered on 15 April 2020. The following reasons have been edited from the transcript to where necessary anonymise the names of the parties and to correct minor errors and omissions.

Introduction

JS is 54 years of age. In 2019, she suffered a cerebral vascular accident (stroke) which resulted in a country health service in August 2019 making an application for the appointment of a guardian and the appointment of an administrator of her estate pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
A medical report completed by a hospital medical officer in August 2019 stated that JS has sustained an acquired brain injury as a consequence of the stroke. JS was said to have a cognitive impairment and was assessed as incapable of making simple financial decisions, complex financial decisions and dealing with legal matters. She was considered incapable of making decisions concerning her medical treatment, accommodation needs and support services to which she might require access. She was also at that time considered incapable of executing an enduring power of attorney or enduring power of guardianship.
A senior occupational therapist in a report from August 2019 stated that JS managed her own finances through online banking and had verbalised an awareness of when debts were due and the need to transfer funds. The occupational therapist could not comment on JS's ability to establish new financial arrangements without support. JS was said to demonstrate some vulnerabilities in regards to financial exploitation on the hospital ward for example offering significant amounts of money to purchase a single cigarette from other people in the hospital when unable to source the cigarette herself. She was said to be able to understand basic advice provided by therapists on the ward however demonstrated some inconsistency with carryover of advice throughout therapy sessions. JS was said to be impulsive and requiring frequent verbal reinforcement of advice to ensure her safety. JS was said to have poor insight into her presenting deficits and often denied that she had any changes to her vision.
In a report from August 2019 by the clinical service facilitator at a home care agency it was noted that JS had strained relationships with her family. JS was said to manage her own finances and relied on income support from her father. She was said to struggle with complex financial decisions, poor budgeting, over-expenditure, and had reduced insight. JS was said not to forward plan her finances and made decisions to meet her immediate needs. She had recently been the victim of a financial scam.
On 2 October 2019 the Tribunal found that JS was unable by reason of a mental disability to make reasonable judgements in respect of matters relating to all of her estate and was in need of an administrator of her estate. The Public Trustee was appointed plenary administrator of JS's estate. The enduring power of attorney executed by JS in 2013 was revoked.
On the same day the Tribunal found that JS incapable of looking after her own health and safety, unable to make reasonable judgements in respect of matters relating to her person and in need of oversight, care or control in the interests of her own health and safety. JS was found to be in need of a guardian and the Public Advocate was appointed limited guardian to make decisions concerning her accommodation needs, the services to which she should have access and as next friend to commence, conduct or settle any legal proceedings other than proceedings relating to her estate.
The orders made on 2 October 2019 (2019 orders) were set for review by October 2024.

The current application

On 4 March 2020 JS through her legal representative made an application for review of the 2019 orders under section 17 A of the GA Act. JS sought a review on the basis of changed circumstances they being that she had recovered her capacity to make her own personal and financial decisions referring to an assessment of the psychiatrist Dr S.
Given that the review sought before the Full Tribunal under s 17A of the GA Act was substantially out of time and because JS described changed circumstances, on 16 March 2020 the Tribunal accepted the application as having been made pursuant to section 86 (1) of the GA Act.
In her application JS stated that she was proposing to instruct her solicitors to immediately negotiate and settle a personal injuries claim which was listed for trial in the District Court of Western Australia (personal injuries claim). She stated that if the order to revoke was not made she would be forced to proceed to trial against her wishes.
The review application was heard on 3 April 2020. Present were JS, her legal representative, a legal officer from the Public Trustee (legal officer), the delegated guardian from the Public Advocate (guardian) and Dr S psychiatrist.
The decision was reserved.

Relevant legislation

Guardianship and administration matters are considered under Part 5, Part 6 and Part 7 of the GA Act. The principals to be observed by the Tribunal are set out in s 4 of the GA Act.
The primary concern of the Tribunal is the best interests of JS.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes JS has expressed, in whatever manner at the time, or as gathered from her previous actions.
JS is presumed to be capable of looking after her own health and safety; making reasonable judgements in respect of matters relating to her person; managing her own affairs; and making reasonable judgements in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal.
The Tribunal cannot consider appointing a guardian for JS unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgements in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.
The Tribunal cannot consider appointing an administrator of the estate of JS unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgements in respect of matters relating to all or any part of her estate.
Mental disability is defined in the GA Act to include an intellectual disability, psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to JS the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of JS can be met in a manner less restrictive of her freedom of decision and action then orders should not be made.
If the Tribunal decides that JS is in need of guardianship and administration orders it must decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of JS a plenary order should not be made. If limited guardianship and administration orders are made the orders must place the least restriction necessary on JS.
When reviewing guardianship and administration orders the Tribunal can relevantly confirm the orders, revoke the orders and substitute new orders for them or amend the orders.

Reports filed with the Tribunal

The following reports were filed with the Tribunal in the course of the review proceeding.
1.Two reports from Dr S from February 2020 addressed to JS's legal representative.
2.The Public Trustee legal officer
3.The Public Trustee trust manager
4.The Public Advocate delegated guardian.

The reports from Dr S

The first of the reports sets out the opinion of Dr S from an interview with JS and access to documentation from a hospital (hospital) (first report).
The second report is a response to specific questions by JS's legal representative (second report).
In the first report Dr S notes that JS has vascular damage to the brain as a consequence of two significant cerebral vascular accidents one from November 2013 to February 2014 and one in 2019.
JS displays some reduced insight. It is evident to Dr S that JS is very angry concerning her treatment at the hospital including being placed under guardianship and administration orders. There is a degree of paranoia in relation to the hospital, JS being concerned that if she became ill again she believes it would be in the hospital's interest to either kill her by not offering proper treatment or by overdosing her on medications. According to Dr S paranoia is not uncommon as an outcome of right frontal - parietal strokes.
JS told Dr S that she believes her lawyers have advised her that she may gain about $500,000 in the personal injuries claim and in the interview she detailed how she intended to direct those funds should she have control of them. She would pay out the mortgage on her home of about $76,000, spend $5000 to visit her father in South Australia, repay her father $10,000, buy a laptop, clothes and a new bed and she would invest the balance of approximately $400,000.
JS was able to respond correctly to concrete questions and Dr S stated there is no evidence of receptive or expressive dysphasia.
In the course of the interview JS said something which Dr S considered 'quite strange' and that was that the previous carers took her wheelchair and sold drugs in the wheelchair which was only discovered when the police pulled her over and accused her of selling drugs. Dr S could not verify that statement.
JS could not recall the name of the antidepressant she is prescribed. She is also on pain medication.
JS scored 26/30 on the mini mental state exam. She did not know the date of the interview, she misspelt the word 'world', she could only recall two words and not three and she was unable to copy a complex figure which according to Dr S is typically seen in parietal lobe damage. There is no evidence of dementia.
The opinion formed by Dr S is that JS has the capacity to instruct her legal representative in the personal injuries claim. She is considered capable of understanding legal advice and has a clear understanding of what is involved in the personal injuries case. Dr S expresses a caveat to his opinion and that concerns JS's paranoia towards the hospital. In the interview she persisted in talking about the hospital and the way she was being allegedly mistreated. However she was able to be redirected in the conversation.
Dr S states that JS does have some frontal lobe damage, reduced insight and probably also some neglect in both self-monitoring and visual field sense but he does not consider these things render her incompetent in the specific matter of instructing her lawyers. He further states:
I do recommend, however, that a professional trustee be appointed to assist her in managing any payout she gets. She thinks the payout maybe half a million, but in your [the legal representative's] documentation, you said it may be equal to or excess of 1 million and therefore, I believe it would be wise for her not to be given sole responsibility to manage that money, but with the assistance of a professional advisor.
In the second report and in response to specific questions from JS's legal representative, Dr S restates his opinion from the first report.
On the basis of JS's mini mental state score (26/30), Dr s assesses JS as having a mild cognitive impairment however that impairment is not the main issue, what is more of an issue according to Dr S is JS's neuropsychiatric change from the cerebral vascular accident namely some reduced insight and some paranoia.
Dr S does not consider that the mild cognitive impairment, impairs JS's ability to instruct lawyers in the personal injuries matter and also does not impact on her activities of daily living and, social and recreational activities.
Dr S goes on to say that JS:
…does have some cognitive difficulties, but these relate mostly to more complex tasks such as programming new apps in her phone or making high-level financial decisions. I think it is wise that any payout which she receives be managed with the assistance of a financial adviser recommended by her lawyers.
When asked the question 'Does the cognitive impairment that client complains of render her incapable of managing a lump sum equal to or in excess of $1 million' Dr S answered 'No, but she should work in tandem with a financial adviser'.
Dr S considers JS's prognosis to be poor because she continues to smoke and it is therefore highly likely she will have further cerebral vascular episodes.

Public Trustee legal officer

The legal officer advises that the Public Trustee neither consents nor opposes JS's application for review of the 2019 orders.
The legal officer notes an apparent discrepancy between the first and second reports of Dr S in the way that he assesses JS's ability to manage the funds she is likely to receive from the personal injuries claim, in particular in referencing the need for a 'professional trustee' and later a 'professional advisor'.
The submission of the legal officer is that there is a difference between the roles of a trustee and an advisor. In addition there is a distinction between a capacity to instruct a legal representative and comprehending legal advice from that of managing a prospective award of around $1 million.

Public Trustee trust manager

The trust manager states that during all conversations with JS she seems to want to focus on matters relating to her medical negligence claim against the hospital. Despite this JS seems to understand her finances relatively well and has not asked the administrator for extra advances.
From time to time JS will not forward information to the trust manager for accounts. On other occasions JS has relied on outdated information to seek payment of an account. The example used was the concern of JS that her computer, which she is renting, was about to be repossessed relying on a default notice from October 2019 which the trust manager had dealt with in December 2019.
The trust manager states that they have recently been advised that a person moved into JS's home in January of this year and is her live-in carer (carer). The trust manager understands this was not initially approved by the guardian however approval has subsequently been given. The trust manager notes that the carer is not currently paying rent or contributing to utility accounts an issue which may need to be dealt with in the future.
The trust manager states that JS seems to have had arrangements in place prior to the administration order such as centrepay deductions and direct debits and the indications are that the RP was relatively successful with her fortnightly budgeting although she did accrue a small credit card debt of about $2700 which the trust manager is seeking to have waived.
JS advised the trust manager that her father sometimes sends her money it appears upon her request. None of those funds have been received in the first instance by the Public Trustee as administrator.
JS has a pet dog which requires medical attention from time to time. The accounts are usually expensive and unaffordable as a one-off payment, for example a recent account was received for $831.65 for a visit to a veterinary surgeon in January 2020. A fortnightly repayment plan has been put in place.
JS advised the trust manager that in about 2000 she received a personal injuries award of about $250,000 from a motor vehicle accident. Apparently JS purchased her property with those proceeds although she later needed a mortgage given the financial outcome of a relationship separation.
The trust manager states that it appears JS made a hardship claim from her superannuation fund in March 2006. The amount of the claim is not known however the funds have been fully expended.
The fortnightly budget for JS is currently in deficit due to JS recently organising an advance payment from centrelink which has reduced her fortnightly pension by about $100.
JS has two accounts with the administrator, a cash account with a balance of $1241 and an account for legal fees which is in debit of $1907.
It is a view of the trust manager that JS successfully budgets her once a fortnight allowance payment of $450 which according to the trust manager seems to indicate that she has a capability of managing small amounts of funds.
The trust manager states that depending on the amount of the personal injuries award, it is likely that JS's centrelink income will have a preclusion period and she will therefore need to rely on the funds obtained from the personal injuries claim.

The guardian

The guardian states that she was informed in February of this year that the carer had moved into JS's home after being introduced to her by a previous agency support worker. Consent was not sought from the guardian.
JS is in receipt of a level four Home Care Package with a home care agency and receives daily visits and support for her activities of daily living. JS is welcoming of services.
It is reported that JS and the carer appear to have a positive relationship.
The guardian states that as JS continues to reside in her home and it has not been necessary for alternative accommodation to have been considered. The provision of support services and JS's acceptance of those services has also meant decisions in that area of her life have not been needed.
The next friend function has not been used.
The guardian states that JS has advised that once she receives her personal injuries award she intends to pay-out her mortgage and remain in her property. The guardian is of the view that JS's home meets her current needs. JS did indicate that she may eventually need residential aged care but not at this time.
JS has been assisted by staff of the home care agency to make an access request to the National Disability Insurance Scheme (NDIS).
This submission of the guardian is that JS has the capacity to make her own personal decisions in her best interests and that the guardianship order should be revoked.
The view of the guardian is that the administration order should remain in place.

The oral evidence and submissions

Dr S

In his oral evidence Dr S said that 'on balance' JS has the psychological and cognitive capacity to manage a payout from the personal injuries claim however that is subject to two caveats.
The first is psychological in nature and is concerned with JS's tendency to paranoia. If for example she developed a paranoia towards a financial advisor, her psychological mindset would interfere with her judgement concerning the advice given.
The second concerns JS's cognitive deficits and their effect for example on complex judgements in respect to investment options that will arise when a payout of the personal injuries claim is received. Dr S said that when a person suffers damage to the front of their brain as has occurred with JS, this can lead to deficits in judgement, organisation and planning. However in the case of JS, Dr S found that she was able to provide him with very reasonable answers to how she would spend an award of $500,000 and he assessed the damage to JS's brain as 'not that bad'.

Dr S said that JS would have difficulty weighing up different options put to her by an investment advisor. She might have trouble weighing the different options and comparing those options to others. This type of deficit would not be apparent in an interview of the type he conducted with JS and would only become evident in a real-life complex situation.
Dr S also said that JS suffers from reduced insight into her paranoia and as with his written report referenced the personal injuries action involving the hospital. He further said that her paranoia involved a concern that the hospital might want to kill her so that there did not need to be a defence to her action for personal injuries. JS is not able to accept this as an exaggeration of the situation she finds herself in.
In respect to the capacity to make personal decisions Dr S said that overall he doesn't have significant concerns. JS appears to make sensible decisions concerning medical and support matters. There is no evidence of gross exploitation and although cognitively vulnerable Dr S is of the view that, that vulnerability is not so significant that JS requires 'a cocoon around her'.

The guardian

In her oral evidence the guardian expressed concern about the carer and how it was that he came to be in that role. She considers JS to be vulnerable to exploitation.
The guardian restated her submission from her written report that the guardianship order is no longer needed and that the administration should remain in place.

JS said that the carer does make a contribution to the household expenses. He pays board of $120 per week. He provides assistance to her on a day-to-day basis and also transports her to her appointments. JS said she is happy for the carer to act as her live - in carer in addition to the services she receives from the home care agency.
Counsel for JS said that the care provided by home care agency is insufficient to meet her needs which is why she requires and has in the past had live-in carers. It is the case that some previous live-in carers stole from her.
JS said that she did not know at the time that she was required to alert the guardian to the presence of the carer. She was also not aware that she had to advise the administrator of the contributions the carer makes to the household costs.
JS said that her legal representative will direct her to financial advisors and she will also take advice from her father who continues to operate a farming property. She confirmed what she had said to Dr S that she intends to pay out her mortgage and also that she wishes to see her father who lives in South Australia. She doesn't want to be prevented from visiting her father perhaps for the last time because of his age.
Through her counsel JS submitted that she does not suffer from such a degree of mental incapacity that she should be deprived of her right to make some decisions in respect to her financial affairs. She submits that any person about to receive up to $1 million would require financial assistance to help decide how those funds should be expended and invested. It is put to the Tribunal that it should not differentiate daily financial decisions from decisions relating to the personal injuries award.

Discussion of the issues

Guardianship

I find on the evidence that JS is in need of oversight and care in the interests of own health and safety.
JS has physical and mental vulnerabilities, it is common ground that she cannot live independently without the personal support she receives.
Despite this I am satisfied that JS is not in current need of a guardian. The appointed guardian has not needed to make a substantive decision in respect to the authority granted under the 2019 order.
JS is in stable accommodation, she receives and accepts services to support her in her home and she attends regular medical appointments.
Although JS is vulnerable as evidenced by the actions of some of her previous live-in carers, there is no evidence before the Tribunal that suggests this is a current concern. JS says that she is happy in her home environment.
These circumstances constitute in my view a less restrictive alternative to the need for a guardianship order. I will therefore revoke the guardianship order made on 2 October 2019.

Administration

I have decided to confirm the appointment of the Public Trustee as the plenary administrator of JS's estate. I do so for the following reasons
JS has an acquired brain injury which is a mental disability under GA Act. Her mental disability arises out of strokes she suffered in 2013/14 and 2019.
The mental disability has resulted in psychological and cognitive deficits. These impact on her ability to make reasonable judgements concerning her estate. The question is to what degree they do so.
On 2 October 2019 Tribunal made a finding of incapacity based in part on the medical and allied health assessments made at the time JS was a patient in hospital following the most recent stroke.
For the current review the Tribunal is in receipt of specialist medical assessment by the consultant psychiatrist Dr S. This assessment arose out of a single interview with JS and Dr S's access to documentation from the hospital. The only formal cognitive testing undertaken by Dr S was a mini mental state examination.
The estate of JS is complicated by a current legal action for personal injuries arising out of alleged medical negligence of the hospital and others. The further complication is that JS is likely to receive an award of compensation of up to $1 million.
Other than the personal injuries claim, JS does not have a large estate. It consists of the property in which JS lives which is subject to a mortgage, an entitlement to centrelink income and a small amount of savings.
The principal questions put to the Tribunal are whether JS can instruct her legal representative in respect of the personal injuries claim and whether she can make reasonable judgements in respect to the management of any settlement or award arising out of the claim.
There is a particular context to the personal injuries claim which in my view impacts on the ability of JS to instruct her legal representative in her best interests.
Currently the personal injuries claim is set for trial. What this means plainly is that the administrator has instructed its legal representative to pursue the claim to trial on the basis that a settlement has not at this time been reached.
This is said to be against the wishes of JS who wishes to settle the matter prior to the commencement of the trial.
Dr S is of the view that JS can instruct a legal representative for this purpose. However he caveats that opinion against the paranoia that JS has in respect to the hospital which is a defendant in the action.
The paranoia is significant relating as it does to an irrational fear that the hospital will be instrumental in her death as a means of curtailing the progression of the personal injuries claim. I infer from this evidence that JS's intention to settle is significantly affected by the fear and paranoia from which she suffers. I take the reasonable position that the current administrator would also settle the personal injuries claim were it of the opinion that such a settlement was in JS's best interests.
In my view in the evidence of Dr S there was not sufficient regard given to the extent of the impact that JS's paranoia and fear will likely have on her decision-making concerning the personal injuries claim.
Given the nature of the paranoia and its focus on a defendant to the personal injuries claim, I find that it would more likely than not have a material impact on the reasoning JS would bring to the decision-making process.
I therefore find that she is not capable of making reasonable judgements in respect to how the personal injuries claim should progress and to what extent a realistic settlement can be agreed given that more likely than not a driving force will be her paranoia.
I am satisfied that JS is in ongoing need of an administrator for this particular matter.
As regards the question of the management of the award or settlement from the personal injuries claim I say the following.
Dr S undertook limited cognitive testing. I consider there to be an argument that more explicit neuropsychological testing would assist in determining the extent of the impact the particular cognitive deficits which Dr S has identified would have on JS's abilities. This appears to be something which Dr S implicitly recognised when he said that the difficulties that JS would have weighing up different options put to her by an investment advisor and comparing those options to others could not be substantiated in the type of clinical interview he conducted and would only become evident in real-life, complex situations. It is my understanding that such situations can be modelled in a neuropsychological assessment.
Dr S identified an area of deficit in JS's abilities relating to complex tasks for which he gave examples such as programming new apps on her phone or making high-level financial decisions.
These deficits in my view have implications in JS making decisions about and managing a settlement or award of up to $1 million, a substantial sum of directly accessible funds.
Although I accept that any capable person would benefit from obtaining financial advice as to the expenditure and investment options for such an amount of money, it would still require a person to act on that advice and to decide whether or not to accept the advice. In doing so the person would be required to use their higher-level cognitive functioning to consider the complexity of the investment and expenditure options available.
In his evidence Dr S said he was satisfied that JS gave a reasonable explanation of how she would use the funds derived from the personal injuries claim although in his example the amount JS referred to was $500,000 rather than the mentioned $1 million the personal injuries claim might achieve. In doing so Dr S assessed JS's brain damage as 'not that bad' after stating that the type of damage sustained by JS can lead to a person having deficits in judgement, organisation and planning.
I note also that Dr S when differentiating between what he took to be a trustee as against an advisor referenced a trustee of a superannuation fund as the sort of person who might assist a person in JS's situation. It is the case of course that a trustee of a superannuation fund is a trustee with decision-making authority and not an advisor.
When I consider all the evidence I find that JS suffers from deficits in her higher level cognitive functioning which together with her paranoia represent the psychological and cognitive deficits referred to by Dr S. I further find that on the limited cognitive testing undertaken by Dr S it is difficult to quantify the extent of the cognitive deficits; any more nuanced articulation would require a greater level of cognitive testing such as a neuropsychological assessment.
I find on balance that the evidence of Dr S does not support the conclusions reached that JS is able to manage any award or settlement from the personal injuries claim. I further find that JS retains an unacceptable level of vulnerability without the support of an administration order. In doing so I have placed significant weight on the caveats stated by Dr S in the opinion he has formed.
I have also considered the evidence of the administrator's trust manager which in my view supports only a finding that JS is currently managing a relatively small fortnightly allowance which she is doing well albeit in receiving monetary assistance from her father from time to time. I note also the trust mangers evidence that, for example, JS incurred a veterinary account for her dog for which funds were not available and which required the trust manager to enter into a fortnightly repayment plan. In addition JS recently arranged a loan/advance on her centrelink income which has reduced her fortnightly payment such that her budget is in deficit.
Considering all the evidence and taking into account the evidence and findings made by the Tribunal in October 2019, I am satisfied that it remains in JS's best interests that the Public Trustee continue as her plenary administrator.
The order made on 2 October 2019 is confirmed and will be set for review in two years.

Orders

The Tribunal orders:
The administration order dated 2 October 2019 is confirmed as follows:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administration order is to be reviewed by 15 April 2022.
3.The guardianship order dated 2 October 2019 is revoked.