JV
[2008] WASAT 53
•6 MARCH 2008
JV [2008] WASAT 53
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 53 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:19/2008 | 4 FEBRUARY 2008 | |
| Coram: | MS D DEAN (MEMBER) | 5/03/08 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Public Trustee confirmed as plenary administrator | ||
| B | |||
| PDF Version |
| Parties: | JV |
Catchwords: | Section 86 application to review administration order Capacity of the represented person Need for an order Best interests of the represented person Public Trustee confirmed as administrator |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 64, s 86, s 90(1) |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JV [2008] WASAT 53 MEMBER : MS D DEAN (MEMBER) HEARD : 4 FEBRUARY 2008 DELIVERED : 6 MARCH 2008 FILE NO/S : GAA 19 of 2008 BETWEEN : JV
- Represented Person
Catchwords:
Section 86 application to review administration order - Capacity of the represented person - Need for an order - Best interests of the represented person - Public Trustee confirmed as administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 64, s 86, s 90(1)
Result:
Public Trustee confirmed as plenary administrator
(Page 2)
Category: B
Representation:
Counsel:
Represented Person : Selfrepresented
Solicitors:
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The represented person was a young man with a long standing psychiatric illness compounded by an acquired brain injury. He was a long-term resident of a psychiatric hospital.
2 In 1997, the Guardianship and Administration Board made an order appointing the Public Trustee plenary administrator of his estate. The order was subsequently reviewed and renewed several times, most recently in June 2005.
3 The represented person applied for the order to be reviewed on the basis that he was engaged with a child due and wished to marry his pregnant girlfriend and take on his parental responsibilities when the baby was born.
4 The Tribunal found that the represented person had both a psychiatric illness and cognitive deficits. He had no insight into his illness or his own needs and he continued to be in need of an order.
5 The Tribunal confirmed the order appointing the Public Trustee for a further five years.
Background
6 In 1995, the represented person suffered a severe closed head injury and skull fractures as the result of a motor cycle accident. This has left him with significant cognitive deficits including poor insight and a concrete thought pattern. In addition, he has a long standing diagnosis of chronic psychiatric illness with underlying personality disorder and illicit drug use which is said to compound his psychiatric illness.
7 In 1997, the Guardianship and Administration Board made an order appointing the Public Trustee plenary administrator of the estate of the represented person. The order has been reviewed and confirmed several times, most recently in June 2005.
8 The represented person applied to the Tribunal for a review of the administration order on the basis that he wishes to marry his pregnant girlfriend and take on his parental responsibilities when the baby is born.
(Page 4)
Evidence available to the Tribunal prior to the hearing
9 The following written reports were provided to the Tribunal prior to the hearing.
• LH, social worker with a psychiatric hospital who stated that:
The represented person has a diagnosis of organic psychosis and organic brain injury. He would be a risk to himself if he was to have control of his finances because of his poor judgment and cognition. His cognitive functioning remains unchanged since the last hearing. He is unable to manage day to day budgeting. He has been a patient for approximately two years following a brief, unsuccessful, attempt to live independently in a purpose built Homeswest unit. He has no contact with his family. LH recommends that the Public Trustee continue in the role of administrator for another five years.
• Dr AT, treating psychiatrist, Graylands Hospital, stated that the represented person has an "organic psychosis" and "organic brain injury". He is not expected to make any significant improvement in his functioning. He is incapable of making reasonable decisions in respect of his personal health care, living situation and financial affairs because he "has no insight about his functional incapabilities". "He has no skills in money management and spends his money on drugs if he has enough money". He does not have the capacity to execute an enduring power of attorney.
• Dr F, rehabilitation specialist, who has known the represented person for 11 years. He stated that the represented person has a "schizophreniform disorder" with "significant residual cognitive and behavioural impairments", and is not capable of making reasonable decisions in respect of his financial affairs or of executing an enduring power of attorney as indicated by his "demonstrated range of impulsive and inappropriate behaviours over time".
• The Trust Manager, Office of the Public Trustee, outlined the represented person's current estate details and reported that he has limited contact with the represented person but has "been contacted by [the welfare officer] who had advised me against advancing the client directly due to him attaining substances or alcohol".
Hearing
10 The hearing was attended by the represented person. LH, the social worker from Graylands Hospital, attended by video. The represented person's fiancée was notified of the hearing but did not attend.
11 The represented person advised the Tribunal that he does not believe there is a need for the order. He informed the Tribunal that he gives no weight to the professional reports provided for the hearing and denies that he has a mental illness.
12 Although in his written application the represented person cited his reasons for wanting the order revoked as his desire to marry his fiancée and to take on responsibility for his expected child, he did not press this point at the hearing; rather, he focussed on why he is not happy with the way his finances are being managed by the Public Trustee stating that "it has cost me everything I won". He referred to a life insurance policy which he said the Public Trustee should have "cashed in" for a "quarter of a million dollars" but, according to him they haven't because they believe he is "delusional".
13 He said that his allowance of $17 a day is not sufficient to meet his daily needs. He explained that because of his limited funds he is forced to use "unsafe public transport" which he has been advised not to use by the State Head Injury Unit. He said this leaves him "liable to be sued if I have an accident on public transport". The social worker said that she is not aware that the represented person has been advised not to use public transport.
14 When asked how he would manage his money if the order was revoked, the represented person said that if he had access to the $8,000 currently managed by the Public Trustee he would buy a property with a $2,000 Keystart loan. He said that he would like to live with his fiancée who is expecting his child.
15 The Tribunal heard evidence from the social worker that the represented person is a long-term resident at a psychiatric hospital because he is unable to live independently in the community without support and there is currently no accommodation available which is suitable to his needs. He has, in the past, lived in the community but this has proved unsuccessful and resulted in his long-term residence at the psychiatric hospital.
(Page 6)
16 The social worker advised that the treating team have assessed the represented person as vulnerable to financial exploitation by others if in charge of his own finances. She proposed that it is in his best interests that the Public Trustee continues in the role of administrator for a further five years.
Legislation
17 The represented person has sought a review of the administration order pursuant to s 86 of the Guardianship and Administration Act 1990 (WA) (GA Act).
18 Upon review, the Tribunal may confirm the order, amend the order, revoke the order or revoke the order and substitute another order for it (s 90(1)).
19 The principles to be observed by the Tribunal when making determinations in relation to the review of an administration order are the same as those applied in an application for an administration order and are set out in s 4 of the GA Act.
20 These principles are:
• making the decision in the best interests of the person;
• every person is presumed to be capable of making reasonable judgments in respect of his or her person unless proven otherwise;
• an order appointing a guardian should only be made if the needs of the person concerned cannot be met by other means that are less restrictive of their personal freedom of decision and action;
• if an appointment is made, a plenary guardian should only be appointed if the needs of the person concerned cannot be met by a limited appointment; and
• the Tribunal should, as far as possible, ascertain the views and wishes of the person concerned.
(Page 7)
21 In deciding whether to appoint an administrator and in reviewing the appointment of an administrator, the Tribunal is required, by the provisions of s 64 of the GA Act, to make a finding that the person is unable, by reason of a mental disability, to make reasonable judgments in respect to matters relating to all or any part of his estate and is in need of an administrator of his estate.
Findings and reasons
Capacity of the represented person to make decisions for himself
22 Consistent evidence has been provided to the Tribunal over 10 years by the represented person's treating doctors that he has a mental disability and is unable to make reasonable decisions in respect of his estate. In addition, the Tribunal had evidence from the current treating medical team consistent with this. The Tribunal heard evidence, and accepts, that nothing has changed since the previous hearings in respect of the represented person's capacity to make reasonable decisions.
23 The Tribunal is satisfied on all the evidence available to it, both from the written reports and the evidence provided at the hearing by parties, including the represented person himself, that he satisfies the criteria in s 64 of the GA Act in that he is unable by way of a mental illness to make reasonable judgments in respect of any part of his estate and that he is in need of an administrator.
Need for an order
24 As set out in the legislation, the appointment of an administrator requires the Tribunal to find there is a need for an order and that the needs of the person cannot be met by any means less restrictive of the person's freedom of decision and action.
25 In this case, the represented person is a long-term resident of a psychiatric hospital. He has, for many years, had his estate managed by the Public Trustee. Dr AT, Dr F, the Trust Manager and the social worker are consistent in their evidence that the represented person has poor judgment, lacks insight into his own needs, and has a propensity to further compromise his mental health by purchasing and using illicit drugs when in charge of his own finances.
26 Evidence provided by the represented person in the hearing confirms his denial of his illness, his lack of insight into his own needs, and his limited and unrealistic planning and implementation skills.
(Page 8)
27 The Tribunal finds that the represented person continues to be in need of an administrator to pay his bills and to ensure that his money is managed in a manner that, while ensuring he has adequate funds to meet his day to day needs, does not allow for the purchase of illicit drugs and consequent deterioration of his mental health.
28 After finding there is a need for an order, the Tribunal must consider whether there is a less restrictive alternative to making an order. In this case, the Tribunal finds, based on the evidence of the treating doctors, that the represented person does not have the capacity to execute an enduring power of attorney which is a less restrictive alternative to making an administration order.
29 Having found that an administrator needs to be appointed, the Tribunal must decide who to appoint. In some cases, a family member or a friend is suitable and willing to be appointed. In this case, the represented person's family and support circle is small. He has a fiancée and a brother neither of whom attended the hearing or proposed themselves as administrator.
30 Having found there is a need for an administrator, that there is no less restrictive alternative to the appointment of an administrator and that there are no family or friends suitable or willing to take on the role, the only option for the Tribunal is to appoint the Public Trustee.
Wishes and best interests of the represented person
31 The represented person informed the Tribunal that he initiated the review of the administration order on the basis that he believes that he does not have a mental illness and does not need an administrator.
32 The Tribunal endeavours to take into account, where possible, the views and wishes of the represented person. In this case, the Tribunal finds, based on the evidence provided in the medical and paramedical reports, and on the evidence and presentation of the represented person at the hearing, that he has a chronic mental illness and cognitive impairment with no insight into his own limitations and needs.
33 The overarching principle guiding the Tribunal in its decision-making is the best interests of the represented person.
34 In this case, there was evidence provided by the various parties that when managing his finances for himself the represented person is at risk of financial exploitation by others, and that he puts his health and safety at risk by spending his money on drugs.
(Page 9)
35 For all these reasons, the Tribunal considers it is not in the represented person's best interests to give effect to his wishes in regard to revoking the administration order and handing the management of his estate back to him.
36 The Tribunal finds that it is in best interests that an administrator be appointed to make day-to-day budgeting decisions, to pay his bills and to ensure that he receives an allowance adequate for his daily needs.
Order
37 The appointment of the Public Trustee is confirmed for a further five years.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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