K
[2018] WASAT 96
•29 MARCH 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: K [2018] WASAT 96
MEMBER: MS H LESLIE (MEMBER)
HEARD: 29 MARCH 2018
DELIVERED : 29 MARCH 2018
PUBLISHED : 18 SEPTEMBER 2018
FILE NO/S: GAA 692 of 2018
MATTER: K
Represented Person
Catchwords:
Administration - Reasonable expenditure - Guardianship - Best interests - Conflict of interest - Accommodation options - Insight into disability - Independence required
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1), s 44, s 45, s 51(1), s 51(2), s 64(1), s 68, s 69, s 84, s 86,
Result:
Public Advocate confirmed as limited guardian (with same authorities)
Appointment of E as plenary administrator revoked and Public Trust substituted
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Applications for the review of orders with respect to K came before the Tribunal on 22 March 2018 (Hearing 1) and 29 March 2018 (Hearing 2). At the conclusion of Hearing 2, on the basis that written reasons for decision would thereafter be published, the Tribunal made orders as follows:
The administration order dated 27 February 2017 is revoked and an order in the following terms is substituted for it:
1.The Public Trustee of 553 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 Act.
The guardianship order dated 27 February 2017 is confirmed as follows:
2. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed plenary guardian of the represented person with all the powers and duties conferred by the Act.
3.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
4.The section 86 application by E is otherwise dismissed.
5.The administration and guardianship orders are to be reviewed by 29 March 2023.
What follows is those reasons.
Earlier orders
On 18 February 2016, the Tribunal appointed the Public Advocate as plenary guardian for K and appointed K's father E as her plenary administrator (the first orders). Both orders were to be reviewed after 12 months given E's statement that he was looking to pass the duties of administrator on to other family members given his age. In the making of the first orders, the Tribunal determined that K was a person who met the criteria for the making of both guardianship and administration orders by reason of her having been diagnosed with autism spectrum disorder and an intellectual disability.
On 27 February 2017, the Tribunal reviewed and confirmed the first orders in similar terms but additionally directed the administrator to provide copies of the accounts prepared for the Public Trustee to the guardian within 28 days of their being lodged. An order was made directing the review of the administration order after a further 12 months. The guardianship order was made as a five year order (the second orders).
Applications
The second administration order comes on for review under s 84 of the Guardianship and Administration Act 1990 (WA) (the GA Act).
Additionally, E makes application under s 86 of the GA Act for a review of the second guardianship order in so far as it relates to the guardian's authority to make decisions as to where and with whom K lives.
Relevant legislation
The primary concern of the Tribunal is the best interests of K: s 4(2) of the GA Act.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of K as expressed, in whatever manner, at the time, or as gathered from K's previous actions: s 4(7) of the GA Act.
K is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for K unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments 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.
Under s 64(1)(a) of the GA Act the Tribunal cannot consider appointing an administrator of the estate of K unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia. It is to be noted that this is an inclusive definition rather than an exhaustive definition. It is therefore instructive to look further at the meaning of the words 'mental disability' in considering what else might be included in the definition. In accordance with the principles of statutory interpretation, the ordinary meaning of the words is relevant.
The Australian Oxford Dictionary (2nd ed, 2004) (Moore ed.) (The AOD) defines 'mental' as 'of or in the mind'. Similar definitions are contained in The Macquarie Dictionary (6th ed, 2013) (The MD) and Taber's Cyclopaedic Medical Dictionary (1989) (Taber's).
The AOD defines 'disability' as 'a lack of some asset, quality or attribute that prevents someone's doing something', and defines 'disable' as 'to render unable to function; or to deprive of ability'.
The MD defines 'disability' as 'a lack of competent power, strength or physical or mental ability' or as 'a particular physical or mental weakness or incapacity'.
Taber's defines 'disability' as meaning 'any restriction or lack of ability to perform an activity in the manner and within the range considered normal for a human being'. (This is to be compared with Taber's definition of 'mental disorder' which is 'an imprecise and general term that may be described as a clinically significant behaviour or psychological syndrome or pattern typically associated with a distressing symptom or impairment of function').
Black's Law Dictionary (10th ed, 2009) (Garner ed.) defines 'disability' as 'an inability to perform some function' and, secondly, as 'an objectively measurable condition of impairment physical or mental that prevents a person from engaging'. Butterworth's Australian Legal Dictionary (1997) defines 'disability' as 'the total or partial loss of a person's mental or bodily functions' and as including 'a disorder that results in a person learning differently to a person without the disorder and a disorder that affects a person's thought processes, perceptions of reality, emotions or judgments or that results in disturbed behaviour'.
If a finding of incapacity is made in respect to K, the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of K can be met in a manner less restrictive of her freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
If the Tribunal decides that K is in need of guardianship and administration orders it must then 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: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of K then a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on K: s 4(5) and s 4(6) of the GA Act.
Issues Incapacity and need not in dispute
K participated in the hearing and gave evidence to the Tribunal in her own way in camera. It was accepted by all others involved that K's disabilities are essentially static and that she continues to be a person for whom guardianship and administration orders can and should be made.
Having reviewed the medical and other evidence on the file, having heard from the parties and having talked to K at both Hearing 1 and Hearing 2 in the absence of all parties other than her support worker VM, the Tribunal accepts and finds that K continues to be a person for whom guardianship and administration orders can and should be made because of her diagnoses, which the Tribunal accepts separately and in combination constitute mental disability.
Further, the Tribunal accepts and finds that there are, ongoing, many decisions that need to be made on K's behalf in relation to the management of her estate and in relation to the arrangements for her accommodation, support, care and participation in the community generally.
The only issues before the Tribunal were:
1)whether the Public Advocate should continue to make accommodation decisions for K or whether E should have that role; and
2)whether E should continue to act as administrator for K or whether the Public Trustee or any other party should have that role.
K's situation
K is a 41-year-old woman who, at the time of the hearings, had as her home a rented unit in Bicton, Western Australia, a suburb in the Fremantle area. Prior to the appointment of the Public Advocate as her guardian, she had not had access to any support services outside of her family. At the time of the hearings, she was receiving a suite of support services through the Autism Association of Western Australia or (AAA) including in-home support and support in the community totalling approximately four hours per day five days a week. The evidence of the support workers and the Public Advocate was that, in the time since she had had access to these independent services, K had 'blossomed' (ts 50, 29 March 2018) and was enjoying her life and her participation in the community. Unfortunately, shortly before Hearing 2, K was the subject of a sexual assault. Arrangements were therefore put in place by the guardian, pending the outcome of Hearing 2, for her to stay at E's home but to continue with her daily activities with the AAA support workers.
K's family
K's father E has been and remains a constant presence in her life. He resides in Beaconsfield, a suburb just south of Fremantle with his partner Y. He acknowledges that Y and K do not have a good relationship.
K's mother resides in the former family home in Forrestfield. The Tribunal has little information about the contact if any that K has with her mother. It appears to be limited. K's mother and E are estranged. K has four siblings being a brother (B) who lives in Kalamunda and runs his own business, a sister (D) living in Kalamunda and working full-time as a schoolteacher, a brother (G) in Sydney in New South Wales and a brother (J) who is a mining engineer and who is at present in Europe. He is said to be returning to Perth at the end of 2018. All siblings are married with their own families and play a relatively minor role in K's life.
The hearing
Hearing 1 was attended by CL, GL and VM who are, respectively, the manager, coordinator and support worker from AAA, JCM from the Public Advocate's Office who is K's guardian (this has been defined earlier), K, E, Y, D and, by telephone, J and G.
Hearing 2 was attended by the above parties save for D who provided a written submission and sent her apologies.
K's estate
K's income is a disability pension. Her expenses are limited to accommodation costs, medical expenses, carer's fees and personal dayto-day living expenses. Her only asset, other than a modest amount of household goods and personal possessions and a small savings account, is a deposit account containing the proceeds of the sale of her previous accommodation currently totalling approximately $240,000.
It appears that the family have a discretionary family trust controlled by E. It appears that K may be a beneficiary of that trust but, from the accounts lodged by E with the Public Trustee, it does not appear that she is in receipt of any regular income from it nor that she currently has a loan account either to her credit or debit in the trust. It is noted, however, as will be referred to further in these reasons, that in recent times, using resources other than those belonging to K, E has purchased a home unit in Forrestfield in which he desires K to live. His evidence is that that property has been purchased in his name possibly on behalf of the trust but certainly not in K's name.
The accommodation options
It is uncontested that, after leaving the care of her mother in what had been the family home in Forrestfield many years ago, for some years, K lived in her own unit (purchased in her name by E in 2007 according to the Certificate of Title - through the family trust) in Beaconsfield, Western Australia, a suburb just to the south of Fremantle. It is understood that, prior to him forming a relationship with Y, E lived for a period with K in the unit. After his departure he now lives elsewhere but in the same suburb - despite a variety of private livein carer arrangements trialled by E, the unit accommodation proved unsuitable for K and arrangements were made to remove her from what had become an abusive and unsafe environment into an alternative rental unit in Bicton, Western Australia. The rental property was sourced quickly by E (without reference to the guardian) to remove K from a vulnerable situation and with a view to looking for more appropriate long-term accommodation. Her Beaconsfield unit was sold.
It is common ground that the Bicton unit accommodation has proved unsuitable for K. Whilst living at the unit, K has on occasion been abused by her neighbours, harassed for money and assaulted.
It appears E has had a long-term plan that K should ultimately relocate to the Forrestfield area to be closer to her siblings two of whom (B and D) live some 15 minutes away (by car) in Kalamunda and one of whom (J) is said to be relocating to Forrestfield at the end of 2018. In pursuit of that plan, approximately six months prior to Hearing 1, and without reference to the guardian, E purchased a unit property in Forrestfield which he initially tenanted. Shortly prior to Hearing 1, despite advice from JCM, to him that the Forrestfield unit option would be simply viewed as one of the possible options under consideration, E ended the existing tenancy in the expectation that K would move to the Forrestfield unit at the end of March 2018 when her Bicton lease expired. Again, without reference to JCM, he began to make arrangements for K's relocation including the packing of some of her property and the booking of removalists.
In late February 2018, in her role as guardian, JCM made the decision that, rather than moving to the Forrestfield unit, K would remain living within the greater Fremantle area in accommodation yet to be identified, in view of what were said to be her expressed wishes, her familiarity with the locality and her connections in the community as identified in discussions by JCM with K and with the AAA support staff.
E opposes that decision.
The case presented by E
Guardianship
E wishes to be appointed limited guardian for the purposes of making the accommodation decision regarding K. He wishes K to reside in his Forrestfield unit.
E states that, notwithstanding that he lives in the area himself, it is 'the wrong decision' for K to remain in the Fremantle area; that 'strange things' happen there; that K has suffered abuse and assault in the Fremantle area and that he wants to take her 'away from the area in which these things have happened to her' and into a better environment. He appears particularly to wish to prevent her from getting into the central business district of Fremantle. He appeared to concede in Hearing 1 (ts 9 10, 22 March 2018) that 'it is possible to place her in … one of the surrounding suburbs and make sure she doesn't get into the centre of Fremantle. But I I just don't see the point of restricting her like that'. He claims that all of the facilities available to her in the Fremantle area are available in just about every other suburb.
He is open about the fact that his second purpose in relocating her to Forrestfield is to more easily facilitate the transition of responsibility for the oversight of K from himself to his children, in particular to D and, upon his return from overseas, J.
As E put it during Hearing 1 (ts 10 22 March 2018):
While I'm doing the caring … I'm sort of in contact with her virtually probably at least three or four days out of seven … my idea is that I have to remove myself because I'm 77 years of age, I'm not going to keep that up long, and my intention is that her siblings will be doing a bit more of this family interaction. Not that I expect them to take on the caring responsibility because they are they're young, they've got their own family, they're working fulltime and that sort of thing, but I guess that's …
… particularly in the traditional Asian thinking, you know the family is blood is thicker than water and so forth, … I certainly expect they will take interest.
… the thing is that at the moment for them to take interest to come to [K]'s rescue it will be at least half hour drive, so therefore, unless it's something terribly drastic, unless some special occasion … they're not going to make the trouble … I'm just trying to make it easy for the family to maintain some sort of continuity when I'm no longer around without having them to have to put in a great deal of sacrifice, that sort of thing.
E's evidence is that the Forrestfield unit is very secure and is at the rear of a gated community of units, with the unit front door being about 50 metres from the complex gate. (He specifically adverts to this matter because he says K likes to have her front door open when she is at home).
His concern is best expressed where he stated (ts 13, 22 March 2018):
… I believe [K] is unsafe living [in] Fremantle area. And, also, I guess the other thing is that [K] is not able to behave normally because her issue … otherwise possibly it might work out all right[.]
and at ts 42, 29 March 2018:
The original intention that [K] remain in Fremantle did have merit. [K] lived here over many years, but the recent abuse that [K] suffered brought back her memories of past transgressions that has altered the dynamics.
Yet [JCM] stuck to the past, calling only [K]'s relation to the area during the better days. I believe the [JCM] have her heart in the right place, however, her lack of knowledge, plus little communication with [K], led to the erroneous conclusion of Fremantle area as the best option for [K]. My application to assume the role to nominate [K]'s place of residence is purely to ensure she has the most secure and safe place to reside, one that [K] had expressed desire and preference for time and time again.
Connection of [K] to Forrestfield, should not be underestimated.
He appeared to concede that K's safety could not be guaranteed by moving to another suburb. He expressed the view that the Forrestfield unit was ideal and that he could not think of a safer place for her. He is clearly concerned about K's interaction with men. He referred to it in terms of 'exhibitionist' behaviour (ts 13, 22 March 2018).
Administration
E's case was that he continue to be K's administrator until J's return to Perth at which time he would wish to hand the administration over to J. He appeared not to accept any of the criticisms concerning his financial restrictions, appearing to regard the restrictions described by others as prudent financial oversight.
The case presented by the guardian
The guardian submits that K continues to need an independent guardian to make her accommodation decisions and now needs an independent administrator to assure the adequate meeting of K's needs.
She relied on her report to the Tribunal dated 19 March 2018, the contents of which was not to any great extent challenged by E.
Guardianship
JCM accepts the proposition that K needs to move from Bicton. Her position is that K remain within the precinct of Fremantle or its surrounding suburbs where she has lived for over 10 years out of respect for K and her frequently expressed wish to remain in the district, maintaining existing relationships in her community. She says that K has lived in that area for quite some time and that it is where she feels connected and bonded. Her evidence was that her decision was not made in a hurry but was a matter upon which she engaged with K from early in her appointment.
She gives credit to E for planning for the future and looking to involve the family but expresses the view that his plans disregard what K wants and are not in her best interests. She states that she has discussed possibly moving closer to her siblings with K but that her response has been negative. JCM gave evidence (ts 20, 22 March 2018) that she has talked with K about 'the benefits and the pluses and the good things' involved in such a move stating:
I have even driven up to Kalamunda, had a look myself, you know, when they talked about possibly [K] moving into a place that her mother once had. I have done a lot of research into this, because I know there's a big investment in this from all aspects of many family members.
And [K] doesn't want to budge. The reality is she wants to live in that district [Fremantle]. And even [E] admits that [K]'s siblings do not have a strong connection with her at the moment … I think possibly that will change in time. And if that does change in time, and [K] does want to relocate and move closer to her siblings, then we can look at that down the track.
… But for now, to move [K] would be a horrendous imposition on her; she would feel displaced, she would feel distressed, she would feel angry, she would feel isolated, and I can't see how right now that would be in her best interests.
At the moment I'm working very hard to get [K] connected to some great quality services provided through Autism WA. And that has been a struggle in itself, because everything we've tried to put into place gets undermined by either funds not being available or [K] not being available or not being supported. So that's an issue in itself again. So I feel like as a plenary guardian I'm not being given a flow to get things happening. I believe [K] needs more support to get her on track to where she can be, potentially, in her life.
JCM also gave evidence that in discussion with her, K had indicated that she did not have good memories of living in Forrestfield with her mother and that this was a factor in her not wishing to go back there.
Although acknowledging the fact that E is not seeking authority to determine services, JCM gave evidence to the effect that E's overinvolvement in the daytoday decisions in K's life fails to respect K's autonomy, interferes with the development of her independent relationships with carers and is not in her best interests. She gave evidence of the difficulty in coordinating services and of E's prior use of individuals sourced privately from the internet (rather than approved support agency workers); of his interference in what she is trying to achieve both by direct disruption when he attends at K's unit and by the financial limits that are imposed under his administration; of his view that he has a right to control what AAA support workers are doing; and of his undermining of the workers by his overt complaints made to K about them. She expressed the view that E does not have insight into K's disability. In her report to the Tribunal at page 5, JCM stated:
[E] often refers to his daughter as the 'old Kim' and advises that his daughter does not have a disability but is rather badly behaved and likes the 'rough stuff' and if anything attracts the bad boys in her life rather being a person (with a disability) who put herself at risk, and is vulnerable. This view has been presented to the guardian on many occasions, by [E], in conversations and emails to the guardian in which he makes statements such '[K] is the ringleader'. [E] appears to doubt his daughters vulnerability and following the alleged sexual assault of [K] in January 2018 the guardian was contacted by WAPOL for a welfare check as they were 'shocked' to witness the father's handling of [K] which involved shouting at her, with accusations and victim blaming which to a certain extent continues today. The guardian also received similar concerns from SARC who witnessed similar interactions.
She submitted at ts 21, 22 March 2018 that:
… he deserves a break. He deserves time out. He deserves retirement, and I don't begrudge him that. But he needs to allow me to intervene so I can set up services and behaviour management programs and risk management strategies to start dealing with those behaviours. And that's why [K] needs more support, so we can actually put those things in place.
… [E] is saying, "No, she doesn't, she's just badly behaved". Well, possibly she is, but we need services in place and more services to deal with them.
and further at ts 23 - 24, 22 March 2018, the opinion that:
I think she needs very strong, independent entities in her life when it comes to her decision-making. Because [K] does know what she likes. She does know what she wants. But she needs to be free of influence to think that through for herself. And [K] has had a lot happen to her good things and bad things and even though she's a woman 40 years of age, I think she's still learning how to be who she is, and I'm hoping that's what we can offer her. And when [K] first starting experiencing the support that [AAA] were giving her, we actually saw a really great new [K].
She was actually not doing presentations at the emergency department, she wasn't anxious, she was actually really flourishing.
… the decision I'm making here and now is not final. Things change in a few years. If it's better for [K] to live elsewhere, then we can revisit it, but for now, this is what [K] wants and we've got to listen to [K], and I don't think that a lot of that happens.
JCM expressed the view that E's desire to relocate K to Forrestfield was about convenience to other members of the family and not about K and her best interests; she acknowledges that E has dutifully fulfilled the role of carer and has provided his daughter with her needs but opines that E now feels his children should take on this role and in his mind this can only be done if she lives close to them.
JCM advocated for continuation of an independent guardian in accommodation decision-making and for the appointment of an independent administrator in place of E so as to ensure that adequate funds are available to facilitate appropriate expenditure for K, particularly on supports and services, the adequate furnishing and equipping of her accommodation, and to allow an appropriate level of purchasing choice by K, with the oversight of her carers, in her food and other domestic and personal shopping.
The guardian relies on the evidence of the AAA staff in support of her argument about the need for independence in accommodation and financial decision-making.
VM spoke about her interactions with K, saying at ts 49, 29 March 2018:
… I have had many conversations about where she would like to live and she has expressed wanting to stay in [the Fremantle] area to stay near the things that she goes to on a regular basis, because she does like the routine. So going to the Fremantle pool; going to the swimming lessons that she's going to. Going to the markets, there's all these things around her that she feels very comfortable with. But she expresses that her father doesn't want her there.
And doesn't want her to do those things necessarily. And he has insisted to her that Fremantle is not safe. She expressed that to me again today that … my dad says it's not safe, it's not safe, it's not safe
and at ts 50, 29 March 2018:
[W]hen I first met [K], she was always stressed in the beginning. And was always talking about killing herself, actually. In the beginning that was constant, and through my time with her she has just blossomed and is a much more open, fun she is becoming more feminine, she likes to wear nice things. We go and do lovely things together; we share some really nice experiences. And she is really involved with the community a lot more. So we will be out and she is a lot better with crowds. Initially she wasn't all that great, and so there are some days that she gets uncomfortable but we work on that together.
And she's, yes, much more open and enjoying enjoying life. She smiles a lot more now. We have lots of fun together. In the beginning it it was quite difficult to engage, because [K] just wanted to talk about lots of negatives, it seemed. But, since then, there's yes she has had some very negative experiences, but she's very open and engaged and a lot more enjoying life. That's what I've found. And we've got quite a connection. [K] is lots of fun[.]
She also gave evidence about limitations on the ability to shop and attend outings and activities because of the insufficiency of funds placed in K's account by E; of him sometimes giving them electronic vouchers to use to do the grocery shopping only to find when they attended at the store that the credit on the voucher had been used, causing embarrassment to K; and of the strict instructions given by E as to what the carers were and were not allowed to do and buy. She spoke of him removing items from the refrigerator if he doesn't think K should have them.
CL explained the role that the three AAA personnel played and about K's goals and the individual plan to which they were working. She spoke (at ts 45, 29 March 2018) of the good engagement by K and in particular the 'really good relationship' with VM and another care worker B. She spoke to reports that she as manager was receiving that 'right from the beginning [that K] was really enjoying it, and enjoying the experiences and the opportunity to have her own choice and control'. She also spoke about interferences by E at ts 47-48, 29 March 2018 as follows:
what we've found is [E] has an input into every single aspect of [K]'s life, so this just isn't about accommodation and in terms of funding, being able to give her any money. It's about it comes back to what she's eating, what activities, what her clothes are like, it's absolutely everything and we're seeing that on a daily basis with regular emails … that's definitely a constant email trail. But from a support worker role, that is a physical intervention, and whether it's face-to-face or it's written in the communication book that we have out of the house. That is regular and has been detrimental to the supports being supplied to [K].
JCM gave evidence that, from her observations, the furniture in K's unit is all secondhand and of very poor quality, and that she could do with some upgrading and some better items.
Family members
Administration
After some initial confusion as to their position, K's siblings J and D put themselves forward jointly as alternative administrators if there was an issue about E continuing in the role.
J acknowledged that K did not appear to have access to her money 'in the way that she needs access to it and wants access to it … in a sensible manner, not in a … "cheap arse" way but, you know, in a reasonable manner which includes some luxuries and whatever else' ts 68, 29 March 2018.
Concerningly, J seemed to place little significance on K's wishes as to who should be her administrator.
It was not disputed that J and D are persons of good character however JCM expressed the view that they have not had a great deal of involvement with K and do not necessarily understand what is happening for her.
JCM expressed a concern about their independence from E and their ability to resist acting in accordance with his wishes concerning K. JCM adverted to the potential for a sense of cultural obligation and duty to E affecting decision-making by the siblings, and specifically referred to the conceded fact that, in very recent times, D and J have been the joint beneficiaries of a property transfer by E (the family beach house) to the exclusion of the other siblings which transfer occurred contemporaneously with discussions about the ongoing and future management of K's affairs. The implication put is that this was done as a form of inducement to them to support E's plans for K. At least one of the excluded sibling G expressed surprise and concern at the transfer to just two of the five siblings, particularly that K and B, the other two siblings who live locally, had been excluded.
J disputed that E would be able to exert influence on him and D concerning decisions for K. He disputed that the beach house transfer was in any sense an inducement but could not satisfactorily explain why all siblings did not benefit equally. He said that he and D would keep the beach house in the family for the use of all the family members but acknowledged that there was no formal restriction on its sale. He sought, somewhat bizarrely, to paint the transfer as onerous (in terms of expenses), completely ignoring its capital value to D and himself.
Guardianship
Other than to state that he wanted K to be safe, J did not support either E's or JCM's argument.
G opposed E's application as he did not support K moving to Forrestfield. He expressed concern that if K resided at the Forrestfield unit, the burden of supporting and overseeing K would in fact fall to his mother as living where she does at present, she would be located geographically the closest to the unit, at least for the time being. He expressed the view that 'it would be an absolute disaster for Mum' (ts 62, 29 March 2018) and would be an unfair imposition upon her. He also expressed the view that K would not want her mother in her life in this way either.
G and J agreed that there was some consideration being given to their mother moving from the large property where she is now (the previous family home) to a smaller property she owns in Kalamunda and for J and his family to negotiate with her to move into the former family home on their return to Australia. These are all matters for the future. It is unclear if that is what will occur. It appears that J also has a home in Kalamunda.
What is clear is that the interests of a number of parties are involved in those relocation decisions. Suffice to say it is unclear who will reside closest to the Forrestfield unit and therefore what level of support might be available to K if she lived there. G also raised the uncertainly of J's future work arrangements as an engineer of him perhaps needing to work on site on a 'fly in fly out' basis, taking him away from Perth for perhaps weeks at a time. Such arrangement too are entirely unclear.
K's wishes
K gave evidence in camera to the Tribunal on two separate occasions. On the two occasions, her evidence and expressed views were completely contradictory. The first occasion (Hearing 1) was at a time when she was in her usual routine where she resided in the Bicton unit and had regular contact not only with E but with her support workers from AAA and with JCM. She clearly and actively expressed her view which was consistent with the argument put by JCM. K spoke positively of JCM stating that she trusted her and wanted her help. She spoke of wanting someone outside of the family to organise her bills and money.
The second occasion (Hearing 2) was in circumstances where, because of an assault that had been perpetrated on her, K had moved to reside temporarily with E, in the home where he resides with Y, and had had no contact with any of her independent support persons for almost a week. The Tribunal accepts that her contact with those supports, although still sanctioned by her guardian, had either been cancelled or thwarted by E, either deliberately or by putting his own needs ahead of K's needs and of her booked arrangements and activities. As a consequence, on three consecutive days, K missed what was described by JCM as an important medical appointment, a social session with a carer, and her swimming session. In addition, it meant that K had had no interaction with anyone independent of E in the week leading up to Hearing 2. The Tribunal rejects as inadequate and, in relation to the carer session, plainly untrue, E's attempts to explain his failure to put K's needs first during these days.
Evidence has been provided from both E, on the one hand, and JCM and the AAA workers on the other hand, as to what K says to them that she wants. Their evidence is entirely contradictory on this point. K has a perfect right to express her wishes as she chooses. The Tribunal must determine what if any weight must be given to the wishes she expresses.
Consideration
The Tribunal accepts that it is highly likely that, when in different situations, K has expressed different things to different people.
It is accepted by everyone, the Tribunal included, that K loves her father and wishes to please him and to be seen to do as he wants.
The Tribunal accepts that K is highly susceptible to his influence.
The Tribunal accepts that E loves his daughter and is trying to do his best by her as he sees it. He has clearly devoted much of the latter part of his life to her care and support. He clearly expects, as her father, to be her decision-maker. He acknowledges his cultural background as influencing the general way he approaches this matter.
A person acting as a guardian is required by s 51(1) of the GA Act to act in the represented person's best interests. Guidance as to what this means is provided in the factors (a) to (h) in s 51(2).
In general terms, these factors require that a guardian:
(a)advocate for a person;
(b)encourage a person to participate in the community;
(c)act so as to build capacity where possible;
(d)protect the person physically and emotionally;
(e)take into account as far as possible a person's expressed wishes;
(f)restrict the person's rights as little as possible consistent with reasonable protection;
(g)protect existing supportive relationships; and
(h)maintain family, cultural and other relevant connections.
Factor (d) relates to safety and specifically references 'protection from neglect, abuse and exploitation'. It however does not attract a priority rating as against other factors. In the view of the Tribunal, the other factors listed are just as important in their application as factor (d). That is not to say that a person's safety is unimportant. Rather it is to emphasize that safety is not everything. It must be considered in conjunction with the other factors. The decisions of a guardian require risk assessment and a balancing of the need for protection against the need for encouragement to engage and participate and to exercise autonomy with appropriate support.
It is entirely understandable, given the several unfortunate assaults on K, that E would be concerned about her safety and would seek to protect her and warn her. However, to play on her fear and to assert persistently to her that she is 'not safe', in a way that clearly causes her agitation and upset, particularly in circumstances where she is prevented by him from discussing his concerns with others she trusts who might provide an independent perspective and assist in teaching and modelling safe behaviour, is, in the view of the Tribunal, not in K's best interests.
The Tribunal does not accept that there is any evidence to support the notion that K would be any safer living in the Forrestfield unit than living in any of the suburbs closer to Fremantle. There is no reason to believe that suitable accommodation cannot be found in those suburbs. Nor does the Tribunal accept that there is any evidence supporting the notion that residing in the Forrestfield unit will necessarily protect K from the sorts of issues that have arisen for her from time to time at her two previous addresses. E's unit may be secure but the plan remains that K will live there alone and will come and go as she wishes. To that extent, it cannot be established that mere geography will assist in her protection.
The Tribunal finds that, rather than asking K, in an open way, what she wishes to do, and working with her to make a decision, E has approached the issue of her relocation by emphasising risk and telling her what he thinks she should do, and then interpreting her endorsement of his articulated view as a freely expressed 'choice' by her. He has sought to control the minutiae of her life and to undermine those who would seek to support her in exercising choice for herself. In the view of the Tribunal, seen in the best light, E fails to understand K's susceptibility and is unable to see the influence that he has over her. Viewed in the worst light, he is guilty of deliberately manipulating her into following his choice. Either way, in the view of the Tribunal E's approach fails to appropriately respect K's autonomy and right to choice in the matter, and her right to guidance and advice from persons other than himself.
It may be that after the assault between the two hearings that K has become more fearful but the Tribunal takes the view that her wishes as expressed to JCM and the AAA workers over time are likely to be less constrained by external influence and more likely to reflect what she genuinely feels herself.
In the view of the Tribunal, there is a conflict of interest in E being the guardian for accommodation. His decision-making in this respect is driven not only out of concern for K (which the Tribunal accepts is genuine) but is also driven, (in the Tribunal's view to a substantial extent), by his own need, in his interests, to transition responsibility for the oversight of K from himself to his children, and by what he perceives to be their need, in their interests, for her accommodation location to be convenient geographically for them.
In addition, by failing to sufficiently take account of the other factors in s 51(2) and to overly and unreasonably weight factor (d), E has shown himself to be unable to act appropriately in K's best interests.
In addition, the Tribunal is concerned about E's ability to understand the nature of K's disability. There is a tone of criticism in his comments regarding her behaviour and a sense that he blames her inappropriately for some of the things that have happened to her. He also appears to fail to understand the benefits to her of the interactions that she has with the AAA support workers and her potential to develop skills and to improve the quality of her own life now that she has appropriate support. He fails to accept that others may have skills that exceed his own to assist her. This is reflected in the limitations that the Tribunal accepts he has placed on the availability of funds to meet her needs and his interference in the daytoday care and support arrangements. In this respect the Tribunal accepts in its entirety the evidence of the AAA staff.
The Tribunal accepts that the wishes expressed by K at Hearing 1, and as expressed to JCM and the AAA staff on many occasions in the past are more likely to reflect her genuinely held and freely expressed wishes as to where she should live and that someone other than family should manage her money. K's statements that she trusts JCM and wants her help and wants her involved are also accepted as freely made and as genuine. The Tribunal accepts that K says things to her father that she feels he wishes to hear out of love and respect and is unable to disagree with views expressed by him to her.
Although through most of Hearing 2, K appeared calm, in the in camera session she presented as more agitated and persisted in stating the concerns of her father that Fremantle was not safe; that she could not live there. She spoke of little else. She was unable to even acknowledge that she had changed her mind, dogmatically repeating as her wish that she wanted to live in the Forrestfield unit.
Her evidence was populated with repeated stock phrases that appeared to the Tribunal to have been rehearsed and which were often justified by her by reference to what her father said 'because Dad said'.
The Tribunal finds that the views expressed by K at Hearing 2 are unlikely to constitute wishes freely expressed and views genuinely held by her and are more likely to have either been 'coached' by E, or at least have been stated by K as a result of having been exposed to only E's views and influence in the days prior to Hearing 2. In the view of the Tribunal, E should not be K's limited guardian for accommodation decisions given the above findings.
E claims that JCM is failing to act in K's best interests in relation to the accommodation decision.
The Tribunal rejects that submission. In the view of the Tribunal, JCM is endeavouring to balance all of the aspects of s 51(2) in an entirely appropriate way. K's evidence at Hearing 1 and the evidence of the AAA staff corroborates JCM's own evidence that the accommodation issue is being carefully considered taking into account all appropriate issues including K's safety.
It is noted that in E's evidence, he stated (ts 13, 22 March 2018):
So all other aspects of guardianship, I believe, should remain in [JCM's] hands. I'm quite happy with [her] involvement. She has been hardworking. She's doing a lot of good things for [K] and with the rest of the it's just that there is a disagreement about where [K] should live that's all.
When it was put to him he agreed that in relation to all of the other kinds of decisions that are being made by the guardian for K that the delegated guardian is acting entirely properly.
K's needs can best be met in the view of the Tribunal by the appointment of the Public Advocate as guardian regarding K's future accommodation needs.
As to financial matters, there is no suggestion of any defalcation or misappropriation, but the Tribunal is satisfied on the basis of the evidence from the AAA workers that E's arrangements for the management of K's funds are not working in her best interests. Despite meetings to discuss budget arrangements, funds have not been forthcoming in a ready and appropriate way to meet K's reasonable needs. In the view of the Tribunal, K needs an independent administrator.
In the Tribunal's view, it is not in K's best interests for her siblings to look after her finances. Again, there is not any suggestions that they are not honest. But given the fact that J is still overseas and given the lack of recent involvement by the siblings in K's life, K's wishes as expressed in Hearing 1 and particularly given the family dynamics, an independent administrator is appropriate. That is not to say that in the future, if the family dynamics change, there is not room for a reconsideration of this.
In these circumstances the Tribunal finds that it is in K's current best interests to appoint the Public Trustee as her plenary administrator.
The Tribunal was satisfied that K meets the criteria for the making of both guardianship and administration orders and was in need of both and made the following orders.
Orders
The Tribunal declares that the represented person, [K]:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)is in need of an administrator of her estate;
(c)is incapable of looking after her own health and safety;
(d)is unable to make reasonable judgments in respect of matters relating to her person;
(e)is in need of oversight, care or control in the interests of her own health and safety; and
(f)is in need of a guardian;
and the Tribunal orders that:
1.The Public Trustee of 553 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 Act.
The guardianship order dated 27 February 2017 is confirmed as follows:
2.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed plenary guardian of the represented person with all the powers and duties conferred by the Act.
3.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
4.The section 86 application by E is otherwise dismissed.
5.The administration and guardianship orders are to be reviewed by 29 March 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS H LESLIE, MEMBER
18 SEPTEMBER 2018
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