K
[2017] WASAT 45
•15 MARCH 2017
K [2017] WASAT 45
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 45 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2903/2016 | 7 NOVEMBER 2016 (WITH FURTHER SUBMISSIONS RECEIVED ON 10 JANUARY AND 3 FEBRUARY 2017) | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 15/03/17 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | The applications for the making of guardianship and administration orders are dismissed | ||
| B | |||
| PDF Version |
| Parties: | K |
Catchwords: | Guardianship and administration Mental disability Whether able to protect health and safety Whether in need of oversight Whether able to make reasonable judgments about personal and financial matters Psychological problems Clear and cogent evidence needed to rebut presumption of capacity Beneficial interest in funds held by a Court Person's actual estate Purpose and intent of Guardianship and Administration Act 1990 (WA) Protective jurisdiction Freedom of decision and action Applications dismissed |
Legislation: | Guardianship & Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 84, s 97(1)(b)(iii) |
Case References: | FS [2007] WASAT 202 GC and PC [2014] WASAT 10 MC [2004] WAGAB 5 Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 S v State Administrative Tribunal of Western Australia [No2] [2012] WASC 306 SM [2015] WASAT 132 |
Summary | K was a 63 year old woman who lived independently in public housing in Western Australia.,K was in receipt of the disability support pension.,K had a beneficial interest in funds held by the Supreme Court of Victoria (Court). Those funds (referred to as funds or Court funds) were the product of an action taken by K, by her litigation guardian, in respect to her interest in her late father's estate.,The Intensive Support Team of the Funds in Court of the Supreme Court of Victoria (applicant), made applications in Western Australia for the appointment of a guardian for K and the appointment of an administrator of her estate.,The applicant claimed that K suffered from a multitude of physical and mental health issues which appeared to be progressively deteriorating and that a trigger for the applications was the threat of a joint suicide by K and her partner D because they maintained insufficient funds were being released by the Court. ,A clinical psychologist had assessed K's mental state as impacted by significant ongoing psychological issues that appeared to have arisen principally from childhood trauma. This predisposed K to enter into relationships characterised by abuse and dependency with features of timidity and a lack of assertiveness.,The clinical psychologist had subsequently assessed K as not being at serious risk of self-harm and K denied any wish to self-harm.,The clinical psychologist said that the psychological problems faced by K did not imply that she was unable to manage her pension income.,Because of the ways in which K has acquired strategies over a long period of time to protect herself in her relationships with others, the Tribunal could not be satisfied to the required standard that K lacked capacity for the purposes of the making of a guardianship order.,The Tribunal further concluded that even if a guardianship order could be made, the appointment of a guardian would not provide a material benefit to K's circumstances sufficient to compensate for the loss of the freedom of her decision and action that a guardianship order would entail.,The application for the making of a guardianship order was dismissed.,As regards the application for an administration order, the Tribunal found that K's estate consisted of her pension income and a beneficial interest in the Court funds.,The Tribunal was not convinced on the evidence that K was unable to manage her pension income. ,The applicant argued that if K were placed under an administration order appointing the Public Trustee in Western Australia (Public Trustee), then Court funds could be channelled to the Public Trustee upon which K could make requests. The further argument was that funds held locally could be more flexibly disbursed.,The Tribunal was not convinced by the applicant's argument. Although it was possible that an administration order could be made simply capturing K's right to her beneficial interest in the Court funds it seemed to the Tribunal that such an order would only add another bureaucratic layer to the management of those funds. The Tribunal could not envisage the Public Trustee dealing with the requests of K and D in a materially different way particularly if K and D continued to maintain that the Court funds belonged to K and should therefore be available on demand.,The application for the making of an administration order was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : K [2017] WASAT 45 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 7 NOVEMBER 2016 (WITH FURTHER SUBMISSIONS RECEIVED ON 10 JANUARY AND 3 FEBRUARY 2017) DELIVERED : 15 MARCH 2017 FILE NO/S : GAA 2903 of 2016 MATTER : K
- Represented Person
Catchwords:
Guardianship and administration - Mental disability - Whether able to protect health and safety - Whether in need of oversight - Whether able to make reasonable judgments about personal and financial matters - Psychological problems - Clear and cogent evidence needed to rebut presumption of capacity - Beneficial interest in funds held by a Court - Person's actual estate - Purpose and intent of Guardianship and Administration Act 1990 (WA) - Protective jurisdiction - Freedom of decision and action - Applications dismissed
Legislation:
Guardianship & Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 84, s 97(1)(b)(iii)
Result:
The applications for the making of guardianship and administration orders are dismissed
Summary of Tribunal's decision:
K was a 63 year old woman who lived independently in public housing in Western Australia.
K was in receipt of the disability support pension.
K had a beneficial interest in funds held by the Supreme Court of Victoria (Court). Those funds (referred to as funds or Court funds) were the product of an action taken by K, by her litigation guardian, in respect to her interest in her late father's estate.
The Intensive Support Team of the Funds in Court of the Supreme Court of Victoria (applicant), made applications in Western Australia for the appointment of a guardian for K and the appointment of an administrator of her estate.
The applicant claimed that K suffered from a multitude of physical and mental health issues which appeared to be progressively deteriorating and that a trigger for the applications was the threat of a joint suicide by K and her partner D because they maintained insufficient funds were being released by the Court.
A clinical psychologist had assessed K's mental state as impacted by significant ongoing psychological issues that appeared to have arisen principally from childhood trauma. This predisposed K to enter into relationships characterised by abuse and dependency with features of timidity and a lack of assertiveness.
The clinical psychologist had subsequently assessed K as not being at serious risk of self-harm and K denied any wish to self-harm.
The clinical psychologist said that the psychological problems faced by K did not imply that she was unable to manage her pension income.
Because of the ways in which K has acquired strategies over a long period of time to protect herself in her relationships with others, the Tribunal could not be satisfied to the required standard that K lacked capacity for the purposes of the making of a guardianship order.
The Tribunal further concluded that even if a guardianship order could be made, the appointment of a guardian would not provide a material benefit to K's circumstances sufficient to compensate for the loss of the freedom of her decision and action that a guardianship order would entail.
The application for the making of a guardianship order was dismissed.
As regards the application for an administration order, the Tribunal found that K's estate consisted of her pension income and a beneficial interest in the Court funds.
The Tribunal was not convinced on the evidence that K was unable to manage her pension income.
The applicant argued that if K were placed under an administration order appointing the Public Trustee in Western Australia (Public Trustee), then Court funds could be channelled to the Public Trustee upon which K could make requests. The further argument was that funds held locally could be more flexibly disbursed.
The Tribunal was not convinced by the applicant's argument. Although it was possible that an administration order could be made simply capturing K's right to her beneficial interest in the Court funds it seemed to the Tribunal that such an order would only add another bureaucratic layer to the management of those funds. The Tribunal could not envisage the Public Trustee dealing with the requests of K and D in a materially different way particularly if K and D continued to maintain that the Court funds belonged to K and should therefore be available on demand.
The application for the making of an administration order was dismissed.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
FS [2007] WASAT 202
GC and PC [2014] WASAT 10
MC [2004] WAGAB 5
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
S v State Administrative Tribunal of Western Australia [No2] [2012] WASC 306
SM [2015] WASAT 132
Introduction
1 K is a 63yearold woman who lives independently in public housing in Western Australia.
2 She lives with D.
3 In 2015, K, by her litigation guardian, D, made a claim on the estate of her late father in the jurisdiction of the State of Victoria (inheritance claim).
4 On 10 December 2015, the Supreme Court of Victoria (Court) by order approved a compromise of K's inheritance claim. The Court ordered that the funds due to K be paid into the Court and the Senior Master presently holds those funds for K (court funds). No payment can be made from the court funds other than by an order of the Court.
5 In July 2016, the Court (the Intensive Support Team of the Funds in Court) (applicant), made applications in Western Australia for the appointment of a guardian for K and the appointment of an administrator of her estate (applications).
6 The applications were made pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
7 On 31 August 2016, the applications were referred to the Public Advocate pursuant to s 97(1)(b)(iii) of the GA Act.
8 The applications were heard on 7 November 2016. In attendance were representatives of the applicant, K, D and DD, a Senior Investigator with the Office of the Public Advocate.
9 The decision was reserved.
10 On 10 January 2017, the applicant made a further submission to the Tribunal. The Public Advocate was asked to respond and did so on 3 February 2017.
Decision
11 I have decided to dismiss the applications. My reasons follow.
Relevant legislation
12 The primary concern of the Tribunal is the best interests of K: s 4(2) of the GA Act.
13 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.
14 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.
15 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.
16 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.
17 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.
18 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.
19 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.
20 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.
K's capacity (medical and allied health evidence)
21 The Tribunal has been provided with the following reports:
• 30 July 2015, Psychological Report by AB, Clinical Psychologist (July 2015 report);
• 4 July 2016, Dr W, GP letter to the applicant;
• 9 August 2016, Dr W, Medical Report;
• 7 October 2016, further report from AB, Clinical Psychologist (October 2016 report); and
• 1 November 2016, Dr C, GP Medical Report.
22 AB also gave oral evidence.
23 Dr C states that she has only seen K twice since she left the care of Dr W and she is unable to form an opinion as to K's capacity to make personal and financial decisions.
24 Dr W refers to AB's July 2015 report and opines that although he has no direct assessment, there would be great uncertainty and doubt as to the ability of K to handle complex financial decisions. He says further that because K insists on 'certain treatments', does not comply with treatment and the presence of 'psychosomaticism', suggests a lack of ability on the part of K to make her treatment (medical) decisions.
25 In all other respects Dr W is unsure as to K's decisionmaking capacity but considers it 'entirely appropriate' for the applicant to proceed with the applications.
26 The July 2015 report of AB was prepared for the inheritance claim.
27 For the purpose of the July 2015 report, AB saw K (together with D) on four occasions.
28 In the July 2015 report, AB commented as follows:
• K reported a very traumatic childhood characterised by regular physical, emotional and sexual abuse from her parents and others;
• K was an extremely poor historian with an impaired memory of past and recent events. She seemed to have no sense of chronological time when recounting events of her childhood and past adult life;
• Significant impairment in the capacity to accurately record details of childhood experiences is often observed in individuals who have been subject to repeated and protracted childhood emotional trauma;
• K appears to have had a history of dependent and dysfunctional relationships with males in which she has felt abused and manipulated; and
• K stated that she had a long history of chronic pain symptoms and acknowledged that she was dependent upon medication for her pain management.
29 In his assessment of K at the time, AB relevantly stated:
[K] has a long-standing history of mental health problems with episodic mental health involvement precipitated by episodes of not coping and characterised by symptoms of anxiety and depression, sometimes with instances of self-harm or suicidal ideation, together with certain characteristic features of borderline personality disorder. These features include a pervasive pattern of instability of interpersonal relationships, efforts to avoid real or imagined abandonment, persistently unstable selfimage and poor sense of self, chronic feelings of emptiness, stressrelated paranoid ideation, persistent problems with impulse control and emotional regulation.
30 AB assessed K as incapable of providing consistent instructions regarding the inheritance action and that she would not have the motivation, resilience or emotional stability to pursue a sustained legal action.
31 In the October 2016 report, AB refers to the conclusions he reached in the July 2015 report but cautioned that the assessment should not be interpreted to imply that K is incapable of managing her financial affairs.
32 AB comments that K lives independently, manages her finances and has maintained regular employment. She has maintained her public housing rental and was living at her current address prior to inviting D to reside with her when he was homeless.
33 AB confirms that K has a lengthy history of mental health problems and has been given a number of different diagnoses over the years, some of which he says are no longer applicable and questions whether certain labels were ever appropriate.
34 At the time of writing the October 2016 report, AB assessed K as not being at any serious risk of self-harm.
35 In conclusion, AB states in the October 2016 report:
This, of course, is not to discount the fact that [K] does still have significant emotional problems, most notably; a poor sense of self, problems with emotional regulation, efforts to avoid real or imagined abandonment, stress-related paranoid ideation, and a pervasive pattern of instability of interpersonal relationships characterised by dependent and dysfunctional relationships with males in which she has felt abused and manipulated and typically tends to react in a timid and non-assertive manner.
36 AB goes on to say that K is not unique in this regard and that many individuals with similar emotional issues continue to independently manage their financial affairs.
37 In his oral evidence, AB states that he has seen K on nine occasions since the July 2015 report.
38 AB states that he would characterise K's problems as psychological rather than psychiatric and that whilst they cause her some distress in her life on an ongoing basis they do not directly prevent her from continuing to function and manage her life.
39 AB says his understanding is that K's last hospital admission for mental health issues was in the mid-1990s and since that time she has not had any other admissions or regular contact with psychiatric services. He assesses K as still having a number of the features of a borderline personality disorder but states that she has been managing herself very well in recent times.
40 AB states that some of the mental health diagnoses made in the past were provisional and were not confirmed.
41 In responding to the applicant's concern that in June 2016 correspondence was received from D that K's depression was worsening and they were contemplating a joint suicide, AB opines that anyone who has a history of depression is potentially susceptible to becoming depressed at some later stage.
42 AB says that K may cycle through periods of low mood in her life when she struggles with social and emotional problems. His view of the threat of suicide in June 2016 is that it was an impulsive reaction arising out of anger and frustration than any real sense of risk.
43 AB says that the conditions in 2016 are different to what K faced in 2015 during the inheritance claim, when she was dealing with the emotional stress of her father having recently died and her having to reflect on traumatic childhood experiences.
44 AB states that in the course of therapy over the last 12 months K has moved on from her emotional state as it was in 2015.
45 AB states that K has expressed to him that at times she has a concern about her safety insofar as there have been conflicts with friends who have come to visit her and who at times have taken items from her home without her knowing. She has also acknowledged that at times she and D have arguments and disagreements and that the arguments can become heated on occasion. K has expressed concerns about the future of the relationship with D with feelings of insecurity but otherwise there have not been any other aspects of concern about her safety.
46 When asked by DD as to whether, in his view, K remains capable of managing her personal affairs, for example, deciding where and with whom she should live, consulting her medical practitioner and giving consent to treatment, AB is of the view that K can do these things.
The applicant
47 In the written application, the applicant states that K suffers from a multitude of physical and mental issues which appear to be progressively deteriorating. Reports have been received that K is an intravenous drug user with a history of polysubstance abuse and a dependence on pain killers.
48 Referring to the correspondence received in June 2016, the applicant says that K and D threatened a joint suicide if court funds were not released to them, which prompted the applicant to contact the local police to undertake a welfare check and which was the trigger for the applications.
49 The applicant contends that K is not in receipt of any treatment despite her extensive psychiatric history. The applicant submits that on the basis of AB's assessment that K has some of the symptoms of borderline personality disorder, she has a disability for the purposes of the making of guardianship and administration orders. The applicant further submits that it might be appropriate for K to undergo comprehensive neuropsychological testing regarding her capacity.
50 The applicant states that since the inheritance funds were paid into the Court in January 2016, several concerns have been noted regarding K's behaviour including, K not paying her share of the rent to the public housing authority, repeated occurrences of theft reported by K which have not been substantiated and have been used by K as reasons to request additional court funds, regular requests from D for financial assistance on the basis that he and K are living below the poverty line (despite a budget provided to the Court that indicates a likely saving of $190 per fortnight on the current income of K and D) and reports from K that D is not paying his share of the property and living expenses.
51 In oral evidence the applicant states that engaging with K and D in a productive sense is not possible and there continues to be in the applicant's view, unreasonable requests for court funds indicating an inability to budget their personal finances.
52 The applicant states that the funds originally transferred to the Court were approximately $132,000 and currently the balance of the court funds is about $121,000.
53 The process for deciding whether court funds should be released is as follows. A request for funds will be received and the relevant trust officer will assess whether the request is reasonable in the context of how much money is held in trust, whether the request is affordable and whether it is in K's best interests to release the funds. The request, together with the recommendation of the trust officer, is forwarded to the relevant court officer.
54 The applicant states that court funds have been released for a new washing machine, blinds, clothing, and a new vacuum cleaner. Over $5,000 was made available for new bedroom furniture and $300 was sent to K in respect to D's birthday.
55 The applicant refers to a request to pay a fine of $1,200 believed to be for driving offences which was refused because the Court registrar required information about the circumstances of the fine. In respect to the request for additional information regarding the fine, K states:
No. It's not any of your business. This is my money were talking about. Not government money. My money. (T:42; 07.11.16)
56 There has not been a request for the provision of a regular allowance for K, however such allowance would need to be assessed in the context of the budget prepared for the Court on figures provided by K and D which indicated a potential saving of $190 a fortnight.
57 The applicant states that the Court can direct court funds to an appointed administrator for management. Alternatively, the Senior Master of the Court can also consider a transfer of the lump sum to a Public Trustee or equivalent.
The evidence of K and D
58 K submits that she is able to look after herself. She says that she does the best she can with her pension income and is capable of managing her finances given that she has raised three children.
59 K states that she is in receipt of the disability support pension and that she is also employed to sell The Big Issue. She says that after her rent is deducted at source as well as automatic provision made for gas, electricity and water, she receives $470 per fortnight into her bank account. K says that she does not receive much income from the sale of the The Big Issue.
60 K states that she and D jointly manage finances and that everything is shared. She is the tenant for the purposes of the public housing lease and she has been living in her current accommodation for about 18 years. K states that she has no intention of moving from that accommodation.
61 Regarding requests for funds from the Court, K states:
Everything I asked, they reject and they say no. (T:33; 07.11.16)
62 D states that the joint gross income per fortnight is $1827. The joint expenses which D says total $1,685 (on the figures given by D, it is in fact $1,635) are for rent $420, groceries $320, water $10, telephone $35, electricity $60 (which includes repayment of a debt of about $200), gas $60, cable TV $50, Internet $30, pets $60, cigarettes $330 and pharmacy $260.
63 D states that the typical requests for funds from the Court are for clothing, Christmas and birthdays. Funds have also been requested for a dog door and for holidays.
64 D states that in the letter that was sent to the court in June 2016 he asked for an advance of $1000 soon after he and K had been robbed because they had to sell some of their possessions to get by. He says that the letter which mentioned the threat of suicide came about as a consequence of the frustration felt by him and K and because of the consistent refusal of the Court for requests for funds.
65 D submits that it is ridiculous that requests for funds are being denied when the Court is holding over $100,000 for K.
66 Both K and D oppose the making of guardianship and administration orders.
The Public Advocate
67 DD provided a written report (report) and gave oral evidence at the hearing.
68 DD conducted telephone interviews with K and visited her home.
69 DD states that on the home visit he observed that K's home and surrounds were 'fairly tidy and relatively clean' (Report at page 10).
70 DD relevantly states:
• K was at a loss to understand why her competency was being questioned. She asserted her independence and said that the counselling sessions with AB were progressing well. K was very proud of her work selling 'The Big Issue' and her mentoring work with 'street kids'.
• K denied wanting to end her life.
• DD observed that K had a tendency to jump from subject to subject and appeared to have some memory difficulties but was 'generally coherent and capable of answering most questions' (Report at page 10).
• Both K and D appeared to link the inheritance claim with the Tribunal proceeding, K stating that the funds held by the Court is her money. DD observed that K became noticeably upset about not being able to access the funds she believes she needs from the Court.
• Neither K nor D were happy with the officers of the Court with whom they have dealt, with particular reference to what they perceived as the officers' communication style and the refusal to provide funds on some occasions.
• K expressed a level of insecurity in her relationship with D. She discussed the volatility of the relationship. DD noted that concerns had been raised as to D'sinfluence over K and in his oral evidence DD says he agrees that D is influential in K's life but not to the extent where that goes beyond what K herself wants.
• K appears to be overwhelmed by the Tribunal proceeding.
71 DD states that he spoke with a number of people including a caseworker from a family violence service and the local police and was advised that while there had been contact in the past, this was some time ago. DD also spoke with a neighbour who has lived next door to K for 10 years. He had not observed violence between K and D and said that he would call the police if he came aware of such behaviour. He considered that K was smart enough to get out of a difficult relationship.
72 DD referred to a letter which is before the Tribunal from another neighbour, R. The letter states that R has found K to be competent in handling money and in paying her bills and that she has found that K has been able to put food on the table and feed her animals.
73 DD states that he has compared both the budget prepared by the Court and budget figures prepared by D and K and considers that both budgets are inadequate. He notes that the surplus of $190 per fortnight suggested by the applicant does not take into account D's share of the rent after which the budget would be in deficit. However:
The household management of funds is not good, but I would not go as far as to suggest it demonstrates a causative link to any 'mental disability' [K] may have. I suspect that [K] has functioned at this level for many years and the benefit of an appointed administrator is questionable. (Report at page 8)
74 DD agrees with the evidence and opinion of the clinical psychologist AB in that:
Based on my interview with [K] … she appears to be generally competent, has insight into circumstances, and while clearly impacted by past issues (severe domestic violence and child abuse), she demonstrates a degree of resilience. (Report at page 3)
75 DD submits that whilst K struggles financially he does not believe it is because of any particular mental disability.
Submissions received after the hearing
76 On 13 January 2017, the Tribunal received a submission from the applicant advising that K had been in contact with the Public Advocate after a 'domestic incident, the nature and gravity of [which] we are not certain'. The applicant suggested that the Tribunal contact the Public Advocate regarding the incident and determine whether it warranted further investigation.
77 The Tribunal sought a response from the Public Advocate on 1 February 2017 which was received by way of a submission from DD, on 3 February 2017.
78 DD states that the 'domestic incident' to which the applicant refers occurred on or about 1 December 2016. DD says that he spoke with K and then D subsequent to which he had communication with the applicant and, finally, discussions on 2 February 2017 with the neighbour R, K and with AB.
79 The submission of DD reveals:
• K's relationship with D is subject to domestic violence and D can be a controlling influence.
• K has chosen not to seek a violence restraining order.
• K told DD that she is accustomed to being abused in her life and that she is able to deal with it. She knows what she can do and where she can go if she felt that was necessary. She has a special button on all her land lines which alerts the police to any incident.
• K has previously stopped D from having access to her bank account after he once took money from the account through internet banking.
• In his discussions with K, DD observed K to move from a highly emotionally charged state in one conversation to ultimately that of being calm and articulate.
• K continues to be very opposed to the prospect of guardianship and administration orders and says she can make her own decisions.
• R, the neighbour, told DD that in her view, the relationship between K and D was not good and that the current incident was worse than usual. R told DD that the police have told K that she does not have to continue with the relationship with D. Despite this, R stood by the sentiments expressed in her letter to which DD referred in his evidence that K is able to deal with her personal issues and her money.
• DD made contact with AB who advised that he had not seen K since the Tribunal hearing. She had appointments with him in November and December but had not attended. DD reports that AB said that K is not always forthcoming with information and that at times she can become extremely distressed and hysterical but later when she is spoken to she becomes calm but will not provide any real information as to the nature of her previous distress. AB was of the view that at times K exaggerates her circumstances and confabulates. Despite this AB said to DD that he maintained the opinions expressed in his reports and oral evidence.
Discussion of the issues
80 The general protective intent of the GA Act was expressed by Heenan J in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 when he said at [43]:
[I]t is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, orillconsidered personal decisions or action, or by unscrupulous orilladvised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.
81 The position of a person before protection is for them to be allowed the freedom to make their own decisions, their own mistakes and experience the consequences.
82 The inherent tension between a person's right to their freedom of decision and action and the need for protection which results in the removal of elements of that freedom, is encapsulated in the provisions of the GA Act, in particular the principles contained in s 4 when read together with s 43 and s 64 of the GA Act.
83 Section 4(3) of the GA Act contains a statutory presumption of capacity which must be rebutted on the evidence before orders can be considered (although it should be noted that the presumption does not appear to apply to s 43(b)(iii) of the GA Act in deciding whether the person is in need of oversight, care or control in the interests of their own health and safety or for the protection of others).
84 The importance of the presumption of capacity was observed by the Full Tribunal in GC and PC [2014] WASAT 10 (GC), echoing the sentiments of Heenan J in Sv State Administrative Tribunal of Western Australia[No 2] [2012] WASC 306. The Full Tribunal in GC said at [36]:
… The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the Act. Because of the significant consequences for an individual of having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity. (Emphasis added)
The need for a guardianship order
85 The questions for the Tribunal are whether K is a person for whom a guardianship order can be made and if so whether it is in her best interests to find and declare that she is in need of a guardian (s 4 and s 43(1) of the GA Act).
86 Put another way, can it be said that K is currently incapable of looking after her own health and safety, unable to make reasonable judgments in respect to personal matters or in need of oversight, care and control in the interests of her own health and safety? (s 43(1)(b) of the GA Act).
87 If it is the case that one or more of these elements apply to K, is there anything in her particular circumstances that warrants the appointment of a guardian? That is to say does she need the protection of a guardianship order and if so what should the guardian be given the authority to do?
88 A plain reading of s 43(1)(b) of the GA Act shows that it is very broad in its apparent scope. However, even if I am satisfied that the evidence is of the required standard such that the presumption of capacity is displaced, I must further consider whether the needs of K can be met by means that are less restrictive of her freedom of decision and action than would be the case if a guardianship order was made. If I do so find, the GA Act is clear, a guardianship order 'shall not be made' (s 4(4) of the GA Act).
89 By any measure, K has led a very difficult life and continues to be affected by the trauma she has endured.
90 K has a vulnerable personality but also has, in apparent contradiction, a determined resilience that has enabled to make her life in the community.
91 K is opposed to the making of a guardianship order.
92 I accept the evidence of AB that K's mental state is impacted by significant ongoing psychological issues that appear to have arisen principally from childhood trauma. This predisposes K to enter into relationships characterised by abuse and dependency with features of timidity and a lack of assertiveness.
93 K has developed strategies to deal with this including seeking the assistance of her neighbours and relevant agencies, as well as the police and from the clinical psychologist AB, from time to time. In effect, the position of K is that she knows what to do in the circumstances that she faces in her personal life. There is a sense that K is resigned to her life but is proud of how she has survived in adversity.
94 Because of the ways in which K has acquired strategies over a long period of time to protect herself in her relationships with others, I cannot say that I am satisfied to the required standard that she is incapable of looking after her own health and safety, unable to make reasonable judgments or in need of oversight in respect of those relationships, although given her background, she remains vulnerable.
95 Even if I am wrong in this, I could not be satisfied that K is in need of a guardian.
96 K lives her life in the determined way that she does. It is not the life, objectively speaking, that one would choose, however, she has achieved a measure of independence of which she is proud given the setbacks in her life.
97 I am unable to conclude that the appointment of a guardian would provide a material benefit to K's circumstances sufficient to compensate for the loss of the freedom of her decision and action that a guardianship order would entail. Even appointing a guardian in an advocacy role without a specific decision-making authority (see for example, MC [2004] WAGAB 5), would not in K's situation add to the supports she already has and which she accesses when she determines there is a need.
98 For these reasons I dismiss the application for the making of a guardianship order.
The need for an administration order
99 To make an administration order I first need to establish that K has a 'mental disability' as defined in s 3 of the GA Act.
100 If K does have a mental disability I need to further find that by reason of that disability, K is unable to make reasonable judgments in respect of matters relating to all or any part of her estate and that she is in need of an administrator (s 64(1) of the GA Act).
101 K has a constellation of psychological issues as the evidence of AB demonstrates. Can these be characterised as a 'mental disability'?
102 The definition of mental disability in s 3 of the GA Act is not exhaustive. I have said on an earlier occasion that 'mental disability' can have a relatively wide meaning when dealing with a person who has 'a lack of competent ability or weakness relating to the mind or intellect' (SM [2015] WASAT 132 at [44]).
103 Even if I accept that K has a mental disability by virtue of her psychological conditions, I am not satisfied on the evidence that those conditions prevent her from making reasonable judgments about her estate.
104 Relevantly, the estate to which the making of 'reasonable judgments' refers is K's actual estate (FS [2007] WASAT 202 at [103] [106]).
105 K's actual estate comprises her pension income and a beneficial interest in the Court funds.
106 It is important to recognise that the only asset that is under the direct control of K is her pension income.
107 I accept the evidence of AB that the psychological problems he has identified in K cannot be taken to imply that she cannot manage her pension income. Although it might be said that D is the one who largely presents the financial position of himself and K to the Court when requests for funds are made, I accept K's evidence that she does not allow D access to her bank account.
108 It is an uncontroversial proposition that a person who must manage for the long-term on a pension income will struggle financially from time to time and the evidence shows this applies to K. This does not mean, in my view, that she cannot manage the pension to the extent that she is in need of an administrator.
109 I accept that the court funds are difficult to manage because of the nature and frequency of the requests that are made by K and D and because they both appear to start from the premise that because the court funds came about from K's share of her late father's estate, the funds therefore belong to K and that any request for funds should be acceded to.
110 The applicant argues that if K is placed under an administration order appointing the Public Trustee in Western Australia (Public Trustee), then court funds can be channelled to the Public Trustee upon which K can make requests. The further argument is that funds held locally can be more flexibly disbursed.
111 I am not convinced by the applicant's argument. Although it is possible that an administration order could be made simply capturing K's right to her beneficial interest in the court funds it seems to me that would only add another bureaucratic layer to the management of those funds. I cannot envisage the Public Trustee dealing with the requests of K and D in a materially different way particularly if K and D continue to maintain that the court funds belong to K and should therefore be available on demand.
112 For these reasons I dismiss the application for the making of an administration order.
Orders
1. The administration and guardianship applications are dismissed.
I certify that this and the preceding [112] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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