KB
[2020] WASAT 33
•20 MARCH 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
CITATION: KB [2020] WASAT 33
MEMBER: MS F CHILD, MEMBER
HEARD: 12 FEBRUARY 2020
DELIVERED : 3 MARCH 2020
PUBLISHED : 20 MARCH 2020
FILE NO/S: GAA 3460 of 2019
MATTER: KB
Represented Person
Catchwords:
Guardianship and administration - Review of orders appointing Public Advocate and Public Trustee - Represented person with mild intellectual disability, acquired brain injury and significant physical disabilities - History of domestic violence and neglect - Spouse's continued failure to recognise represented person's cognitive impairment and physical dependence - Ongoing need for orders - Less restrictive alternative to the appointment of the Public Advocate as plenary guardian - Wishes of the represented person that her sister be appointed guardian - Sister both consenting to and suitable for appointment as guardian to make treatment decisions - Public Advocate appointed for remaining guardianship functions - Continuing need for administration of all aspect of estate - Public Trustee confirmed as administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 64(1), s 84, s 110ZD
Result:
Guardians appointed
Public Trustee appointed administrator
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
KB [2013] WASAT 108
KB [2016] WASAT 100
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The Tribunal conducted a review of orders dated 20 April 2016 by which the Public Advocate is appointed plenary guardian of KB and orders dated 27 April 2018 by which the Public Trustee is appointed as plenary administrator of her estate.
The review of the orders was conducted pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) (the GA Act) which requires periodic review of guardianship and administration orders.
Orders were made on 12 February 2020. The following are the reasons for the decisions made.
History of orders
KB is a 50yearold woman living in supported accommodation. She experiences significant physical disabilities and is highly physically dependent on others for her care. KB also has cognitive impairment associated with a diagnosed mild intellectual disability and has an acquired brain injury.
Guardianship and administration orders were first made for KB in 2013 following an application to the Tribunal by a representative of the Disability Services Commission alleging that KB had been subject to neglect and physical abuse resulting in injuries and financial abuse from her spouse, P.
KB was legally represented in the proceeding and supported guardianship and administration orders being made for her. Reasons for that decision were published as KB [2013] WASAT 108.
In his correspondence and in his oral submissions for this and previous reviews, P refers to prior applications brought in the Guardianship and Administration Board (the Board) in 1994 for KB which were dismissed.
P repeatedly asserts that as KB was legally represented in the Board proceedings and because the applications were dismissed that the current guardianship and administration orders under review are 'illegal' (ts 7, 8, 10 and 11, 12 February 2020).
In the reasons given for its decision in 1994 the Board states it was not satisfied that the presumption of capacity of KB had been displaced by the evidence before the Board at that time. The dismissal of the application was not a declaration of KB's capacity as P contends.
Since the original appointment of a guardian for KB in 2013 there have been a number of reviews of guardianship orders made variously appointing the Public Advocate, W, KB's mother and T, her sister as KB's limited guardians.
The Public Advocate was appointed KB's plenary guardian in 2016 as KB had left the supported accommodation arranged by her guardians and was again living with P. At the time of review P continued to lack any insight into KB's care needs and would not cooperate with service provision for her.
The appointment of the Public Advocate was made because of the conflict between P and KB's family. In the circumstances of KB the Tribunal considered that a plenary order was necessary because of the extreme vulnerability of KB and the volatility of her living situation. Reasons for the decision were published as KB [2016] WASAT 100.
The Public Trustee was originally appointed limited administrator of KB's estate in 2013. The Public Trustee was appointed to manage funds received following legal action for recovery of an investment made by P. The investment and the recovery of some of those funds was only a portion of KB's estate unaccounted for from KB's personal injuries compensation funds which had been managed by KB and P prior to the original orders being made.
The current orders appointing the Public Trustee as plenary administrator were made on the application of a hospital social worker while KB was an inpatient in 2018.
The urgent review was sought of the then existing limited administration order because it was alleged that P would not return the card for the bank account into which KB's pension was paid. P was reported to have said the card had been stolen but then said that he would not return the card.
The orders made in 2018 appointing the Public Trustee as plenary administrator of KB's estate were set to be reviewed to coincide with the review of the guardianship order.
Current review proceedings
To determine the current review the Tribunal must consider whether KB is a person for whom an administration and a guardianship orders may be made and whether she is in need of those orders. If she is such a person then the Tribunal must decide who should be appointed in those roles and the scope and length of any of the orders to be made.
To appoint an administrator of an estate, or confirm such an order on review, the Tribunal must be satisfied that the person for whom the order is made, is unable, by reason of a mental disability to make reasonable judgments in respect of matters relating to all or any part of her estate and is in need of an administrator of her estate (s 64(1) of the GA Act).
To appoint a guardian a for a person the Tribunal must be satisfied that the a person 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; and is in need of a guardian (s 43 of the GA Act).
Principles to be observed
In all proceedings brought under the GA Act, including review proceedings the Tribunal must observe the principles set out in s 4 of the GA Act:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of
(a)looking after her own health and safety;
(b)making reasonable judgments in respect of matters relating to her person;
(c)managing her own affairs; and
(d)making reasonable judgments in respect of matters relating to her estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person’s freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person’s freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person’s previous actions.
Evidence and material before the Tribunal
The review hearing was attended by KB, her spouse P, and her mother W by telephone. KB's sister, T and the Public Advocate's delegated guardian (guardian) attended in person.
The Tribunal received reports from the guardian, the Public Trustee, the service provider and the general practitioner and submissions from P and W. The Tribunal also had regard to transcripts and the reasons for previous decisions and the professional reports previously provided.
Wishes of KB
KB said in the hearing that she could make her own health decisions and could manage her own money. She said she would like a guardian to oversee 'it all'. It is understood by this that she meant her overall wellbeing. She noted that she had suffered a serious health crisis and had nearly died. She wanted T to play a role in medical treatment decisions and to oversee her National Disability Insurance Scheme plan. When a joint appointment of T and the Public Advocate was proposed for decisionmaking about services KB said 'yes please' (ts 15, 12 February 2020).
P interrupted when KB was speaking and asked KB whether she wanted to come home. P repeated his question and KB said she wanted to come home (ts 6, 12 February 2020).
KB said she did not want the Public Trustee (as her administrator) and said she wanted to try to manage her money herself (ts 7, 12 February 2020).
Is KB a person for whom orders may be made
The material before the Tribunal includes early medical records which indicate that KB suffered hypoxic brain injury at birth and has cerebral palsy, is legally blind and a mild intellectual disability as a result. In material filed for the original application it is reported that both KB and her spouse P were known to the Disability Services Commission.
In 2014 a neuropsychologist assessed KB and described her as:
… 45-year-old woman with cerebral palsy, visual impairment and physical disability. She is fully independent for all her care needs and mobilises in a wheelchair. … Mild Intellectual Disability … Working memory … was impaired … ability to learn novel verbal information was impaired … demonstrated very poor insight into the impact of physical disability on her function, and tended to overestimate her cognitive ability. Collectively, these features of her cognitive profile severely impacted her capacity to reason with regards to her own situation. … has only partial insight into her level of cognitive ability and limited capacity for reasoning. … demonstrates clinically significant executive difficulties in daily life, specifically in regards to shifting from one idea or task to another, self-monitoring, planning and organisation, and milder difficulties with working memory, task monitoring and organisation of materials. … assessment revealed a highly vulnerable woman who overestimates her capacity. Her intellectual abilities are in the range consisten with mild intellectual disability … with significantly reduced verbal comprehension, impaired capacity to learn and retain information, reduced insight and improvised reasoning ability. Collectively these weaknesses compromise [KB's] ability to make informed decisions. … Superficially presents as more cognitive able than formal assessment revealed. This is likely to be due to her relatively welldeveloped vocabulary and expressive language ability, together with her engaging personality and selfassurance regarding decision making and wishers. For this reason, medical professionals may overestimate [KB's] decion making capacity. … demonstrated only rudimentary capacity for mental arithmetic … [KB's] capacity for financial reasoning is constrained by her capacity for calculation and the limited amount of information she can hold in mind[.]
In March 2018 KB suffered a subarachnoid haemorrhage and her recovery was complicated by pneumonia and infection resulting in delayed recovery and transition to rehabilitation. Later reports indicate that KB has experienced further cognitive impairment.
The most recent medical report from Dr V dated 22 October 2019 gives the opinion that KD is incapable of making decisions about simple financial matters and her accommodation and services but is capable of making judgments about medical treatment.
One of KB's current service providers provided a report dated 20 November 2019 and gives the opinion that KB needs support with complex decisions and 'if left to her own devices would purchase items unnecessarily' and leave insufficient funds for activities and necessary items. KB is described as vulnerable and at risk of financial exploitation.
The service provider also reports that KB is able to understand some aspects of her medical conditions but is unable to recognise treatment and support needs and 'has limited perception of her physical disabilities'. This opinion is consistent with the specialist opinion given by the neuropsychologist's report following the assessment in 2014.
The Tribunal finds that based on the totality of professional reports before it that the presumption that KB is capable of making reasonable judgments about her person and her estate is displaced.
The Tribunal finds by reason of her mild intellectual disability and the further compromise to her cognition reported as a consequence of the acquired brain injury she suffered in 2018, that KB is unable to make reasonable judgments about all of her estate, including the expenditure of her Disability Support Pension.
Due to her cognitive impairment and her physical dependence on others for all aspects of daily living, together with her consistently reported lack of insight into that dependence, the Tribunal finds that KB is unable to look after her own health and safety, is unable to make reasonable judgments about her person and is in need of oversight and care in the interests of her own health and safety.
KB is therefore a person for whom both guardianship and administration orders may be made.
Is KB in need of administrator of her estate
The report of the Public Trustee refers to the funds of KB under management and the management of her pension income.
The reports of the current service provider, the Public Trustee and the history of KB's impaired decisionmaking and her vulnerability referred to in current reports demonstrates KB continues to be unable to make reasonable judgments about her estate, has been in the past subject to impulsive spending, financial exploitation and remains vulnerable and unable to protect her own interests.
The Tribunal finds that KB is in need of an administrator of her estate. A plenary order is appropriate as the needs of KB include the management of all of her legal and financial interests including her pension income.
Although KB preferred T to be appointed if an administration order was to be made, T did not consent to her appointment as she considered such as role may cause conflict and interfere with her relationship with KB (ts 19, 12 February 2020).
The history of KB's financial circumstances, the continuing conflict between P and members of KB's family, guardian and service providers reinforces the need for an experienced, independent administrator. Therefore, the Public Trustee is confirmed as the plenary administrator of KB's estate.
Is KB in need of a guardian
KB herself accepts she needs a guardian. The original application in 2013 was made to the Tribunal because in part P (and KB) did not recognise KB's high level of physical dependence and as a result her care needs were neglected because P could not or would not work with service providers to deliver essential supports to KB. The background to this and the implications for KB's health and safety are referred to in the earlier decisions of the Tribunal.
The lack of recognition of KB's dependence by P remains the case. In the current review P maintains that KB is not cognitively impaired and minimizes her need for supports. He asserts she is back to her normal self after the stroke she suffered in 2018 (ts 16, 2 February 2010).
P is reported to have actively undermined the guardian's decisions made for KB and has never acknowledged the domestic violence which the Tribunal found KB had been subject to following the disclosures made by her. P denies these allegations and says others have encouraged KB to make these allegations in the past.
In previous review proceedings KB acknowledged there had been 11 marital separations but said at the time that P had changed and was on medication and she was able to calm him down.
In the course of the review hearing P was disruptive and abusive.
He said he had not had contact with the guardian to deal with contact with KB as he considered that the guardian was illegal (ts 10, 12 February 2020).
P has never acknowledged his role in the previous breakdown and the withdrawal of services to KB. If the guardianship orders were revoked P, as KB's spouse, would assume the role as informal decisionmaker for KB pursuant to s 110ZD of the GA Act.
Based on the history, P's expressed views together with his ongoing challenging behaviours, he could not be relied on to maintain the services essential to the protection of KB's health and safety. Without the role of the guardian to manage KB's contact with P she would be again at risk of being removed from appropriate accommodation which meets her physical dependency and care needs as has happened in the past.
The Tribunal finds P is not appropriate to be an informal decisionmaker for KB because of his past conduct, his inability to work with other family members or service providers and his own apparent impairments. All of these factors support the ongoing need for a guardian to make decisions about services, accommodation and contact for KB. The Tribunal concludes there are no less restrictive alternatives to the appointment of a guardian for KB.
The Tribunal may not appoint the Public Advocate as guardian unless there is no one else suitable or willing to be appointed (s 44(5) of the GA Act).
The guardian submits there are less restrictive orders which will meet the needs of KB such that a plenary order is not required.
T is willing to be appointed KB's guardian for treatment decisions. She does not at this time seek or consent to her appointment as guardian to determine the services to which KB should have access. She supports the continuation of the appointment of the Public Advocate with this function particularly at a time of the development of KB's care plan.
T says she is familiar with KB's health history and current health conditions and care needs and is readily contactable and able to respond quickly to any health crisis and provide continuity of information to health professionals. T was previously appointed as guardian for KB and then sought to relinquish the role in 2014. She says now that her personal circumstances have changed, she is now able to again play this role for KB.
The appointment of T is consistent with KB's expressed wishes. The Tribunal finds T is suitable for appointment as guardian of KB, in particular, she is able to perform the functions of the guardian appointed with the authority to make treatment decisions for KB. This is a less restrictive alternative to the appointment of the Public Advocate.
The Public Advocates seeks her appointment as limited guardian for KB and submits there is no longer any need for the plenary order and that limited functions will meet KB's needs. The functions of accommodation, service and contact decisionmaking authorities have all been exercised by the guardian in the course of the order and it is submitted should be included in the orders on review.
It is argued by the guardian that there is no need for the Public Advocate to have the function to act as next friend.
Although accepting of the guardian's submission that formal legal action would be extremely distressing for KB the Tribunal considers that in light of the documented past behaviours of P, and the potential that this may reoccur, the function to act as next friend may be required in the future by the guardian to seek a restraining order on behalf of KB and that function too should be included in the limited orders made.
With these functions together with T acting as limited guardian for treatment the Tribunal is satisfied that the limited guardianship orders are sufficient to meet the needs of KB.
KB has a life-long mild intellectual disability and an ongoing cognitive impairment reported to have been experienced following a stroke suffered in 2018. Because of her own impairment, she remains in need of substitute decisionmaking.
Although she has a supportive family of origin the need for formal orders for KB is largely because of the inappropriate conduct of P and his unwillingness or inability to accept the level of services required by KB for her health and safety. P also resists the involvement of KB's family in her life. He continually denigrates her family both before the Tribunal and more widely. As referred in the earlier decisions of the Tribunal this had the effect over a period of time of severely limiting her contact with them.
But for P's conduct, less formal means might meet KB's needs for substitute decisionmaking. P's continuing conduct in the course of this review indicates that formal orders will be required in the longer term. In these circumstances the Tribunal considers that these orders should be made for the maximum period.
For these reasons given the Tribunal makes the following orders.
Orders
The Tribunal declares that the represented person, KB is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate.
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(f)in need of a guardian.
The Tribunal orders:
Administration
The administration order dated 27 April 2018 is confirmed as follows:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administration order is to be reviewed by 12 February 2025.
Guardianship
The guardianship order dated 20 November 2016 is revoked and substituted with an order in the following terms:
3.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)To determine what contact, if any, the represented person should have with others and the extent of that contact;
(d)To determine the services to which the represented person should have access; and
(e)As the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person.
4.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.
5.TJC of [address suppressed], Western Australia is appointed limited guardian of the represented person with the following function:
(a)To make treatment decisions for the represented person, subject to Divi3 of Pt 5 of the Guardianship and Administration Act 1990 (WA).
6.The guardianship order is to be reviewed by 12 February 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
20 MARCH 2020