KH and KS

[2005] WASAT 247

KH and KS [2005] WASAT 247

Last Update :19/09/2005

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2005] WASAT 247
Published:
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:973/2005	Heard:	12 AUGUST 2005
Coram:	MR J MANSVELD (MEMBER)	Delivered:	09/09/2005
No Pages:	12	Judgment Part:	1 of 1
Result:	The Public Trustee is appointed plenary administrator
Category:	B

Parties & Catchwords


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KH and KS [2005] WASAT 247 MEMBER : MR J MANSVELD (MEMBER) HEARD : 12 AUGUST 2005 DELIVERED : 9 SEPTEMBER 2005 FILE NO/S : GAA 973 of 2005 BETWEEN : KH

Represented person

AND

KS
Applicant

Catchwords:

Administration - Mental disability - Unable to make reasonable judgements in respect of estate - Need for an administrator - Who should be administrator

Legislation:

Guardianship and Administration Act 1990, (WA), s 3, s 4,s 40, s 64, s 68
Mental Health Act 1996 (WA)

Result:

The Public Trustee is appointed plenary administrator

(Page 2)

Category: B

Representation:

Counsel:

Represented person : Self-represented
Applicant : Self-represented

Solicitors:

Represented person : Self-represented
Applicant : Self-represented

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

Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) at 320-332

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary

1 The Public Trustee was appointed plenary administrator for a 27 - year-old woman with a diagnosis of a mental illness. The woman was said to lead a lifestyle which was exploitative of her, particularly in respect of her substandard accommodation and poly substance abuse. She was said not to be able to manage her finances in her own best interests and had recently been admitted to a psychiatric hospital after being found homeless and without money.

2 The proposal to have an administrator appointed was based on the need for the woman to have access to appropriate accommodation that would allow her the opportunity for some stability in her life. As she was not managing her finances in a way that promoted stability an administrator was appointed to ensure that suitable accommodation could be found and maintained.

Background

3 These reasons relate to an application made by Kathryn Sturrock, Social Worker at Graylands Hospital for an administrator to be appointed for KH. The application was made pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (the Act).

4 The application was first heard on 20 July 2005. KH had been personally served with the notice of the hearing on 4 July 2005 but did not attend the hearing. Ms Sturrock, as applicant, attended the hearing.

5 Ms Sturrock stated that to her knowledge KH was opposed to the appointment of an administrator.

6 The application was adjourned to give KH a further opportunity to present her views about the application. The adjourned hearing was set for 12 August 2005.

7 On 11 August 2005, the Tribunal received a facsimile from Dr Perry Short of Sir Charles Gairdner Hospital stating:

"This is to certify that [KH] is currently an inpatient at Sir Charles Gairdner Hospital on Forms 1 & 3 under the Mental Health Act and will be unable to attend the administration hearing. Our hope is that the hearing can proceed in her absence."

(Page 4)

8 The hearing went ahead on 12 August 2005. Ms Sturrock advised that she had met with KH on the morning of the hearing and had arranged for KH to be available by telephone conference.

Decision

9 I have decided to appoint the Public Trustee as KH's plenary administrator for two years.

10 I will provide the reasons for my decision by firstly stating the evidence KH provided at the hearing and then by stating the relevant legislation. I will then discuss the evidence provided by Ms Sturrock and the medical evidence available to me in the light of the legislative requirements for the appointment of an administrator.

The evidence of KH

11 At the hearing on 12 August 2005, KH was contacted at Sir Charles Gairdner Hospital. She was advised that an application for administration was to be considered. She responded, "I don't want my money going into that thing".

12 KH was then advised that Ms Sturrock would be asked to give her view as to why an administrator should be appointed. KH responded, "I don't want one so I'm just going to leave it at that".

13 KH then concluded the telephone conference.

14 I decided that the hearing should proceed in KH's absence.

The relevant legislation

15 When considering administration, I must be satisfied that the person for whom the application is made is someone for whom an administrator could be appointed (the question of capacity) and, if found incapable, whether the person should have an administrator appointed (the question of need). If an administrator is to be appointed, the final questions to be considered are what functions should be given to the administrator and who that administrator should be.

16 The relevant legislation is contained in s 3, s 4, s 64 and s 68 of the Act.

17 Section 64 provides:

"64.Making of administration order

(Page 5)

(1) Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 ¾
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and

(b) is in need of an administrator of his estate,

the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint ¾
(c) a person to be the administrator; or

(d) persons to be joint administrators,

as the case may require, of the estate of the person in respect of whom the application is made.
(2) Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.

(3) An appointment under subsection (1) ¾

(a) may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;

(b) may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given; and

(c) shall not be made where the Director-General of the department established under section 4 of the Community Services Act 1972 is empowered to act for the

(Page 6)

person in respect of whom the application is made by virtue of section 14 or 15 of that Act, unless the Director-General consents to the appointment."

18 Section 3 provides that a "mental disability" includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.

19 The principles to be observed when dealing with proceedings under the Act are set out in s 4 of the Act. As they relate to administration, they are, firstly, that every person is presumed to be capable of making reasonable judgments in respect of matters relating to his or her estate until the contrary is proved. Secondly, an order appointing an administrator shall not be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Thirdly, an order appointing a limited administrator shall be in terms that impose the least restrictions possible in the circumstances on the person's freedom of action and decision. Fourthly, the views and wishes of the person concerned should be ascertained as far as possible. Finally, the primary concern shall be the best interests of the person for whom the application has been made.

20 Finally, s 68 provides:

"68.Who may be appointed administrator
(1) An administrator (including a joint administrator) shall be ¾
(a) an individual of or over the age of 18 years; or

(b) a corporate trustee,

who has consented to act and who, in the opinion of the State Administrative Tribunal ¾
(c) will act in the best interests of the person in respect of whom the application is made; and

(d) is otherwise suitable to act as the administrator of the estate of that person.

(Page 7)

(2) The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that ¾
(a) there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or

(b) the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.

(3) For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible ¾
(a) the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;

(b) the wishes of that person; and

(c) whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.

(4) The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act."

(Page 8)

Is KH a person for whom an administration order could be made?

21 A number of written reports have been provided with respect to the capacity of KH to manage her financial affairs; they are from: Ms Sturrock, the applicant and Social Worker at Graylands Hospital, dated 7 June 2005; Dr K Sathiyapal, Medical Officer at Graylands Hospital, dated 8 June 2005 and Dr A Welborn, Psychiatry Registrar at Subiaco Community Mental Health, dated 9 June 2005.

22 Dr Sathiyapal states that KH suffers from chronic paranoid schizophrenia with poly substance abuse. He further states that KH is unable to make reasonable decisions now in relation to her financial affairs and that her "financial activities must be supervised".

23 Ms Sturrock states in her report that "when [KH] is mentally unwell, she experiences auditory command hallucinations, olfactory hallucinations, ideas of reference from the radio and television. [KH] becomes depressed and has thoughts of self-harm". In her report and in oral evidence Ms Sturrock states that KH does not make decisions about her accommodation in her own best interests, preferring to live in substandard accommodation and having money available for the consumption of illicit substances.

24 Dr Welborn states in her report; "[KH] is aged 27 years. She suffers from Schizophrenia complicated by Poly Substance Abuse. She has frequent admissions to psychiatric care in hospital. She is unable to work out what is best for her. She is unable to manage her money and is vulnerable to abuse by unscrupulous others. For this reason she is managed under a Community Treatment Order, that she is an involuntary patient maintained under (sic) the community when she is not in hospital. It is my understanding that she is currently in Graylands Hospital".

25 By the time of the first hearing on 20 July 2005, KH had been discharged from Graylands Hospital. Ms Sturrock's evidence is that the discharge took place soon after the application for administration was lodged with the Tribunal on 10 June 2005. As earlier stated in these reasons, at the time of this hearing KH is an involuntary patient under the Mental Health Act 1996 (WA) and is in Sir Charles Gairdner Hospital. Ms Sturrock's evidence is that the mental health nurse assigned to KH in the community had recent contact from KH to say she was homeless and did not have any money. It was after that contact that KH was admitted to hospital.

(Page 9)

26 I am satisfied on the available evidence that KH has a mental disability in the form of a chronic psychiatric condition, and because of that mental disability she is unable to make reasonable judgements in respect of all of her financial affairs. The reason given for the most recent admission to hospital is confirmation of the concerns raised by the applicant and the medical practitioners who have attended to KH.

27 I find that KH satisfies the provisions of s 64(1)(a) of the Act. No evidence has been provided to the contrary.

Is KH in need of an administrator?

28 When a person is found to be incapable, pursuant to s 64 (1)(a) of the Act, the question that next has to be considered is whether he or she "is in need of an administrator of his estate" (s 64(1)(b)). Such need is read subject to s 4(2)(c) of the Act, which provides:

"…

(c) 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."

29 The meanings of "is in need of an administrator of his estate" and "needs of the person" were considered by the Full Board of the Guardianship and Administration Board in Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) at 320-332. The Board took the view that the terms involve different tests. Where the provisions of s 64(1)(a) are met it would usually follow that the person "is in need of an administrator" because of the absence of formal legal authority to make decisions for the person. However, this will not always be the case, for example, in situations where the person has no assets that require administration or if the assets are managed under some other legal authority. This is not the situation with KH. She is in receipt of the disability support pension and she presently manages that herself. However, by virtue of the finding that she cannot make reasonable judgments about the management of her income a "legal vacuum" exists in the decision-making and in that regard KH has become “in need of an administrator…" pursuant to s 64(1)(b) of the Act.

(Page 10)

30 The test as it relates to the "needs of the person" is of a broader nature. In Review of Guardianship and Administration Orders in respect of MM (supra) at 330:

"…the phrase 'needs of the person' …involves a different test. The 'needs' there described are of wide import and encompass all the wants and necessaries of the person. Thus there is a two step process. The Board must first determine whether there is a need for a guardian in s 43(1)(c) (or a need for an administrator in s 64(1)(b)) and then move on to the issue whether notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of that person can nevertheless be met under informal arrangements which are less restrictive of the person’s freedom of decision and action."

31 The evidence given by Ms Sturrock is that in the recent past KH has lived in accommodation that has been exploitative of her. In her report of 7 June 2005, she states, "[KH] was staying in a flat in [MP] with an elderly gentleman. He was charging her $40.00 a week rent. She was found lying on a torn mattress with a filthy malodorous blanket over her. The flat was in a filthy state". In her oral evidence she states that the community mental health nurse told her the accommodation was "…just one of those places, when he walked into, you wanted to have a shower afterwards, you sort of felt so filthy, and I thought, oh, that’s bad". (transcript page 13).

32 The reason given by Ms Sturrock for this situation is that KH does not want to live in a psychiatric hostel as this form of accommodation consumes the greater part of her pension. This leaves insufficient funds for spending on illicit substances which Ms Sturrock says is taken because "…they’re addicted in the sense that they’re lonely and bored". (transcript page 11).

33 The essence of Ms Sturrock's argument is that KH lives in a cycle of substandard, exploitative accommodation, abuses illicit substances and as a consequence her mental health needs are neglected such that from time to time she requires acute hospitalisation.

34 It is Ms Sturrock's view that with the opportunity of stable accommodation, say in a public housing flat, there is some chance the destructive cycle can be broken. Ms Sturrock is aware of a friend of KH who presents as an opportunity for KH to share accommodation with her

(Page 11)

in a mutually supportive way. This hope for stability, in Ms Sturrock's view, requires an administrator to collect KH's income and apply it, in the first instance, to suitable accommodation.

35 On the evidence available to me I am satisfied that the "needs" of KH as they incorporate her "wants and necessaries" are not currently being met in a way which promotes her well being. I have found Ms Sturrock's evidence to be credible and am persuaded by her professional opinion as a social worker in a mental health service, that the decisions being made by KH in terms of expenditure for accommodation and other personal needs are contrary to her best interests. This is consistent with the medical reports, particularly that of Dr Welborn.

36 There is no evidence of any informal arrangements available for the management of KH's finances that would obviate the need to appoint an administrator. In is unfortunate in that regard that KH has been prepared to only give very limited evidence, in effect the view that she does not want an administrator appointed. Whilst I must give consideration to KH's wish I find that the evidence provided by the medical reports and Ms Sturrock do not support the outcome that KH desires.

37 I therefore find that an administrator should be appointed for KH. In making this finding I am aware that the success of such an order is in part dependent on the ongoing support that KH is offered and receives from mental health services.

38 I have decided to make the order plenary in its scope. I have earlier made the finding that KH is unable to make reasonable judgements in respect of all of her estate and a plenary order is consistent with that finding. Although KH's estate is uncomplicated, her income will need to be collected and enquiries made with Centrelink and her bank. In addition tenancy or lodging agreements will have to be negotiated from time to time and other services paid for.

39 The final matter I must decide is who should be appointed as KH's administrator. Ms Sturrock has proposed the Public Trustee. KH has said she does not want an administrator appointed. The Public Trustee satisfies the requirements of s 68 of the Act (see "The relevant legislation" in these reasons) and no other individual or corporate trustee has been proposed. I have decided, therefore, to appoint the Public Trustee as plenary administrator for KH.

40 The order shall be for two years. This is to allow for the hoped for improvement in KH's circumstances and as Dr Welborn states in her

(Page 12)

report "…in the absence of Poly Substance Abuse her mental state may considerably improve".

Order

1. The Public Trustee of 565 Hay Street, Perth WA be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.

2. This order be reviewed by 12 August 2007.

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J MANSVELD, MEMBER