KSC
[2012] WASAT 1
•5 JANUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: KSC [2012] WASAT 1
MEMBER: MS F CHILD (MEMBER)
HEARD: 8 DECEMBER 2011
DELIVERED : 5 JANUARY 2012
FILE NO/S: GAA 2992 of 2011
BETWEEN: KSC
Represented Person
Catchwords:
Guardianship and Administration Review of administration order Represented person with diagnosis of delusional disorder driving litigious behaviour to her financial detriment Need for continued protection of estate from further unnecessary legal costs Reappointment of Public Trustee as plenary administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 64
Mental Health Act 1996 (WA)
Result:
Appointment of administrator confirmed
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:
Summary of Tribunal's decision
On periodic review of an administration order, the appointment of the Public Trustee as the plenary administrator of the estate of the represented person was confirmed.
The administration order had been made six months prior to the represented person being detained as an involuntary patient under the Mental Health Act 1996 (WA) with a diagnosis of a delusional disorder which was said to be driving her litigious behaviour. At that time her mental health was said to be improving with treatment. The Tribunal had first appointed the Public Trustee as the administrator to protect the represented person's estate from further legal costs incurred through the continuation of legal proceedings in which the represented person had been engaged for many years. The represented person had incurred significant legal costs in the past and had been subject to seizure of some of her property to meet debts, including unpaid legal costs.
On review of the order the Tribunal determined that the represented person continued to suffer from a mental disability and that she needed an administrator to protect her estate from further unnecessary legal costs. The represented person wanted to continue legal proceedings which had no prospect of success and which would likely lead to further costs and potentially cause further financial loss to her estate.
The administration order was confirmed for a further five years as the Tribunal determined that the issues confronting the represented person were of long standing. Because the represented person was reportedly refusing treatment it was likely that her diagnosed mental illness would continue and result in her continued inability to make reasonable judgments about legal proceedings which would again put her estate at risk.
Background
An application for the appointment of an administrator and a guardian for KSC (represented person) was made in July 2011 by a social worker from the Ursula Frayne Unit, a secure older adult mental health facility. At the time of the application and hearings the represented person was detained there under the Mental Health Act 1996 (WA). An administration order, pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act), was made for review in six months, as the represented person's mental health was said to be improving with medication.
The Public Trustee was appointed plenary administrator of the estate. The application for the appointment of a guardian was dismissed, as the Tribunal accepted the submission of the Public Advocate's representative that the represented person was not in need of a guardian.
Although the sons of the represented person were proposed for appointment as the administrators, the Tribunal determined that the appointment of the Public Trustee was the in the best interests of the represented person. This was because there was a need for urgent action by an experienced administrator to deal with pending litigation and to protect the estate. There was also a need to preserve the represented person's relationship with her sons who lived overseas and had not appreciated, until the hearing, the extent of her financial, legal and mental health problems.
Review of the order: issues to be determined
The issues to be decided on review of an administration order are:
•whether the represented person remains a person for whom an administration order may be made; and
•whether she is in need of an administrator of her estate, and if so, who should be appointed in that role and the terms of the order that should be made.
Is the represented person a person for whom an administration order may be made?
An administration order may be made for a person who is unable, by reason of a mental disability, to make reasonable judgments about any or all of her estate: s 64 of the GA Act.
The represented person denies she has a mental illness or a delusional disorder, and contends that she is 'perfectly normal' and can make decisions about her financial and legal affairs.
The medical evidence before the Tribunal for the review is from Dr DJ, a medical officer from Selby Lodge where the represented person was admitted following her discharge from the Ursula Frayne Unit.
Dr DJ says that the represented person was a voluntary patient until she left Selby Lodge, and that he interviewed her on three occasions. He reports that the represented person has a diagnosis of 'delusional disorder'. He notes in his written report of 29 September 2011 that the condition is a fluctuating one and he notes 'noncompliance with medication', 'insightless into illness or need for medication', '[r]equires monitoring and vulnerable financially' and '[r]equires ongoing financial administration'.
Dr DJ's opinion is that the represented person is not capable of making reasonable decisions now in relation to her financial affairs. In his report he states she is capable of giving an enduring power of attorney. When questioned about this during the hearing, Dr DJ agreed that the represented person would need the security of an administration order. Without an administration order, she would be 'likely to spend inappropriately'. He notes that she continues to have delusional and conspiratorial beliefs and is refusing medication which he believes would assist her.
The represented person challenges Dr DJ's diagnosis of delusional disorder or beliefs and the basis on which he arrived at that diagnosis. She states that her views about the litigation in which she is engaged are not delusional (since she is engaged in the litigation), and that Dr DJ did not ask her about her financial position, and so she challenges his conclusion that she is vulnerable to exploitation.
The report of Dr DJ regarding the represented person's diagnosis and capacity to manage her own affairs is consistent with that provided by Dr OL, a psychogeriatrician, and Dr SN, a medical officer from the Ursula Frayne Unit who previously treated the represented person as an involuntary patient. Both these doctors provided written reports and gave oral evidence at the original hearings. In one report, the represented person is described as being 'floridly psychotic and incorporates all who have contact with her who do not actively support her in her delusions as being involved in a conspiracy against her'.
The represented person challenges the opinions of Dr OL and Dr SN on the basis that they spoke to her only about money and did not speak to her about psychiatry.
In the course of the review hearing the represented person made statements about her beliefs regarding the litigation in which she is engaged and the involvement of a former lodger in events which led, in her view, to the litigation. Much of what was said was similar in content to the comments made by the represented person at the previous hearings. The conspiratorial beliefs reported in the medical evidence were manifest in the review hearing, where the represented person made allegations about the conduct of the management of her estate by the Public Trust Office and solicitors for the Public Trustee, and allegations as to the motives of the health professionals, including one of the doctors who gave evidence at the initial hearing, for example, that the doctor must be a friend of her former lodger.
The represented person submits that, when she was first admitted to Sir Charles Gairdner Hospital, she was reviewed by three psychiatrists who advised that she was 'normal'.
In the original applicant's report, the applicant notes that the represented person was reviewed by two psychiatrists who are specialists in old age psychiatry. The applicant reports that the psychiatrists' views were unanimous in that they all found the represented person was 'presenting complex delusional systems which probably started around 1997 following the death of [name deleted] (man she asserts was her de facto)'.
The Tribunal finds that the represented person is a person for whom an administration order may be made in that, by reason of the delusional disorder that she suffers, diagnosed by Dr SN and by Dr OL and confirmed more recently by Dr DJ, that she is unable to make reasonable judgments about her estate. The diagnosis of delusional disorder is a mental disability for the purposes of the GA Act. The Tribunal finds that the represented person's decisions about litigation are driven by her delusional beliefs and, as she is unable to make reasonable judgments in relation to litigation, she is therefore a person for whom an administration order may be made.
Is the represented person in need of an administrator of her estate?
The represented person denies that she is in need of an administrator of her estate in respect of the Supreme Court litigation, although she accepts the administration by the Public Trustee in relation to the strata company action.
The represented person states that she has significant assets, including cash of around $800,000. She contends she has sufficient funds to apply some of those monies to litigation which she initiated, which she wants tested before the Supreme Court. She considers that $10,000 spent on that litigation is appropriate. She states she has a solicitor willing to act in the matter for that amount.
The represented person believes that litigation in the Supreme Court will result in compensation being paid to her of millions of dollars and that 'once it comes in it pays for everything' (T:28, 08.12.11). This belief is held despite advice from a previous solicitor and counsel's opinion that there was no prospect of success. Recently, the Public Trustee has obtained a further opinion, and the advice of new counsel confirms the earlier opinion. Counsel's advice is that it would be in the represented person's interests for the Public Trustee as her plenary administrator to compromise the claim on the basis that the claim is withdrawn, with each party bearing its own costs. This was the negotiated position arrived at between the Public Trustee's solicitor and the solicitors for the other side shortly after the appointment of the Public Trustee in August 2011.
In addition to the Supreme Court action, the solicitor for the Public Trustee identifies two other significant matters which the Public Trustee as administrator has addressed on behalf of the represented person, including defamation action by her former solicitor, and negotiations with the strata company regarding legal action for recovery of money owed by the represented person for legal fees incurred by the company in respect of litigation initiated by the represented person, and for unpaid strata fees. The Public Trustee representative reports that significant funds have been paid for outstanding strata levies, and further investigation is being undertaken in relation to the charges applied by the company.
The decision has been taken by the Public Trustee to sell property owned by the represented person in another state, and settlement is due early in January 2012. To give effect to that decision, the Public Trustee has sought and obtained registration of the administration order in Tasmania.
The Public Trustee's representative reports that steps have been taken to protect the assets of the represented person, including:
•securing all bank accounts and term deposits;
•caveats placed on both of her properties;
•insurance of various assets; and
•an investigation of taxation obligations as the represented person has not lodged a taxation return since 2008.
The Public Trustee reports that all accounts in the name of the represented person have been redirected to the Public Trustee and paid on her behalf. A weekly allowance for her daytoday expenditure and outings is allocated.
The Public Trustee reports that the represented person has significant cash assets, as well as the proceeds of sale from the impending sale of her Tasmanian property.
The need for an administrator of the estate of the represented person arises from her impaired decision-making in relation to legal proceedings and the potential risk to her estate from initiating and continuing proceedings.
The evidence, including the represented person's own evidence, at the original hearing was that the represented person initiated numerous legal proceedings in the past, exposing herself to enormous legal costs which have resulted in the seizure of her property and significant loss to her estate. The represented person wishes to continue the current Supreme Court litigation despite advice of the likely outcome of that litigation.
The Tribunal finds that the represented person's attitude to litigation is driven by her mental illness and that she needs protection from the consequences of that by the appointment of an administrator with authority to decide these matters on her behalf. This is particularly so in relation to the strata company matter, to secure her property so that she can continue to live there, given that the other property she owned was seized to satisfy debts.
The administration order to be made
The represented person is agreeable to the role played by the Public Trustee in relation to the strata company (T:30, 08.12.11) but considers that she does not need an administrator in respect of the litigation. She strongly opposes the proposal of the Public Trustee to settle the current Supreme Court proceedings on her behalf.
The appointment of the Public Trustee as plenary administrator is confirmed, as the Tribunal finds that it is in the best interests of the represented person that all of the matters currently being addressed by the Public Trustee continue to be managed on the represented person's behalf.
The original order was made for a short period because the represented person's delusional disorder was said to be resolving but that does not appear to be the position on review of the order.
The evidence of Dr OL, a psychogeriatrician, at the time of the original order was that the represented person's impairment was 'improving'. Dr OL refers to treatment of the represented person with antipsychotic medication and states:
Expectations are for full response to antipsychotic treatment in 68 weeks and further assessment of cognition will take place then. Insight may remain poor but provided that maintenance treatment continues, mental function should stabilise.
Dr DJ now describes a 'fluctuating' condition but states that the represented person is not willing to have treatment and, while that is the position, it would seem that her condition will remain untreated unless she is again made an involuntary patient. The evidence is that the represented person's attitude to litigation is a longstanding one. Because I find that the represented person's litigious behaviour is driven by her mental illness, while her condition remains untreated, she remains in need of the continuing protection of an administration order in her best interests.
Orders
On review of an administration order dated 16 August 2011 concerning the represented person, it is ordered that:
1.The order is confirmed as follows:
The Public Trustee of 565 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 Guardianship and Administration Act 1990 (WA).
2.This order is to be reviewed by 8 December 2016.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER