LA
[2012] WASAT 6
•9 JANUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: LA [2012] WASAT 6
MEMBER: MS S GILLETT (MEMBER)
HEARD: 16 AUGUST 2011
DELIVERED : 9 JANUARY 2012
FILE NO/S: GAA 1961 of 2011
BETWEEN: LA
Represented person
Catchwords:
Administration Mental disability Need for protection Balance between autonomy and protection Limited administration order made
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(b), s 4(2)(c), s 64(1), s 64(1)(a), s 68, s 84, s 90
Result:
Order amended and Public Trustee appointed limited administrator
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
The represented person is a 26yearold man with a diagnosis of mental illness (schizophrenia associated with the use of stimulants). He has been the subject of an administration order under the Guardianship and Administration Act 1990 (WA) since August 2009.
On statutory review of the plenary administration order, the young man asked that the order be revoked and that he be allowed to control and manage his finances. The young man's estate is modest and consists of cash funds of less than $3,000 accumulated since the order was first made, a loan to his mother of $500 for an accommodation bond, and his entitlement to the disability support pension.
The psychiatrist, Dr A, who had very recently taken over the young man's care, said that the young man has made significant improvement in the two years since the administration order was made. The psychiatrist considered him to be capable of making reasonable judgments in relation to his financial affairs, albeit that he recognised that the represented person remained vulnerable to exploitation.
Although the young man's psychiatric condition had stabilised and his level of functioning had improved significantly, the Tribunal decided he remained a person for whom an administration order could be made due to his vulnerability to exploitation. The Tribunal amended the order by appointing the Public Trustee limited administrator and by excluding the represented person's disability support pension from the scope of the order.
Background
These written reasons relate to a decision of the Tribunal made on 16 August 2011 to amend the administration order for the represented person, LA (represented person) by appointing the Public Trustee limited administrator of his estate. The decision followed a review pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) (GAAct) of an order dated 10 August 2009 by which the Public Trustee was appointed plenary administrator of the estate of the represented person.
The application for an administration order in June 2009 had been made by the represented person's mental health case worker due to concerns that his mental health problems were compromising his ability to manage his finances and rendering him vulnerable to exploitation by others. The treating psychiatrist at the time described the represented person's impairment due to 'drug induced psychosis/chronic schizophrenia' as 'fluctuating'. He was considered to be vulnerable to financial exploitation and regularly spent all of his money in a short period of time on non-necessities, leaving him without basic food and placing his health at risk due to poor nutrition, stress and lack of access to health services.
At the time the administration order was made, the represented person had no savings or other assets and he owed $500 to Centrelink. The order was made for review in two years and that review is the subject of this decision and reasons.
Relevant legislation
Under s 90 of the GA Act, upon review of an administration order, the Tribunal may, as it considers necessary in the best interests of the represented person (the person for who an administration order has been made), confirm the order, amend the order, revoke the order or revoke the order and substitute another order for it.
Before it can make an administration order, the Tribunal must be satisfied that the person is unable, by reason of mental disability, to make reasonable judgments in respect to matters relating to all or any part of his estate and is in need of an administrator (s 64(1) of the GA Act).
Mental disability is defined to include dementia, acquired brain injury, psychiatric illness and intellectual disability (s 3 of the GA Act).
The determination of capacity and need is made subject to the principles of the GA Act as stated in s 4. They are, relevantly:
•that the primary concern of the Tribunal shall be the best interests of the person;
•that every person shall be presumed capable of making reasonable judgments in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal;
•that an administration order shall not be made if the needs of the person can be met by other means less restrictive of the person's freedom of decision and action; and
•in considering any matter relating to the person, the Tribunal shall, as far as possible, seek to ascertain the view and wishes of the person.
If an administrator is to be appointed, the Tribunal needs to be satisfied that the proposed appointee will act in the best interests of the person and is otherwise suitable to act as administrator of the person's estate. In this determination, the Tribunal shall take into account, as far as possible, the compatibility of the proposed appointee with the represented person (and with the guardian of the represented person, if one is appointed), the wishes of the represented person and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator (s 68 of the GA Act).
The question of the represented person's capacity
Prior to the hearing, Dr A, a psychiatrist with the local mental health service, provided the Tribunal with a completed Doctor's Guide in which he indicated that the represented person's impairment of his cognitive ability or mental function is 'improving' and stated:
[The represented person] has been managed for schizophrenia associated with the use of stimulants. His poor functioning has improved significantly. He also has the support of his mother.
Dr A stated that the represented person's attention, concentration and memory was good when assessed just prior to the hearing and he set out his view that the represented person is capable of making reasonable decisions in relation to his financial affairs.
In his oral evidence, Dr A stated that whilst he had only met the represented person on one occasion, primarily to review him for the purpose of preparing a report for the Tribunal, he had had the opportunity of reviewing the represented person's medical notes and records over the previous two year period. Dr A stated that the represented person now presented in a way that indicated a significant improvement in his mental functioning and he noted that the represented person was able to respond appropriately to questions about budgeting and managing his money and that he now has greater social support since living with his mother.
Dr A stated that the represented person has a 'dual diagnosis' and that he takes prescribed medication for ADHD which can cause 'schizophrenialike symptoms'. Further, Dr A referred to the likelihood that medication for ADHD may lead to dependency and that this may then cause the represented person to be vulnerable to exploitation. Whilst Dr A stated that the represented person has fortnightly depot injections and consequently is seen by a mental health services worker regularly, he clarified that the continuity of psychiatric care to the represented person had been limited due to the use of locum psychiatric staff.
The Tribunal was also in receipt of a report from TN, the represented person's case manager who worked at the same mental health service as Dr A. In her report, TN acknowledged that she had just been appointed case manager for the represented person; however, she stated that the case notes indicated that the represented person had remained mentally well for the past 10 months although it was recognised that he was vulnerable to exploitation by others. In her oral evidence, TN confirmed that due to the frequent staff changes at the mental health service, the represented person had not had any continuity with either doctors or nurses over the two year period since the administration order was made.
The evidence of the represented person
The represented person stated that his mental health has improved over the last few months and that he would like to look after his own money again. He said that he would arrange for Centrepay to take money out of his pension each fortnight to pay for his rent and electricity. The represented person said he was happy with his current living arrangements, residing with his mother and younger brother, and that he was willing to work cooperatively with his mental health service case manager about his finances so that his case manager would be informed as to his ongoing financial circumstances.
The report of the administrator
The Public Trustee trust manager attended the hearing by telephone. Prior to the hearing, the Tribunal was provided with a brief written report which referred to the trust manager's concerns in respect to the represented person's mother's involvement with his finances. In her oral evidence, the trust manager stated that she had a number of concerns about different requests made by the represented person's mother for the payment of accounts or for a financial contribution to be made by the represented person. In particular, the trust manager stated that the represented person's mother had asked in May 2010 for $500 to be paid as his share of the accommodation bond. These monies were paid to the represented person and, despite assurances given by him and his mother that the $500 had been paid towards the accommodation bond, the trust manager was subsequently informed by the landlord that no bond had been paid.
The trust manager also referred to the Synergy account which the represented person's mother had put in his name and which had been forwarded to the Public Trustee for payment. The trust manager explained that a decision was made by the Public Trustee that half of this account would be paid from the represented person's funds, this being $1,273.50, as the represented person resides in the property with his mother and younger brother, and in discussion with the represented person's mother, she had agreed to change the account into her name and to pay off the outstanding balance at $50 per week. The trust manager stated that the current Synergy account shows the account is still in the represented person's name and that no payments have been made by the represented person's mother. The trust manager said that a request for additional funds had also been made by the represented person's mother, as the rent was in arrears despite half of the rent being paid directly to the landlord on the represented person's behalf, and she had been informed by the landlord that other people were living in the property, contrary to being told by the represented person that it was just 'him and his mum in the unit'.
In view of the discrepancies and inconsistencies in the information provided to the Public Trustee by the represented person's mother, the trust manager indicated concern as to whether the represented person's interests would be properly protected in the absence of a plenary order.
The evidence of TR, the represented person's mother
The represented person's mother, TR, said that she receives a carer pension for caring for the represented person and she acknowledged that she has experienced financial difficulties since coresiding with him. TR said that her purse was stolen from her car around May 2010 when she and the represented person were just moving into their current rental property and as a consequence, she lost all of the money for the bond and advance rent, including the $500 advanced by the Public Trustee. TR said that her landlord had agreed for her to pay off the bond over time and that she has now paid it all off.
TR said that her younger son, aged 18 years, also lives with her and the represented person but that she supports him as he has no income. Earlier in the tenancy, TR said that her 22yearold son also stayed there for some time, but that he now lives in Esperance.
In respect to the Synergy account, TR said that she had been upset about the account being so high and that she thought that this was in part due to excessive hot water usage, as the represented person has frequent baths, up to four baths in one day. TR said that she had not made any payments herself because she had not received any further account from Synergy, and she indicated that she had thought or hoped that the account had been paid by the Public Trustee.
In respect to the administration order, TR said that she would like the administration order to remain in place but for the represented person to receive a greater amount of money so that he would be able to have more spending money, as he currently uses all of his weekly $60 allowance on buying cigarettes.
The Tribunal's findings on the represented person's capacity
The Tribunal is satisfied that the represented person has a mental disability (s 3 and s 64(1)(a) of the GA Act) in that he has a diagnosis of a psychiatric condition, this being schizophrenia associated with the use of stimulants and ADHD. The critical question is to what extent, if any, does the represented person's psychiatric condition impact on his ability to make 'reasonable judgments in respect of matters relating to all or part of his estate'. Section 64(1)(a) of the GA Act requires that there be a causative link between the represented person's 'mental disability' and his inability to make 'reasonable judgments'.
The represented person accepts that he has a diagnosis of schizophrenia and ADHD but says that he is now quite well and could look after his own money. Dr A concurs with the represented person's view that he is capable of managing his own financial affairs in respect to making reasonable judgments about his pension and budgeting to ensure his living expenses are met. There is evidence, however, from Dr A that the represented person is vulnerable to exploitation by others and that this vulnerability is directly associated with his psychiatric condition. The mental health service staff have in the past identified that the represented person was exploited financially by his brothers and by others. The Public Trustee has expressed concern as to the represented person's mother's involvement in respect to his finances.
Whilst the evidence from Dr A and the mental health team is clear that there has been a significant improvement in the represented person's functioning, the Tribunal is satisfied that the represented person remains a person for whom an administrator may be appointed due to his vulnerability to exploitation by others. The Tribunal thus finds that the presumption of capacity set out in s 4(2)(b) of the GA Act is displaced. It is the Tribunal's view that Dr A's evidence and opinion, given his limited and recent involvement with the represented person, must be balanced against the earlier evidence of the represented person's vulnerability and poor judgment in respect to his financial affairs.
Is the represented person in need of an administrator?
Section 4(2)(c) of the GA Act states that the Tribunal shall not make an administration order if the needs of the person can be met by other means less restrictive of the person's freedom of decision and action. Broadly, the principles as set out in s 4 of the GA Act provide that where an order is made, the breadth of the order should be limited to that which imposes the least restrictions on the person's freedom of decision and action.
The represented person's estate is modest; he is in receipt of a disability support pension and the Public Trustee hold funds on his behalf of less than $3,000. If the represented person were not to have an administration order in place, there is some risk that his finances may be exploited and used for the benefit of others rather than for his benefit, and there is some risk that debt may be incurred and that the represented person may be left without the financial resources to meet his basic needs.
The Tribunal is satisfied that there is a need for an administration order to protect the represented person's estate by ensuring that debts are not accrued and that his living expenses are being met. Whilst the Tribunal is satisfied that it is in the represented person's best interests for an administrator to be appointed, it is necessary to balance his need for protection against his wish for autonomy. Given the represented person's significant improvement in functioning and his wish to be responsible for his own finances, the Tribunal finds that a limited order, which gives him the responsibility of managing his disability support pension but which appoints the Public Trustee with all other powers and duties of a plenary administrator, achieves the required balance.
The Tribunal's decision is that the administration order made on 10 August 2009 appointing the Public Trustee plenary administrator for the represented person is amended such that the Public Trustee is appointed limited administrator of the represented person's estate with all of the powers and duties conferred by the GA Act on a plenary administrator, save and except for the disability support pension payable to the represented person.
This order protects and provides oversight in respect to the represented person's savings and gives him the opportunity to demonstrate his ability to manage his disability support pension. The Public Trustee is appointed in the absence of there being anyone else who is willing and suitable to be appointed administrator. The Tribunal has decided that the order should be reviewed in six months, when a fresh assessment can be made on the extent to which the represented person's illness impacts on his ability to manage his estate.
Orders
1.The order is amended so that it now reads:
The Public Trustee is appointed limited administrator of the estate of the represented person with all of the powers and duties conferred by the Guardianship and Administration Act 1990 (WA) on a plenary administrator, save and except for monies received by the represented person as a pension.
2.This order is to be reviewed by 16 February 2012.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS S GILLETT, MEMBER
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