LJC and IC and RJC
[2006] WASAT 19
•31 JANUARY 2006
LJC and IC & RJC [2006] WASAT 19
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 19 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1706/2005 | 6 DECEMBER 2005 | |
| Coram: | MR E LEIPOLDT (SENIOR SESSIONAL MEMBER) | 31/01/06 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for a guardianship order dismissed Administration order made | ||
| B | |||
| PDF Version |
| Parties: | LJC IC & RJC |
Catchwords: | Guardianship, administration Guardianship and Administration Act 1990 (WA) Application Capacity Need Mental illness Vulnerability Enduring power of attorney DNA paternity test Accommodation Access to services Legal representation Consent to medical treatment Contact with others |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43, s 43(1)(a)(b), s 43(1)(b), s 64(1)(a) |
Case References: | Nil Nil |
Orders | 1. That the guardianship application be dismissed. |
Summary | LJC is a 25 year old woman diagnosed with a bi-polar spectrum disorder, cyclothymia, personality disorder and childhood Attention Deficit Hyperactivity Disorder (ADHD). She is five months pregnant, allegedly from an unstable and abusive relationship. There is conflict between LJC's family and the biological father of her child. She is said to be vulnerable to persons requesting money of her or to whom she may gift moneys. LJC had a history of not managing her finances well and not paying bills. The joint applicants are her parents who seek to be appointed jointly as guardians and administrators. A guardianship issue was whether LJC could consent to undergoing a DNA test, requested by the biological father. Other guardianship issues raised by the applicants include RJC's place of residence, and who she would live with, compliance with taking medication to control her psychiatric condition, consent to medical treatment, contact with others, access to services, education, training and employment and attendance to personal hygiene. The State Administrative Tribunal accepted the withdrawal of the guardianship application as there was no need to appoint a guardian. It appointed as joint plenary administrators LJC's parents RJC and IC for a period of two years. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LJC and IC & RJC [2006] WASAT 19 MEMBER : MR E LEIPOLDT (SENIOR SESSIONAL MEMBER) HEARD : 6 DECEMBER 2005 DELIVERED : 31 JANUARY 2006 FILE NO/S : GAA 1706 of 2005 BETWEEN : LJC
- Represented person
AND
IC & RJC
Applicants
Catchwords:
Guardianship, administration - Guardianship and Administration Act 1990 (WA) - Application - Capacity - Need - Mental illness - Vulnerability - Enduring power of attorney - DNA paternity test - Accommodation - Access to services - Legal representation - Consent to medical treatment - Contact with others
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 43(1)(a)(b), s 43(1)(b), s 64(1)(a)
(Page 2)
Result:
Application for a guardianship order dismissed
Administration order made
Category: B
Representation:
Counsel:
Represented person : N/A
Applicants : N/A
Solicitors:
Represented person : N/A
Applicants : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 LJC is a 25 year old woman diagnosed with a bi-polar spectrum disorder, cyclothymia, personality disorder and childhood Attention Deficit Hyperactivity Disorder (ADHD). She is five months pregnant, allegedly from an unstable and abusive relationship. There is conflict between LJC's family and the biological father of her child. She is said to be vulnerable to persons requesting money of her or to whom she may gift moneys. LJC had a history of not managing her finances well and not paying bills. The joint applicants are her parents who seek to be appointed jointly as guardians and administrators. A guardianship issue was whether LJC could consent to undergoing a DNA test, requested by the biological father. Other guardianship issues raised by the applicants include RJC's place of residence, and who she would live with, compliance with taking medication to control her psychiatric condition, consent to medical treatment, contact with others, access to services, education, training and employment and attendance to personal hygiene. The State Administrative Tribunal accepted the withdrawal of the guardianship application as there was no need to appoint a guardian. It appointed as joint plenary administrators LJC's parents RJC and IC for a period of two years.
Introduction
2 LJC is 25 years old, she has diagnoses of psychiatric disorders including Attention Deficit Disorder (ADD), bipolar spectrum disorder, depression, cyclothymia, cognitive impairment and personality disorder and has seen a psychiatrist at least since age 13.
3 LJC's parents applied for an administration order out of concern that LJC was being financially exploited by others, including by the father of her unborn child. She was not paying board for her residence at her mother's home, had large credit card debts to a total of around $4200 that she had difficulty repaying and she had other unpaid bills. A further concern was how LJC might manage the federal government's baby bonus payment upon the birth of her child. The applicants proposed themselves as joint administrators.
4 The application for guardianship was motivated by the applicants' desire to stop persons taking advantage of their daughter as well as out of concern for the soon-to-be-born grandchild. A paternity test by the alleged biological father of LJC's child required LJC to consent to a DNA
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- test. It was uncertain in the parents' mind whether LJC could consent to this procedure in an informed manner and weigh up the consequences. The applicants were concerned also about LJC's ability to make simple decisions about taking her medication and also about a lack of proper attention to her personal hygiene. Despite intensive interventions this situation had not improved. The applicants sought a guardianship order that included functions with regard to accommodation, medical treatment, access to services, legal representation, contact with others, education, and training and employment.
5 Present at the hearing were LJC, her mother IC and father RJC, and the Public Advocate's delegate NB.
Background
6 LJC's parents divorced in 2000 and she lives with her mother in Thornlie, Perth. LJC's income is from a disability support pension. She has not completed year 10 in high school and had a history of difficulties in obtaining and maintaining employment, apparently partly a result of her psychiatric illness. Besides these obstacles, for the foreseeable future any employment is problematic because of the impending birth of her child.
7 LJC has a history of not paying board and lodging to her mother, of unpaid bills and large debts on credit cards, relative to her income. More recently she has been paying her board and lodging but had stopped paying off debts. RJC has given money to persons, allegedly to buy their friendship and other friends had taken advantage of her financially. The family and service system have been unable to resolve this ongoing situation.
8 The applicants state that LJC's sister, who was not present, supports their application.
9 LJC opposes the appointment of an administrator as she feels capable of managing her finances herself. She also feels that she is now managing well.
Capacity
10 The State Administrative Tribunal (the Tribunal) must consider the issue of capacity as a precursor to the consideration of application for orders relating to an adult person.
11 Section 4 of the Guardianship and Administration Act (1990) (WA) (Act) states:
(Page 5)
- "(1) In dealing with proceedings commenced under this Act, the State Administrative Tribunal shall observe the principles set out in subsection (2).
(2) ...
(b) Every person shall be presumed to be capable of –
(i) looking after his own health and safety;
(ii) making reasonable judgments in respect of matters relating to his person;
(iii) managing his own affairs; and
(iv) making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal."
" ... 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 ... "
13 On hearing any guardianship order the Tribunal must be satisfied that the requirements in s 43 of the Act apply. The Tribunal must be satisfied on the evidence that the represented person is incapable within the terms of s 43(1)(b).
Evidence
14 In making its judgment about LJC's capacity the Tribunal relied on the following evidence.
15 Dr Clarkson has treated LJC for about three years and last saw her on 8 August 2005. He is a general practitioner who specialises solely in psychiatry and psychological medicine. His report dated 20 September 2005 diagnosed LJC with bipolar spectrum disorder and suggested cognitive impairment. He first recognised this condition in 2003 and states that it is static. He further states that RJC's behaviour is erratic with mood swings and she is "unable to control her [illegible]
(Page 6)
- activities, i.e. inappropriate spending [and] giving money away". He states that she is incapable of making reasonable decisions about her personal health care (including medical and dental treatment and consent, and self care), her living situation (includes routine household decisions and accommodation issues) and financial affairs and cannot make an enduring power of attorney. She refuses to take medication and "fails to see the consequences of her actions".
16 In Dr Clarkson's report of 27 October 2005 he states that he now believes that LJC is not capable of making reasonable decisions about her personal health care, is unsure whether she is capable of making reasonable decisions about her living situation and still believes that LJC is incapable of making reasonable decisions about her financial affairs. He is not sure whether she can make an enduring power of attorney. He writes:
"The very issue of a significant mood disorder does not allow full insight into the ramifications of her actions."
17 Dr Rampono is the Head of Psychological Medicine at King Edward Memorial Hospital. He met LJC and her mother on 10 August 2005. He confirmed that LJC refused to take her medication. The reason was to protect her unborn child from any harm.
18 Dr Roberts is a psychiatrist who has known LJC for 18 months and last saw her on 3 August 2004. In his report of 27 October 2005 he diagnosed ADD, bipolar disorder and depression. He gave the prognosis as "good" based on responses to some specific medications to treat her ADD and bipolar disorder. He stated that LJC was capable of making reasonable decisions about personal health care, living situation and financial affairs. He also believed that LJC was capable of making an enduring power of attorney. He qualified his findings by stating that he based his conclusions on his last clinical review of LJC, dated 3 August 2004. Furthermore he wrote that Dr Clarkson was the principal treating doctor who referred LJC to him to treat her ADD. In his opinion Dr Clarkson would have more up-to-date information on the mental state and her capacity to manage her affairs.
19 Dr Crisp is a general practitioner who has known LJC for 13 years and last saw her on 5 October 2005. In her report of 31 October 2005 she diagnosed childhood Attention Deficit Hyperactive Disorder (ADHD), low average IQ, associated learning difficulties, maladaptive social and personal development, and cyclothymia. She was referred to a
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- psychiatrist in 1993. Her impairment is of a progressive and fluctuating nature. She notes that LJC was seen by psychiatrist Dr Kumar, who was unable to make a formal adult psychiatric diagnosis on initial assessment. She notes that his differential diagnosis is adult ADHD, variant bipolar disorder, personality disorder and cyclothymia. She believes that LJC is capable of making reasonable decisions about her personal health care, is not sure whether she can make reasonable decisions about her living situation nor about her financial affairs. With regard to the latter she states "the parents could best answer this". She adds "LJC has shown she ultimately requires enormous amounts of support from her parents to help her cope with her impulsive actions, her poor anger control, her conduct disorder and low tolerance to confronting and dealing with life's daily problems. She is currently pregnant in a dysfunctional relationship with the father who may not be supportive. Her ability to cope on her own as a parent is the main worrying factor for LJC's parents". Dr Crisp believes LJC can make an enduring power of attorney.
20 In his undated letter, received by the Tribunal on 30 September 2005, Dr Clarkson refers to the diagnosis by Dr Kumar. He states that he believes that LJC has a mood disorder falling within the bipolar spectrum although Dr Kumar feels it is not a full bipolar condition. Dr Clarkson reiterates that LJC is not capable of making reasonable decisions when he states that LJC "should not be held liable for her actions" as her actions are influenced by her mental illness.
21 A written submission from LJC's niece MT, dated 26 November 2005, states her observation of LJC's lack of "general motivation and sense of responsibility over the last four years". She did not believe that LJC has the ability to make reasonable decisions about her "personal, financial and life decisions". She concludes by stating:
"As a family we have become overwhelmed with the unhappiness and despair that LJC's situation has caused, not only to herself but [to] all of us who love her, and are extremely concerned for her future and that of her baby…"
22 A written statement from LJC's parents accompanied their application. It describes LJC's difficulties in comprehension and mood control. Her learning difficulties led to early termination of her high school enrolment. From age 13 to 19 she was under psychiatric treatment for ADHD. Her difficulties extended to keeping employment, resulting in her receipt of the disability support pension. Her mood swings during pregnancy have caused much stress to LJC and her parents. She refuses
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- to take medication during pregnancy despite alternative medicines being prescribed to protect her unborn baby. LJC is highly gregarious which has led her "into many financial follies, as she is unable to discern between genuine friends and hangers on who use her for their financial benefit and then dump her". LJC's behaviour had caused her to become known to the police. Her "credit card spending with Target [on a Target credit card] has now reached an alarming amount which she has not been able to successfully manage despite repeated pleas by us as parents to help her budget for and pay off". The amount has reached $4200, partly caused by LJC's ex-boyfriend and alleged biological father to her child "convinced her to buy things for him that he then sold to satisfy his drug habit". LJC stole her mother's credit card to fly to Kalgoorlie and stay in a hotel, involving a cost of $1500. Further debts are outstanding. The applicants confirmed many of these details during the hearing.
23 NB, of the Office of Public Advocate, in her report of 1 December 2005 states that in her opinion there "appears to be substantial evidence to support the view that LJC has no insight into her inability to manage her finances or make informed lifestyle decisions". It would appear from this information that LJC is a person for whom a guardian and administrator could be appointed. NB confirmed this view during the hearing.
24 LJC herself states that she is capable of managing all her affairs.
Findings
25 Although there are some inconsistencies in the various medical professional's diagnoses and judgment of capacity, Dr Robertson defers to Dr Clarkson as the one with the greatest current knowledge of LJC's case. Dr Clarkson's assessment is incapacity in matters of personal health care and financial affairs. Another treating doctor, Dr Crisp qualifies her "not sure" assessment with regard to LCJ's capacity to manage her finances by deferring to the parents' knowledge. The parents believe LJC is not capable of making reasonable decisions about her finances and in many lifestyle matters. There is a clear long-term picture of disabilities that affect LJC's mental capacity and result in significant volatility and vulnerabilities in her life.
26 Upon this evidence the Tribunal is satisfied that s 4 and s 64(1)(a) are met and that LJC is a person for whom an administration order could be made. On this evidence the Tribunal is not satisfied that the requirements of s 43(a)(b) are met.
(Page 9)
Need
27 The Tribunal can only make an order if the needs of the person in respect of whom an application is made could not, in the opinion of the Tribunal be met by other means less restrictive of the person's freedom of decision and action.
Evidence
28 The evidence as to the question of need is as follows.
29 With regard to administration the Tribunal heard that LJC has long-standing behavioural problems which affect the way she manages her finances. She accumulated a large debt on her Target card of around $4200 LJC, stole her mother's credit card involving a debt of $1500. She has a long history of not paying board and lodging. It is possible that this may make her accommodation at her mother's uncertain as IMC can no longer financially support her daughter. Further debts are outstanding. Furthermore, she has been financially exploited by others, be it to offer surety for a friend's bail bond, pay for a friend's car service or give money to others who demand this of her or to buy friendship. The applicants worry that LJC may not well manage the federal government's "baby payment" of $3000 upon the birth of her child. All the evidence given by the applicants, by an aunt and in medical reports confirm an overall picture of LJC's difficulty of managing her finances and of vulnerability to exploitation by others. The only dissenting voice is that of LJC.
30 LJC gave evidence that she is paying off her various debts and has made recent payments for board and lodging. Her parents confirm this.
31 With regard to guardianship the applicants sought the powers to decide about accommodation, medical treatment, access to services, legal representation, contact with others, education, and training and employment.
32 The Tribunal did not hear evidence of LJC's accommodation being at risk, especially not if an administrator paid board and lodging. LJC did not want to move to Kalgoorlie to live with her ex-boyfriend and wished to remain where she was. The applicants agreed with this view of the situation.
33 The power to give consent to medical treatment was primarily for purpose of LJC undergoing a non-invasive and simple procedure for a DNA test. Upon questioning LJC she did understand the procedure, its purpose and implications with regard to establishing paternity of her baby.
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- Her current refusal to take medication will likely be resolved after the child's birth when LJC will resume taking these. Some medical reports state that LJC has or possibly has capacity to make some decisions about her lifestyle. The applicants agreed that a need did not exist with regard to these issues.
34 There were currently no services that LJC would benefit from. She has had financial counselling but due to her behaviour this was terminated.
35 Currently there were no issues that required legal representation, either in relation to LJC's estate or to her person. Debt payments would be managed by an administrator.
36 Presently LJC did not have contact with the main person who influenced her in spending money recklessly, her ex-boyfriend. LJC was adamant that she was not interested in any such contact either. The ex-boyfriend lives a great distance away and has not made contact for some time.
37 Issues with regard to education and employment were not relevant given LJC's pregnancy.
38 The applicants agreed that there was no need for a guardianship order and withdrew their application.
39 They propose themselves as joint administrators of LJC's estate believing that such an appointment will safeguard LJC from attention from potential financial exploiters, pay off her debts, manage her "baby payment" and attend to her ongoing bills and expenses.
40 NB, the Public Advocate's delegate agreed.
41 The applicants argued that they be appointed as joint plenary administrators. The option of appointing an independent administrator, such as the Public Trustee was discussed. The Tribunal put it to the applicants that perhaps such an appointment may better allow for attention to the personal relationship between the parents and LJC, without the intrusion of conflict-causing financial decisions made by the parents as administrators. The applicants were adamant that they thought they were the preferred appointment. They know LJC, her characteristics and needs and are able to deal with any conflict that may arise.
42 NB agreed with their stance and supported their appointment.
(Page 11)
Findings
43 As a result of her mental illness LJC has a long history of incurring debts while not being able to pay these off. She has within the last two weeks paid board and lodging. While this is a positive step the Tribunal puts the greater weight of evidence on her long history of not paying such bills and of mismanagement of her financial affairs. She is vulnerable to financial exploitation of others.
44 It is important for LJC that her substantial debts (relative to her income and assets) are paid off so that in the future she may use her income for her upkeep and that of her child. She needs to be safeguarded from attention from potential financial exploiters. Furthermore it is important for her and her baby that the "baby payment" will be appropriately used.
45 The Tribunal did not consider that LJC should execute an enduring power of attorney as a less restrictive alternative to an administration order. There is conflicting medical evidence of her ability to do so. Moreover, given LJC's vulnerability to the influence of others, the Tribunal does not believe that LJC would necessarily be able to select competent and trustworthy attorney(s), nor fully understand the nature of such a document and its implications.
46 Although s 43(a)(b) are not met, the Tribunal heard evidence about the need for a guardianship order, in case it threw further light upon LJC's capacity in this regard. The Tribunal sees no need for a guardian to be appointed at present. Some of the applicant's original concerns are addressed by the appointment of an administrator, namely contact with undesirable others and stability of accommodation. As for consent to give a biological sample for a DNA paternity test the Tribunal is satisfied that LJC is capable of doing this. There are no issues about access to services nor about education, training or employment. Furthermore there is no need for legal representation.
Wishes of the represented person
47 The Tribunal is required "as far as possible, to seek to ascertain the views and wishes of the proposed represented person as expressed, in whatever manner, at the time, or as gathered from the person's previous actions…"
48 LJC is clear that she believes she is capable in all areas of her life; feels that she is already demonstrating that she can pay regular board and
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- lodging and can attend to her debt payments. She opposes the appointment of an administrator or guardian.
49 The Tribunal disagrees with her for the reasons set out above.
Conclusion
50 LJC is not capable of making reasonable decisions about her financial affairs. She needs to have an administrator of her estate to maximise the benefits of her income for her and her child, and safeguard her from potentially unstable accommodation and vulnerability to financial exploitation by others.
51 A two-year order is necessary to put her affairs in order and to allow for the possibility of LJC's recovery to such an extent that she may attend to some or all of her financial affairs herself. Two years is a reasonable timeframe for LJC to work towards such aims should her condition allow.
52 The Tribunal agrees that the applicant/parents are suitable to be appointed as joint plenary administrators and are able to work together for LJC's best interests.
53 There is no need for a guardian under the present circumstances
54 In all these circumstances the Tribunal determined that there was a need to appoint administrators for LJC and made the following orders.
1) RJC and IMC be appointed joint plenary administrators of the estate of the represented person with all the powers and duties conferred by the Act.
2) The administrators are authorised to sign for any transactions jointly or severally.
3) This order is to be reviewed by 6 December 2007.
55 The Tribunal determined there was no need to appoint a guardian and made the following order.
1) That the guardianship application be dismissed.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR E LEIPOLDT, SENIOR SESSIONAL MEMBER
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