LK
[2024] WASAT 49
•17 MAY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: LK [2024] WASAT 49
MEMBER: MS R BUNNEY, MEMBER
HEARD: 30 APRIL 2024
DELIVERED : 17 MAY 2024
PUBLISHED : 17 MAY 2024
FILE NO/S: GAA 1123 of 2024
LK
Represented Person
Catchwords:
Review of guardianship order - Review of administration order - Safety of represented person - Authorisation of payment to family member - Need for guardian to decide whether represented person will travel - Terms and conditions of travel - Guardian to hold passport
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(4), s 4(6), s 4(7), s 17A, s 43(1)(b), s 43(1)(c), s 44(1)(a), s 44(1)(b), s 44(1)(c), s 64, s 68(1), s 68(3)(c), s 84, s 86
Result:
Public Trustee reappointed as administrator
Authorisation granted for administrator to make payment to family member
Public Advocate reappointed as guardian
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
FY [2019] WASAT 118
REASONS FOR DECISION OF THE TRIBUNAL:
(The application was heard on 30 April 2024 (Hearing). An oral decision was delivered on 17 May 2024. The following reasons comprise the written reasons of the Tribunal.)
Introduction
LK is aged 23 and is currently living independently in supported accommodation. LK was diagnosed with an intellectual disability in September 2020 and received further diagnoses of complex post‑traumatic stress disorder (c-PTSD) and emotionally unstable personality disorder (EUPD) in February 2023. LK also lives with epilepsy.
LK first came to the attention of the Tribunal when Hospital M filed an application for the appointment of a guardian on 23 January 2023. At this time, LK was living in a refuge as she had left the family home following a religious ceremony that her family had hoped would help her but had in fact significantly harmed her physically and emotionally. The religious ceremony will be discussed in more detail later in these reasons.
LK has a long history of self-harm, pharmacology overdose and suicide attempts. By the time the first Tribunal hearing occurred, LK had been further hospitalised at Hospital R from 9 to 22 February 2023 following a serious attempt.[1] The Tribunal made a guardianship order on 2 March 2023 appointing the Office of the Public Advocate (Public Advocate) as LK's plenary guardian.
[1] Discharge summary from Hospital R.
LK applied to review the guardianship order in May 2023. Around the same time, LK was involuntarily admitted to Hospital B and an application was made for an administrator to be appointed to safeguard her finances due to concerns that she was at a high risk of financial exploitation.
On 18 July 2023, the Tribunal appointed the Office of the Public Trustee (Public Trustee) as LK's plenary administrator and the Public Advocate as her limited guardian to make decisions about accommodation, services, education and training, and the legal function of the next friend. The guardianship and administration orders were to be reviewed within three years.
On 27 July 2023, LK applied for a review of the administration order pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) to seek that one of her older brothers, BK, be appointed as her administrator rather than the Public Trustee. The full panel of the Tribunal decided that it was in LK's best interests that the Public Trustee remain as her plenary administrator.
Current application for review
LK sought the current review of the guardianship and administration orders pursuant to s 86 of the GA Act by filing a letter on 22 February 2024. LK is seeking that her twin brother MK be appointed as her administrator and that her mother, HK be appointed as her guardian.
LK's delegated guardian from the Public Advocate (Delegated Guardian) explained that LK had had a number of recent presentations to Hospital for self-harming behaviours and following the last admission, it was recommended that she go into respite care rather than return home. LK had been in respite for five weeks at the time of the Hearing, so from about late March 2024.
The Delegated Guardian stated that LK had not been hospitalised, had not self-harmed in any way, and there had been no calls to emergency services since she had been living away from the family home. The Delegated Guardian's view was that living independently was the safest option for LK as she was able to continue to have contact with her family, but she was not in any physical or emotional danger, either from herself or others.
LK attended the Hearing in person with her mother HK, father FK and her twin brother MK. LK's family are part of an ethnic minority that left [their Home Country] as refugees. LK's parents were assisted by an interpreter at the Hearing. The Delegated Guardian also attended the Hearing in person.
No one at the Hearing stated that LK had the capacity to make her own decisions or that she no longer needed substitute decision-makers. The only matter the Tribunal was asked to examine was who should be appointed as LK's guardian and administrator.
The issues discussed in relation to guardianship were:
(a)whether LK's mother HK was suitable to be appointed as her guardian; and
(b)what functions does LK's guardian need.
We discussed in detail the holiday that the family has planned in July 2024 to their Home Country. LK initially said that she wanted to go on the holiday, so an airline ticket had been purchased for her by her brother BK. There is now some conflict between LK and BK about him being reimbursed for the ticket, as LK does not know whether she will go on the holiday and LK's trust manager from the Public Trustee (Trust Manager) requires the authorisation of the Tribunal to reimburse BK for the ticket.
The issues discussed in relation to administration were:
(a)whether MK is suitable to be appointed as LK's administrator; and
(b)whether the Tribunal should authorise the payment to BK for the airline ticket purchased for LK.
LK's safety
An overriding issue is LK's safety and the complex nature of the family relationships. LK has a younger brother AK, her twin brother MK, and older brothers IK and BK. She has significant conflict with AK and IK. HK acknowledges that LK does have some problems with IK and AK, but viewed it as nothing serious.
The Delegated Guardian explained that when she became LK's guardian, she had assured LK that she would keep LK safe. LK has been assaulted before by family members and by other people brought into the family home during a religious ceremony. The Delegated Guardian wanted to know how HK would keep LK safe if HK was appointed as her guardian.
In terms of the religious ceremony that occurred in early 2023, HK explained that LK was having a crisis, so they took her to see a traditional doctor from their culture. The doctor recommended the ceremony occur as LK had unseen spirits inside her. The religious man who conducted the ceremony covered LK with a sheet and hit her on the arms, legs and torso with a stick in an attempt to remove the spirits.
HK stated that when the religious man was performing the ceremony, LK had a seizure and fell off the chair, which was how she was injured. The religious man insisted that LK be taken to Hospital M, which was when the original application was made to the Tribunal. LK then went to live in a women's refuge when she was discharged from Hospital M, and after a self-harm incident, she was admitted to Hospital R for 14 days in February 2023.
Because LK had the seizure, the ceremony was only half completed. HK confirmed at the Hearing that the family did not intend to bring the religious man back to finish the ceremony. MK stated that the intention was that the ceremony would help LK, and his view was that it did help her.
The Delegated Guardian asked MK if he understood that LK had an intellectual disability and what that meant. While there was not a word for 'intellectual disability' in their language, MK said that he does understand what it means. The Delegated Guardian stated, through the interpreter, that LK's way of thinking is different, and it does not matter if someone hits her or if they use traditional medicine, it is not going to make any difference to how LK thinks or behaves.
Issue of proposed travel to Home Country and purchase of airline ticket
The family is planning to travel back to their Home Country on 21 July 2024. This is a family reunion as many family members have not seen each other since their people were forced to leave their Home Country.
LK explained that when she recently went to see her brother BK, he was upset with her because he had purchased her airline ticket for the holiday and he wanted it to be reimbursed by the Public Trustee. LK said that she does not know whether she wants to travel and she felt bad that BK had purchased the ticket for her. LK would like her Trust Manager to reimburse BK for the cost of the ticket.
MK stated that it may be possible for BK to receive a refund on the cost of the ticket if MK decides that she does not want to go on the holiday. The report from LK's Trust Manager states that they are not able to reimburse the cost of the ticket without the authorisation of the Tribunal.
Evidence
I have read and had regard to the following documents:
(a)medical report prepared by Dr B dated 5 May 2023;
(b)reports from the Public Trustee dated 22 April and 29 April 2024;
(c)service provider reports dated 3 March and 8 April 2024;
(d)discharge summary from [Hospital R] following admission from 9 February to 22 February 2023; and
(e)report from the Delegated Guardian dated 24 April 2024 and further documents filed by the Delegated Guardian.
I have also had regard to the oral evidence given by LK, FK, HK, MK and the Delegated Guardian. I took all of that evidence into account when making this decision.
Principles to be observed and legislation
To appoint an administrator, I must be satisfied that LK is currently unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate and that she is in need of an administrator of her estate.[2]
[2] GA Act, s 64.
The term 'mental disability' is defined in s 3 of the GA Act and describes certain disabilities such as an intellectual disability, a psychiatric condition, dementia and acquired brain injury.
To appoint a guardian for LK, I must be satisfied that one or more of the following criteria apply to her:
(a)she is incapable of looking after her own health and safety;
(b)she is unable to make reasonable judgments in respect of matters relating to her person; or
(c)she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.[3]
[3] GA Act, s 43(1)(b).
I also need to be satisfied that there is a need for a guardian.[4]
[4] GA Act, s 43(1)(c).
The primary concern of the Tribunal is the best interests of the proposed represented person.[5] Every person is presumed to be capable of looking after their own health and safety, making reasonable judgments in respect of matters relating to their person, managing their own affairs and making reasonable judgments in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal.[6]
[5] GA Act, s 4(2).
[6] GA Act, s 4(3).
When considering any matter, the Tribunal is required, as far as possible, to ask about the views and wishes of the person concerned.[7]
[7] GA Act, s 4(7).
Orders should not be made if LK's needs could, in the opinion of the Tribunal, be met by other means less restrictive of her freedom of decision and action.[8] Finally, any order appointing an administrator, or a guardian should be in terms that impose the least restrictions possible on LK's freedom of decision and action.[9]
[8] GA Act, s 4(4).
[9] GA Act, s 4(6).
LK's views and wishes
In relation to administration, LK clearly wanted her twin brother MK to manage her finances. She said that she trusts her brother and it will be more convenient for her if she can ask her brother for money, rather than to have to ask her Trust Manager, as it takes longer.
In relation to guardianship, LK wanted her mother to be appointed as her guardian. In terms of her current accommodation, LK said that she was learning to be more independent, and she was enjoying living in respite accommodation.
Does LK have a mental disability?
I am satisfied, and I find, that LK has a mental disability within the definition of the GA Act. In addition to the diagnosis of an intellectual disability, LK has also been diagnosed with c-PTSD and EUPD. These conditions affect how LK can retain and process important information and make reasonable decisions that are in her best interests. This makes it clear, in my view, that LK's mind is 'affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal'.[10] She is extremely vulnerable in every way.
Does the mental disability cause LK to be unable to make reasonable judgments in respect of matters relating to all or any part of her estate?
[10] FY [2019] WASAT 118 at [27].
The evidence is that LK does not work and receives a disability support pension. Even with the oversight of the Trust Manger, the evidence shows that LK will continually ask to give her money away.
The report from the Trust Manager states that LK regularly calls and requests large sums of money to give to her mother and her brother because they need it. The Trust Manager said that LK was initially asking for the funds to lend to them but when it was explained that a loan needed to be paid back, it became clear to the Trust Manager that they were requesting LK give them the funds and she had no expectation of being paid back.
During the Hearing, LK stated that she was still happy to continue to give $270 per fortnight to her mother to contribute to the costs of the family home. When it was explained to her that if she moves into supported independent living, she will need to pay for rent, utilities, shampoo, clothes and food, LK stated that sometimes she does not have a good appetite, implying that she would not need to spend much money on food.
I am satisfied that LK's intellectual disability and psychiatric diagnoses cause her to be unable to make reasonable judgments about all of her estate. She is extremely vulnerable to financial exploitation by others and is unable to advocate for herself or understand her financial needs.
Accordingly, I am satisfied that the presumption of capacity is rebutted by the diagnosis of an intellectual disability and LK is therefore a person for whom I can appoint an administrator.
Is LK unable to look after her own health and safety, to make reasonable judgments in respect of matters relating to her person, or is she in need of oversight care or control?
In terms of guardianship and the ability to make personal decisions, I find that LK is able to clearly articulate her wishes, which she has done before the Tribunal, and she wants her mother to be her guardian. It was clear to me that she loves her family and that she is very loyal to them.
It was also clear to me that LK's mental health is extremely fragile. In the past when she has become overwhelmed, she has caused significant harm to herself, both by attempting to overdose on medication and by cutting herself. I am satisfied that LK is unable to look after her own health and safety and she is in need of oversight care or control in order to keep her safe.
LK's National Disability Insurance Scheme (NDIS) plan needs to be reviewed in order for her to be able to continue to live independently. I am satisfied that LK would not be able to arrange the review of the NDIS plan herself, and she is therefore unable to make reasonable judgments in respect of her personal matters.
I am satisfied that the presumption of capacity in respect of LK's ability to look after herself and make reasonable judgments about her personal matters is rebutted by the evidence. I am also satisfied that LK is in need of oversight, care or control in the interests of her own health and safety.
Accordingly, LK is therefore a person for whom I can appoint a guardian.
Is LK in need of an administrator or a guardian?
I am satisfied on the evidence before me that there is no less restrictive means available for decisions to be made in LK's best interests other than the appointment of both a plenary administrator and a limited guardian. LK requires a substitute decision-maker that has the legal authority to manage her finances and make arrangements for her, specifically around accommodation and NDIS services.
Who can the Tribunal appoint?
When considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in the best interests of LK, is suitable to act as the administrator of her estate,[11] and will be able to perform the functions vested in them.[12]
[11] GA Act, s 68(1).
[12] GA Act, s 68(3)(c).
When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in the best interests of LK, is suitable to act as the guardian,[13] is not in a position where their interests conflict or may conflict with LK's interests,[14] and that the proposed guardian will be able to perform functions vested in them.[15]
[13] GA Act, s 44(1)(a).
[14] GA Act, s 44(1)(c).
[15] GA Act, s 44(1)(b).
The Tribunal must take into account the desirability of preserving existing relationships within LK's family, and the impact upon the relationships between LK and her mother if she was appointed guardian, and LK and her twin brother MK if he was appointed administrator.
Who should be LK's guardian?
HK has proposed herself as LK's guardian. I find that HK is over the age of 18 and has consented to act as guardian.
Accommodation
LK is living close to the family and has continued to visit them at home. The Delegated Guardian explained that she had had a conversation with LK's mother HK, who had talked about the difficulties that LK's behaviour presents the family. LK often had conflict, both physical and verbal, with her older brother IK and her younger brother AK.
All of the family members that attended the Hearing stated that their view was that it was best for LK to live at home, and they all wanted her to return to live at home. FK stated that LK can be very stressed at times and she cannot make sound decisions. FK's view was that it did not matter who was appointed as the guardian, as long as LK comes back home and is looked after by the family. HK said that she would feel much better if LK was living at home.
I am satisfied that HK's preference and that of her husband, that LK live at home, will interfere with HK's ability to make decisions solely in LK's best interests in relation to accommodation. The evidence is clear that LK's self-harming behaviour has significantly decreased since she has moved away from the family home, so a guardian acting in her best interests would need to be able to evaluate whether continuing to live independently is what is best for LK. I am not satisfied that HK would be able to do this.
HK also stated that if LK found employment, then there could be discussions about LK living independently. MK also shared this view. I am concerned that the requirement of LK finding employment before she can move out of the family home is unrealistic in terms of her medical diagnoses.
I therefore find that HK is unsuitable to be appointed as LK's accommodation guardian.
NDIS services
The Delegated Guardian asked HK, if she was appointed as LK's guardian, how she would handle the complexity around the NDIS. The Delegated Guardian explained that as part of her role as guardian, she reads many contracts and service agreements. HK explained that because LK reads and writes in English, HK will be able to manage the NDIS with LK's assistance.
The Delegated Guardian provided information that different accommodation options are being looked into to ensure that LK's funding lasts as long as possible while further NDIS approvals are being obtained.
As I am not satisfied that HK will be able to impartially evaluate LK's best interests in terms of the independent accommodation options. I am not satisfied that HK will be motivated to seek further funding from the NDIS so that LK can continue to live independently. Further, because of LK's intellectual disability, I am not satisfied that HK would be able to navigate the complexities of the NDIS by relying on LK's ability to read and write in English.
I find that it is not in LK's best interests, and I find that HK is unsuitable to be appointed as LK's guardian to make decisions about services.
Travel
LK seems to change her mind about wanting to go on the overseas family holiday. Because I am satisfied that LK is unable to look after her own health and safety, make reasonable judgments about her person and that she is in need of supervision in order to keep herself safe, I am satisfied, and I find, that it is appropriate that her guardian has the authority to decide whether she is to travel interstate or overseas, and the terms and conditions of such travel.
It is also necessary in my view that the Delegated Guardian hold LK's passport to ensure that she does not travel without the appropriate arrangements being in place in order to keep her safe. When LK becomes overwhelmed, she has a history of self-harm so it is vitally important that if she travels, a safety plan is put in place to protect her.
Due to the concerns I have outlined above in relation to HK's inability to separately consider LK's best interests, I find that HK is not suitable to make decisions about LK's travel.
Next friend
The guardianship order dated 18 July 2023 included the legal function of next friend, so the guardian could commence conduct or settle any legal proceedings on behalf of LK except proceedings relating to her estate. The report from the Public Trustee stated that they were continuing to look into legal matters relating to LK, and my view is that it is in LK's best interests that the next friend function be included on the guardianship order in the event that it is needed.
Medical treatment
Due to the number of hospitalisations that LK has had, and the fact that she is now living independently, my view is that it is appropriate that LK's guardian have the authority to give informed consent about medical treatment and procedures. This is to ensure that any medical professional treating LK is able to be given informed consent by the Delegated Guardian if they are not satisfied that LK is able to give that consent herself. I will therefore include this function in the guardianship order.
Who should be LK's administrator?
LK has proposed MK to be her administrator because she trusts him. MK said that he is happy to assist LK to budget her funds. He said that the whole family tells her not to be wasteful with her money. I find that MK is over the age of 18 and has consented to act.
MK, like the rest of the family, wants LK to be back living at home. In terms of LK living independently, MK stated that if LK found a job and had her own income, then she could live on her own outside of the family home. As stated earlier in these reasons, my view is that it is not realistic to expect that LK would find employment and earn enough to be able to afford to rent in the private market by herself.
I am not satisfied that it is in LK's best interests to place a requirement on her that she would need employment and a high income before she would be able to leave the family home. Despite my genuine belief that MK has his sister's best interests at heart, I find that he is unsuitable to be appointed as LK's administrator because he is unable to separate her interests from the interests of the rest of the family, and I am not satisfied that he would provide funds to LK to allow her to continue to live independently.
In terms of preserving the existing relationships within LK's family, in the event that MK did agree for LK to live independently, that could place him in a position of conflict with his mother and father, who very clearly want LK to continue to live at home. This is a further reason that I find MK unsuitable to be appointed as LK's administrator.
Functions and powers
Administration
I am satisfied that it is appropriate that the administration order be a plenary order, which will allow the administrator to deal with all aspects of LK's estate, including dealing with the ongoing legal investigations and making all financial arrangements in relation to paying LK's ongoing bills as required.
I will include a gifting authority of $200 per annum to allow the administrator to buy gifts on behalf of LK, which was included on the last administration order. I will also include an authorisation to allow the administrator to allow LK a trial of managing part of her income in order to build her skills in managing her money.
I will also authorise the Trust Manager to reimburse the full amount of the airline ticket to BK in the event that LK intends to go on the holiday. LK was upset that the delay in the reimbursement of the ticket was affecting her relationship with BK. My view is that it is in LK's best interests that the cost of the ticket be reimbursed to BK in order to resolve the resentment between him and LK, which is impacting on the supportive relationship that LK has with BK.
In the event that LK does not go on the holiday, I will authorise the Trust Manager to reimburse the part of the ticket that was not able to be refunded.
Guardianship
I am satisfied that it is appropriate that the guardianship order be limited and include the functions of accommodation, medical treatment, services, travel and next friend. My reasons for this have already been set out in detail.
How long should the order run for before it must be reviewed?
When making orders, the Tribunal is required to fix a period for the review of the order.[16]
[16] GA Act, s 84.
The medical evidence states that LK has an intellectual disability. This is a static condition which affects how LK is able to understand and process information and make good decisions for herself. When her inherent vulnerability is taken into account, it is likely that LK's need for a guardian and an administrator will be lifelong.
However, due to her young age, I will make these orders reviewable in three years' time so the Tribunal can check in with LK to see whether the orders are continuing to operate in her best interests.
I therefore make the following declarations and orders.
Orders
The Tribunal declares that the represented person, [LK] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(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; and
(f)in need of a guardian.
The Tribunal orders:
Administration
The administration order dated 14 November 2023 is revoked and substituted with an order in the following terms:
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 administrator is authorised to expend up to a total amount of $200 per annum on gifts on behalf of the represented person.
3.The administrator is at their discretion authorised to allow the represented person a trial of managing the balance of their income after payment by the administrator of expenses they consider to be essential, which includes, but is not limited to, ambulance insurance and Public Trustee fees. The administrator may terminate the trial if they form the view that it is no longer in the represented person's best interests.
4.In the event that the represented person intends to travel on the overseas holiday with her family in July 2024, the Trust Manager is authorised to reimburse the represented person's family the cost of the airline ticket.
5.In the event that:
(a)the Public Advocate as the represented person's guardian does not grant permission for the represented person to travel overseas with her family in July 2024; and
(b)the family is not able to obtain a full refund on the airline ticket purchased for the represented person to travel in July 2024,
the Tribunal authorises the Public Trustee to reimburse to the represented person's family the cost of the airline ticket that was not able to be refunded.
6.The administration order is to be reviewed by 17 May 2027.
Guardianship
The guardianship order made on 18 July 2023 is revoked and substituted with an order in the following terms:
7.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 make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine the services to which the represented person should have access;
(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;
(f)to decide whether the represented person is to travel interstate or overseas, and the terms and conditions of such travel; and
(g)to hold the represented person's Australian passport and any other passport issued to the represented person.
8.The represented person's passport or passports are to be provided to the Public Advocate within 14 days of the date of this order.
9.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.
10.The guardianship order is to be reviewed by 17 May 2027.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
17 MAY 2024
0