LN
[2014] WASAT 168
•11 DECEMBER 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: LN [2014] WASAT 168
MEMBER: MR J MANSVELD (SENIOR MEMBER)
HEARD: 3 APRIL 2014
DELIVERED : 3 APRIL 2014
PUBLISHED : 11 DECEMBER 2014
FILE NO/S: GAA 1037 of 2014
MATTER :LN
Represented Person
Catchwords:
Guardianship and administration Capacity Need for orders Plenary orders made Public appointments
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 4, s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 64(1)(a), s 64(1)(b), s 68, s 68(1)
State Administrative Tribunal Act 2004 (WA), s 77
Result:
Public Advocate appointed as guardian and Public Trustee appointed as administrator
Summary of Tribunal's decision:
A young man had been under the care of the Department for Child Protection and Family Support. He was about to turn 18 years of age. Applications for guardianship and administration orders were made so that the young man could be under protective orders when he reached adulthood.
The young man had arrived in Australia with his father and two older sisters in 2002, having been born in a refugee camp in Africa.
The young man had been diagnosed with autism and had severe behavioural problems. The evidence was that he had endured a traumatic early life.
The young man's father had asked the Department for Child Protection and Family Support to assist him in the young man's care because the carer role had become too onerous.
The relationship between the young man and his father was poor, and the young man had stated that he did not want his father involved in his decisionmaking.
The young man's father had also had a difficult relationship with the case workers of the Department for Child Protection and Family Support.
The young man and his family had suffered great trauma in their lives as refugees. Since coming to Australia they had had to adapt to cultural norms which were different to those of their country of origin.
Superimposed onto this very difficult time of adjustment was the fact that the young man had significant disabilities manifesting in behavioural difficulties which put him and others in the community at risk.
In these circumstances, the Tribunal determined that it was in the young man's current best interests for his guardian and administrator not to be a family member.
The Public Advocate was appointed the young man's guardian and the Public Trustee as the administrator of his estate.
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:
Background
LN was born in a refugee camp in Africa on 9 April 1996. He arrived with his father (BN) and two older sisters in 2002.
LN first came to the attention of the Department for Child Protection and Family Support (Department) in 2008 when aged 12 years, and then again in 2011 and 2012. The concerns of the Department related to the apparent difficulty BN was facing caring for LN. The contact in 2012 led to LN living away from the family home and culminated in him being placed in the care of the Department. BN remained his legal guardian.
LN has been diagnosed with autism, intellectual impairment (borderline IQ), and conduct disorder in the context of aggressive behaviour, and he suffers from epilepsy for which he is prescribed medication.
At the time of the hearing before the Tribunal, LN was 17 years of age. The Department had made an application for guardianship to apply from when LN reached 18 years of age and an application for an administration order to apply immediately.
LN had been approved for funding from the Disability Services Commission (Commission) for his accommodation needs and for alternatives to employment.
The applications for guardianship and administration orders were made at a time when LN was in transition from the Department's care and protection to adulthood.
The hearing of the Tribunal was attended by LN, BN, BEN (LN's sister), representatives from the Department and Commission, the State Solicitor (legal representative for the Department), GD (from LN's support agency), and DD, an investigator from the Office of the Public Advocate (Public Advocate).
On 3 April 2014, I appointed the Public Advocate as LN's plenary guardian and the Public Trustee as his plenary administrator for an initial period of two years.
The following are the reasons for that decision pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA).
The relevant legislation
The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
The GA Act requires the Tribunal to proceed through a number of steps in order to arrive at a decision about whether to appoint a guardian and administrator for LN.
A finding must first be made about LN's capacity. The starting point is that LN is presumed to be able to look after his own health and safety or make reasonable judgments about his person, and is able to make reasonable judgments about his estate: s 4(3), s 43(1)(b) and s 64(1)(a) of the GA Act.
The Tribunal must further be satisfied that there is a need for a guardian and administrator to be appointed. Orders should not be made if LN's needs can be met by other means less restrictive of his freedom of decision and action: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
If guardianship and administration orders are made, the Tribunal must decide what should be the scope of those orders. If LN's personal needs can be met by the making of a limited guardianship order then a plenary order should not be made: s 4(5) of the GA Act. There is no such express restriction in the making of administration orders, although any limited order made should reflect the needs of LN: s 4(6) of the GA Act.
If a guardianship order is made then the Tribunal must decide who should be appointed. Section 44 of the GA Act provides guidance to the Tribunal in the answer to that question. The Tribunal must be satisfied that the proposed guardian will act in LN's best interests; not be in a position where the proposed guardian's interests conflict, or may conflict, with his interests and that the person otherwise be suitable to act as guardian. Suitability takes into account the desirability of preserving existing family relationships; the compatibility of the proposed guardian with LN and his administrator; LN's wishes; and whether the proposed guardian will be able to perform the role that he or she is given.
As regards the appointment of an administrator, s 68 of the GA Act requires the Tribunal to form an opinion as to whether the proposed appointee will act in the best interests of LN and is otherwise suitable to act as administrator. The Tribunal shall take into account as far as is possible, the compatibility of the proposed appointee with LN and with the guardian, the wishes of LN, and whether the proposed appointee will be able to perform the role that he or she is given.
The Public Advocate is able to be appointed LN's guardian only if it is determined by the Tribunal that there is no one else suitable or willing to undertake that role: s 44(5) of the GA Act. The Public Trustee consents to his appointment as administrator should the Tribunal similarly find that no other person is suitable or willing to be appointed to that role: s 68(1) of the GA Act.
When going through all the steps just mentioned, the Tribunal must as far as possible seek to ascertain LN's views and wishes, but ultimately must make a decision in what the Tribunal determines to be in his best interests: s 4(2) and s 4(7) of the GA Act.
LN's capacity
In addition to the oral evidence of the parties at the hearing, the Tribunal had the benefit of medical and other reports which make reference to LN's cognitive abilities and his functioning in the community.
A report by a paediatrician from 2010 states the concern of LN's sudden changes of mood, his hyperactivity and his aggression. The paediatrician raises the possibility of 'an autism spectrum disorder being coexistent with [LN]'s epilepsy and learning difficulties'.
A letter from the Commission to BN dated 23 December 2010 states that LN had been formally diagnosed with autism after an assessment was conducted by a paediatrician, psychologist and speech pathologist.
LN's general practitioner in a report from August 2013 states that LN has been diagnosed with borderline IQ, a conduct disorder, and epilepsy (autism is not mentioned). The general practitioner refers to a 2012 report from a child and adolescent psychiatrist in which these diagnoses were initially made.
The child and adolescent psychiatrist states that LN does not present with a major psychiatric disorder:
There is, however, a longstanding emotional and behavioural dysregulation which undoubtedly stems from his traumatic early childhood experiences and which have been reinforced by inadequate parenting and [LN]'s feelings of being rejected by his father.
The child and adolescent psychiatrist states that LN's epilepsy has contributed to his emotional dysregulation and could be responsible for an escalation of his aggressive behaviours.
In an application for support funding prepared by the Department and the Commission in October 2013, the following statements are made regarding LN's functioning:
•His social skills have been assessed around the developmental age of an eight to 11‑year‑old.
•He struggles to have any meaningful social connections in the community.
•He will threaten and act with violence in order to control a situation.
•He is unable to predict the consequences of his actions.
•He requires intensive therapy and supervision in order to identify and control his aggressive behaviours on a daily basis.
•He requires assistance to manage daily living tasks such as developing appropriate routines, meal preparation, maintaining health, financial management and household management.
•He spends most of his Centrelink money on leisure products and is unable to plan for essentials.
The material contained in the medical and other reports is not contested by the parties.
I am satisfied on the evidence that LN is a person for whom guardianship and administration orders could be made. He requires constant monitoring and supervision because of his undeveloped social skills and his aggressive behaviour. He puts both himself and others at risk by his behaviours. He is incapable of looking after his own health and safety and is in need of oversight care and control in the interests of his own health and safety and for the protection of others.
I am satisfied that the totality of LN's conditions renders him unable to make reasonable judgments about his personal and financial affairs.
The need for orders (evidence and submissions)
When LN came under the protection of the Department, a decision was made that BN would remain his legal guardian. Until LN reaches the age of 18 years, the parental authority remains with BN.
The Department states that the reason LN was eventually placed in accommodation away from the family home was that the relationship with his father, BN, had deteriorated such that BN was either unable or unwilling to care for LN, given his high support needs.
The Department states that the situation has not changed and that, consequently, the making of guardianship and administration orders is a logical transition from LN's childhood to his adulthood.
The Department submits that many difficult decisions need to be made for LN, including his future accommodation, support services, education and training, medical treatment, and an ongoing review about with whom he associates.
LN has received funding from the Commission to assist in his accommodation planning and supporting him with community activities, given he is not currently attending any school.
The Department states as follows:
•It is planned for LN to initially receive one‑to‑one accommodation support and, if progress is made, then to possibly assist him in a group home setting with high supervision. The most appropriate accommodation still needs to be determined and, when made, will need to be reviewed on a regular basis depending on LN's maturity and needs.
•LN has complex medical and allied health needs, most particularly the management of his epilepsy and his behavioural problems.
•There are documented instances by a support agency of LN engaging in at risk sexual conduct, including recently with a stranger. He is vulnerable to exploitation and his association with others needs to monitored.
BN and BEN state that they accept that LN is in need of a guardian but that the guardian should not be in a position to decide whether and where he may travel. They hope to travel with him to Africa and other places (including within Australia) to visit family. They say that a guardian, if given authority over travel, would possibly upset family plans if permission was refused for LN to travel.
The Department states a concern about the treatment of LN's epilepsy if he were to travel to Africa; in particular, any proposal that he may be treated in other than a standard medical way. Both BN and BEN disagree with the Department's concern and, in any case, say that the travel would only be for the purpose of visiting family.
The Public Advocate's representative states that he has had discussions with BN about LN travelling, and it appears there are cultural imperatives influencing the plans to travel. The Department states that it is not its submission that LN never be given the opportunity to travel but, rather, that the decision be made by an independent guardian.
The Public Advocate's representative submits that a plenary guardianship order should be made for LN on the basis that his needs are complex and varied and also, if the need arises, to liaise with overseas authorities if travel is to be considered.
As regards LN's estate, at the time of the hearing, his pension income was under income management through Centrelink. This provides for a saving component to be withheld from LN's payment and for his rent and other bills to be paid directly from his income. The Department states that when LN reaches 18 years of age, the income management scheme becomes voluntary and he will be in position to have it cancelled.
BN states that LN cannot handle money because he does not purchase necessaries and will spend money on his friends.
LN states that he needs to learn how to manage his money but that he is being prevented from doing so by BN. GD, from a support agency assisting LN, states that LN is currently learning how to use small amounts of money.
Who should be appointed guardian and administrator (evidence and submissions)
The Department states that, in the time of working alongside LN and BN, there has been a high level of conflict between them. For the past two years or so, BN has essentially asked the Department to manage the day‑to‑day care needs of LN. The Department states that it has not been able to engage BN in this process and that he has been unable or unwilling to attend meetings to discuss LN's issues. Concerns have also been raised that when LN has visited BN, there has been an inadequate level of supervision, and at times LN has not received his correct medications.
The Department submits that the Public Advocate should be appointed LN's guardian and the Public Trustee as the administrator of his estate.
BN states that he has not received cooperation from the Department and that the Department has failed in its obligations to LN. BN states that everyone has failed LN in this regard, and that is why the parties have come to the Tribunal.
BEN states a concern that the family will be removed from the decision‑making for LN. She says:
… I feel like I ‑ we need a say on his [LN]'s life, not all the time guardian, guardian, because we‑ we suffer with him throughout everything and for somebody to come and say you can't do this, you can't do that, it would affect me personally. (T:53; 03.04.14)
LN states that he does not want his father, BN, or any family member to be his guardian and that he needs a 'new guardian from Africa' (T:17; 03.04.14). LN states that he does not like how he is treated by BN.
There is no opposition to the appointment of the Public Trustee as the administrator of LN's estate.
BN does not oppose the appointment of the Public Advocate as LN's guardian, but submits that the decision about whether LN can travel should not be included in the guardian's authority.
The decision of the Tribunal
LN and his family have suffered a great deal of trauma in their lives as refugees. Since coming to Australia, they have had to adapt to the cultural norms which are different to that of their country of origin.
Superimposed onto this very difficult time of adjustment is the fact that LN has significant disabilities manifesting in behavioural difficulties which put him and others in the community at risk.
I accept that the Department has had to take an increasing role in the care of LN because, for understandable reasons, BN has found caring for him more and more arduous.
It appears that the relationship between LN and BN is fractured, given the pressures the family has had to face including LN's unique needs.
LN is adamant that he does not currently want BN to be in a decision‑making role. BN, it would seem, is trying to establish the boundaries of his parental expectations in a very difficult environment.
Under these circumstances, it is my view that it is in LN's current best interests for his guardian and administrator not to be a family member. LN's needs are complex and there are many institutional obstacles that will need to be overcome to ensure that the transition to adulthood is given the greatest chance of success. The decisions made in the near and intermediate future will have a major impact on how well LN is able to participate in the life of the community.
Given LN's multifaceted needs, I have decided that plenary guardianship and administration orders are presently required so as to enable the full range of personal and financial decisions to be made.
I will therefore appoint the Public Advocate as LN's plenary guardian and the Public Trustee as his plenary administrator. I will authorise the administrator to expend up to a total of $500 per annum on customary gifts on behalf of LN.
The making of a plenary guardianship order necessarily means that the guardian will have the authority to decide whether and to what extent LN is to travel, both within and outside of Australia. This is not what LN's family wanted, but my concern is that the planning for any travel, given LN's complex medical and behavioural issues, will be challenging and beyond what BN and BEN can currently provide.
I have decided to set the review of the orders in two years.
Orders
The Tribunal declares that the represented person:
(a)has attained the age of 17 years but not 18 years; and
(b)when he attains the age of 18 years, will be:
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person;
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
(iv)in need of a guardian,
and the Tribunal orders that:
1.The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia is appointed plenary guardian of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.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.
3.This order is to be reviewed by 3 April 2016.
The Tribunal declares that the represented person:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)is in need of an administrator of his estate,
and the Tribunal orders that:
1.The Public Trustee of 553 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.The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
3.This order is to be reviewed by 3 April 2016.
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, SENIOR MEMBER
0
0
2