MC and KN

[2013] WASAT 8

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   MC and KN [2013] WASAT 8

MEMBER:   MS J STANTON (SENIOR SESSIONAL MEMBER)

HEARD:   11 OCTOBER 2012

DELIVERED          :   17 JANUARY 2013

FILE NO/S:   GAA 2510 of 2012

GAA 2511 of 2012

BETWEEN:   MC

Applicant

JLB
Substitute applicant

AND

KN
Represented person

Catchwords:

Guardianship and administration - Capacity to make decisions - Whether need for guardian and administrator - Impact of inheritance on represented person - Least restrictive alternative - Reduction of intensive service - Protection of funds

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1), s 43(1)(b), s 64(1), s 64(1)(a), Div 3, Pt 5

Result:

Limited guardian appointed
Plenary administrator appointed

Summary of Tribunal's decision:

The applicant is a case worker at a government mental health service.  The application was brought seeking a guardian and an administrator for KN who was due to receive an inheritance from her late husband's estate.  In support of the application, reports were received from Dr S and Ms LB.  KN has a long history of mental illness with high levels of anxiety, impaired perception and judgment, and erratic compliance with treatment.  She is able to manage some decisions but suffers serious anxiety when major decisions are required, both in relation to managing her finances and in health care.  Her treating doctor noted that she required intensive support from the Community Rehabilitation and Support Program to remain in the community.  She has been increasingly anxious since being notified about the inheritance.  KN lives with her son who also has a psychiatric disability, and her contact with her daughter is limited.

The Tribunal accepted the medical and allied health reports and appointed the Public Advocate to consent to medical treatment.  The Public Trustee was appointed plenary administrator with the proviso that KN should continue to receive and manage her pension and that the administrative arrangements should be worked out with the Public Trustee, taking into account her changed financial circumstances and her wishes in relation to payment of bills.  Family members and the applicant supported the decisions.

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Substitute applicant       :     Self-represented

Represented person       :     N/A

Solicitors:

Applicant:     N/A

Substitute applicant       :     N/A

Represented person       :     N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. KN is a 71‑year‑old woman who lives with her son in her own home.  She receives intensive support from a mental health service and has had a long history of severe anxiety and depression.  The application was made because KN was due to receive an inheritance from the will of her late husband and this was causing her significant anxiety both in relation to the management of her finances and also in relation to her health, where her level of anxiety was impacting on her ability to make decisions in her best interests.

2. The Tribunal had received correspondence from the Public Trustee dated 2August 2012 indicating that KN was the sole beneficiary of her late husband's estate and that they would not make a distribution of the estate funds until notified by KN.

3. These reasons were sought by the Public Trustee and reflect the brief oral reasons given at the end of the hearing on 11October 2012.

Capacity ­ s 43(1)(b) and s 64(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act)

1. Medical reports were received from Dr S and Ms LB.

2. Dr S, in her report of 14June 2012, indicated that KN has a long standing schizoaffective disorder, and suffers severe anxiety and is easily overwhelmed.  She tends to avoid completing tasks and has poor coping skills.  Dr S was of the view that KN is not capable of managing living skills, health care decisions or financial matters without support.

3. Ms LB, KN's case manager and the substitute applicant, noted, in her report of 9June 2012, that KN suffered prominent anxiety with limited ability to cope, that she became easily overwhelmed, and that while she could manage day‑to‑day budgeting, she requires assistance with larger amounts of money and with more complex decisions.  Ms LB noted that KN lives with her son who also has a diagnosed mental illness and that she has limited contact with her daughter.  Ms LB was of the opinion that KN needed a guardian for medical treatment and accommodation decisions, should she become incapacitated.

4. The Tribunal formed the view on the evidence presented, including the views expressed by KN and her two children at the hearing, that KN was a person for whom orders to appoint a guardian and an administrator could be made if the need could be demonstrated.

The application for guardianship

1. The applicant sought orders for the appointment of a guardian to make treatment decisions for the represented person and to decide where KN should live, should she become more incapacitated than she was at present.  While KN's capacity to make lifestyle decisions was compromised by her anxiety, no evidence was presented that a move in accommodation was being considered, as she was managing in her own home.  It was noted that KN's compliance with treatment was erratic, and that she became overwhelmed when faced with decision‑making and lacked insight into her medical needs.  She had been receiving intensive community support through her local mental health clinic but this support was not available long term.  Her son and daughter supported the appointment of an independent decision‑maker, and the Public Advocate was appointed guardian to make treatment decisions as no other suitable person was available.

The application for administration

1. The applicant sought the appointment of an administrator because KN had inherited the sum of approximately $306,000 from her late husband's estate, and these funds had not been released by the Public Trustee as executor of the estate and they were waiting instruction from KN prior to distribution of the funds.

2. Evidence was provided by the applicant that KN became extremely anxious about decisions of any complexity, and the inheritance, and its possible impact on her pension, has impacted on her illness and increased her anxiety.  In addition, KN has found it difficult to cope with maintenance and household tasks and to make decisions of a financial nature.  KN is easily overwhelmed and as her anxiety increases, decision‑making becomes more difficult.  The applicant noted that KN was able to look after her day‑to‑day needs and pay for utilities, day care and shopping, and that she and her son managed reasonably well in these areas.  Her son, because of his own mental health issues, was not able to take on the role of administrator, and the relationship between KN and her daughter did not support the appointment of her daughter in the role of administrator.  The applicant was of the view that KN should continue to have the opportunity to be as independent as possible in the day‑to‑day operation of her finances.  Towards the end of the hearing, KN raised the possibility of the Public Trustee paying her utility bills, and Ms LB indicated she could assist her to negotiate with the Public Trustee to work out how much involvement she should have in paying bills.

3. In discussion about whether a provision should be made for gifting, KN and her son said that gifting was minimal and usually around $50 for birthdays.  An amount of up to $500 per annum was allowed, as this seemed to be in accord with current practice.

Statutory framework and issues to be determined

1. Section 43(1) of the GA Act provides that the Tribunal may appoint a guardian for a person if it is satisfied that the person concerned:

   …

   (a)has attained the age of 18 years;

   (b)is -

   (i)incapable of looking after his own health and safety;

   (ii)unable to make reasonable judgments in respect of matters relating to his person; or

   (iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;

   and

   (c)is in need of a guardian,

   …

2. Section 64(1) of the GA Act provides that an administration order can be made in respect of a person if the Tribunal is satisfied that the person:

   …

   (a)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; and

   (b)is in need of an administrator of his estate,

   …

3. A 'mental disability' is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.

4. Section 4 of the GA Act sets out the principles that must be observed by the Tribunal when dealing with proceedings under the GA Act. In summary, these principles are:

   …

   (2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.

   (3)Every person shall be presumed to be capable of -

   (a)looking after his own health and safety;

   (b)making reasonable judgments in respect of matters relating to his person;

   (c)managing his own affairs; and

   (d)making reasonable judgments in respect of matters relating to his estate,

   until the contrary is proved to the satisfaction of the State Administrative Tribunal.

   (4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.

   (5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.

   (6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.

   (7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.

5. The issues for the Tribunal to determine in the proceedings are whether, having regard to the above statements of general principle, the requirements for the making of a guardianship or administration order are made out and if they are, who should be appointed as guardian or administrator and with what functions and powers.

Conclusion

1. The Tribunal, on the capacity evidence presented, accepted that KN is a person for whom guardianship and administration orders could be made and, further, that there was a need for orders to be made in respect to treatment decisions and for the management of her finances.  In relation to KN's finances, the Tribunal noted her capacity to make day‑to‑day financial decisions and, therefore, in seeking the least restrictive option, directed the Public Trustee, in its role as administrator, to ensure that KN had sufficient funds allocated to her to meet these expenses and continue to pay household bills herself as appropriate.  Orders were made for a period of two years on the basis that once the inheritance was received and investment arrangements made, there may be a less restrictive option available for KN.

Orders

Guardianship

On an application for the appointment of a guardian for the represented person, KN, heard before Senior Sessional Member J Stanton on 11 October 2012, it is ordered that:

1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited guardian of the represented person with the following function:

(a)Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person.

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 11 October 2014.

Administration

On an application for the appointment of an administrator for the represented person, KN, heard before Senior Sessional Member J Stanton on 11 October 2012, it is ordered 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.The Public Trustee is directed to ensure that the represented person is allocated sufficient funds to cover day‑to‑day expenses including payment of carers, meals on wheels and utilities as appropriate.

4.This order is to be reviewed by 11 October 2014.

I certify that this and the preceding [17] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS J STANTON, SENIOR SESSIONAL MEMBER