MD and BD - [2009] WASAT 78

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MD and BD [2009] WASAT 78

MEMBER: MS D DEAN (MEMBER)
MS S GILLETT (SENIOR SESSIONAL MEMBER)

HEARD: 3 OCTOBER 2008, 14 NOVEMBER 2008 AND 14 JANUARY 2009

DELIVERED : 27 APRIL 2009

FILE NO/S: GAA 1951 of 2008

BETWEEN: MD
Applicant
AND
BD
Represented person

Catchwords:

Application for guardianship and administration - Capacity to make reasonable judgments - Need for a guardian - Need for an administrator

Legislation:

Guardianship and Administration Act 1990(WA), s 4(2), s 43, s 64, s 64(1)
State Administrative Tribunal Act 2004 (WA), s 78

Result:

The application for guardianship is dismissed
The application for administration is dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented person : Self-represented

Solicitors:

Applicant: Self-represented
Represented person : Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications for guardianship and administration were made to the Tribunal by the brother of BD, a middle aged man who has an intellectual disability. BD lives in community‑based accommodation with 24 hour care. On the advice of the support agency, the brother sought the appointment of a guardian or an administrator with the authority to enter into employment contracts with BD's carers as the existing care arrangements could not be maintained due to changes in industrial relations requirements. Evidence was provided to the Tribunal by the brother that he had signed the employment contracts with the carers and that the new carer arrangements were in place.
The Tribunal found that BD was a person for whom both a guardianship and an administration order could be made. The Tribunal was satisfied, on the evidence before it, that the care arrangements were operating in BD's best interests, leaving no current need for a formally appointed guardian. Similarly, the Tribunal found that the financial arrangements currently in place were working in BD's best interests and that there was no need for a formally appointed administrator.
The Tribunal dismissed both the applications on the basis that there was no current need for the appointment of either a guardian or an administrator.

Background

BD is a middle aged man with an intellectual disability. He lives in his own home supported by 24 hour care. The Disability Services Commission (DSC) provides funding for BD's carers and these funds are administered by a support agency that provides accommodation and carer support.
BD has an involved and supportive family. BD's brother MD applied to the Tribunal for guardianship and administration orders proposing himself in both roles. The applications were precipitated by the support agency's advice to BD's family that changes in industrial relations requirements meant that existing care arrangements could not be maintained unless overnight carers were employed under 'private and domestic arrangements'. The support agency advised that would require the person requiring the care or someone acting on their behalf, to sign individual employment contracts with each carer.
The applications were heard over three hearings and adjourned for further information. The presiding member for the first two hearings was Member Dean. The third and final hearing was presided over by Senior Sessional Member Gillett.
Oral reasons for the decision of the Tribunal in respect of both applications were delivered at the conclusion of the third hearing on 14 January 2009. These written reasons are provided at the request of the support agency pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Hearings

In addition to the written application, the following written submissions were provided to the Tribunal prior to the first hearing on 3 October 2008:
•Dr R, in a report dated 19 July 2008, said that she has known BD for a year. He has a diagnosis of Down's syndrome and in her opinion he is incapable of making reasonable judgments about any major aspect of his life.
•Ms P, the coordinator of the support agency that provides social and carer support to BD, in a submission, undated but provided with the application dated 20 August 2008, provided psycho-social information in relation to BD. She said BD's 'current support arrangements (a co‑residency support arrangement), is at risk of not being able to continue due to the Federal industrial legislation changes over the last two years'. She outlined the reasons why she believes that there is the need for a guardian and/or administrator to take on the role of 'employer' in relation to the support services currently received and required by BD. Ms P said that BD's intellectual capacity is such that he 'finds it difficult to understand complex concepts and conversations'. He 'requires support in all areas of his life where decisions relating to financial management (bank, pension etc), lifestyle, medical care and day to day living'. BD 'is vulnerable in many ways due to his trusting personality and the impact of his intellectual disability and level of understanding some concepts. [BD] is at risk financially physically and financially [sic] without support in these areas'.
•In a report dated 17 September 2008, Ms P said that BD has a cognitive disability, is 'able to think and act on daily decisions/budgets' but needs 'support with bigger decisions'.
The hearing on 3 October 2008 was attended by:
•MD, the applicant and brother of BD;
•KD, mother of BD; and
•BD, proposed represented person.
MD outlined the reasons for his applications to the Tribunal. He said that changes to the Federal industrial laws had resulted in an increase in the payment to a carer in a sleep‑over role to care for BD. He said that BD's funding package was not sufficient to accommodate such an increase in payment. MD said he had been advised by the support agency, that had previously been the employer of the carers, that in order to reduce the hourly rate payable to the overnight carer, he should take on the role of employer and sign the employment contract with the carer. He was advised by the support agency that to do this he should apply to the Tribunal to be appointed as either a guardian or an administrator. MD said that he had signed the contracts with the carers some time ago to prevent the loss of overnight care because he was concerned that this would compromise BD's safety and wellbeing.
The Tribunal adjourned the hearing and referred the matter to the Office of the Public Advocate (OPA) for investigation as to whether there was a need for a formal appointment for the purpose of managing BD's funding from DSC and the employment of carers for BD. Additional information was also sought from DSC, the agency funding both the support agency and providing the accommodation support funding for BD; and from the support agency as to the possible legal implications for an individual signing the proposed employment contracts.
The following documents were received by the Tribunal prior to the second hearing on 14 November 2008:
•A lengthy submission dated 24 October 2008 from the DSC outlining DSC policies and rules in relation to funding that is overseen by DSC.
•A report from the Public Advocate dated 12 November 2008 in which she outlines the different types of models of management of accommodation and support services provided by the support agency. She said that the support agency currently administers funding provided by DSC for accommodation and support services to clients under disability. The report said that proposed Federal government industrial relations changes will affect some types of support arrangements requiring overnight care because overnight hourly carer rates will increase. Because the allocated funding will not increase, this will result in a need to decrease the level of care each client receives. Legal advice provided to the support agency is that 'if a person with authority takes over the role of recruiter and employer of funding and employs carers under a "private and domestic arrangement" which falls outside Federal industrial relations laws and within state based case law, current wages could be maintained'. The report also advised that the proposed role of recruiter and employer does not appear to fit within the authority of a guardian.
The hearing reconvened on 14 November 2008 and was attended by:
•MD;
•KD;
•BD;
•a representative of OPA;
•DG, representing the support agency; and
•SC, representing DSC.
DG explained that changes to the Federal industrial laws made it impossible for his agency to continue to provide the same level of service for clients needing 24 hour care. DG said that this was due to the new requirement that carers be paid a minimum hourly rate and consequently the previous arrangement, whereby carers working overnight were paid a standby rate for the hours that they were on call but asleep, could no longer be used.He said that as BD's family want to maintain the existing care arrangements and as BD's funding package from DSC is not sufficient to accommodate the increased amount payable to overnight carers, the support agency had sought legal advice as to alternative ways of maintaining the existing service for BD. Based on the legal advice provided to the service, DG said BD's family had been advised that a family member, if appointed guardian or administrator, could take on the role of employer and sign individual employment contracts with carers on BD's behalf.
DG said that the administrator or guardian would recruit and employ the carers. His agency would be responsible for the administrative component and continue to administer the funding allocated to BD. He said the legal advice provided to the agency was that such contracts are 'private and domestic arrangements' and as such industrial relations requirements do not apply.
SC, representing DSC, said that the Commission encouraged support agencies to be as flexible as possible in relation to how funding is utilised in order to best meet the needs of the individual who has been allocated accommodation support funding. She said DSC is supportive of the arrangements that the support agency is endeavouring to put in place in respect to the employment of carers. SC was unable to clarify how other service providers funded by DSC are managing the legislative changes and the impact on payment of overnight carers.
The hearing was adjourned for the Tribunal to seek further clarification of the issues. The following written submissions were received by the Tribunal prior to the third and final hearing on 14 January 2009.
•A copy of legal advice dated 6 February 2008 provided to the support agency in relation to the changes in Federal government industrial relations arrangements. The advice proposes that a formally appointed administrator could, in effect, circumvent the proposed industrial changes by taking on the role of employer of the carers of the person with a disability. The advice stresses that the proposed administrator 'should consider their position carefully and possibly be told in each case that they may like to seek independent advice on their exposure'. The letter further notes that there are carers being employed directly by family members on behalf of the person requiring support and that this 'is currently being done on a fairly informal basis'.
•On 27 November 2008, DSC provided information in relation to the Shared Management Model (SMM) of their service delivery. The submission did not provide an explanation of why there is, or may be a need, for a guardian or an administrator to be appointed to sign employment contracts with carers.
•In a letter received by the Tribunal on 8 December 2008 in response to a request by the Tribunal for further information, DG, the representative of the carer support service explained that he was unable to provide any further clarifying information in relation to the need for the appointment of a guardian or an administrator to sign employment contracts with carers.
•In response to a further request from the Tribunal, DSC advised by letter dated 11 December 2008 that no further information was available from DSC and that 'the Commission does not monitor individual employment arrangements agencies make with staff'.
The hearing on 14 January 2009 was attended by:
•MD; and
•DG.
The Tribunal set out the documentation received since the previous hearing and the further requests made by the Tribunal to the support agency and to DSC which did not result in any further information as to the need for a formal authority. No additional information was provided and no submissions were made by parties at the third hearing.

Legislation

The principles to be observed by the Tribunal when making determinations in relation to guardianship and administration applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (GA Act).
These principles are:
(2)(a)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.
(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.
(c)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.
(d)A plenary guardian shall not be appointed under section 43(1) 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.
(e)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.
(f)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.
Section 43 of the GA Act provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
(1)…
(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,
the Tribunal may by order declare the person to be in need of a guardian …
Section 64 of the GA Act provides for the appointment of an administrator. Section 64(1) states:
(1)Subject to [s] 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under [s] 40 -
(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 …
Section 78 of the SAT Act provides for the provision of written reasons for a decision on request by a party.

Findings and reasons

Capacity

In this case, two applications for orders were made, one for guardianship and one for administration. Although there are slightly different requirements to be satisfied in making these orders, both depend on evidence in relation to the person's capacity to make reasonable judgments in relation to particular matters.
The Tribunal had adequate medical evidence, as well as evidence provided at the hearings, to make the following findings in this regard:
•BD is cognitively impaired and is incapable of looking after his own health and safety. He is dependent on others for his care and welfare and is therefore a person for whom a guardianship order can be made.
•BD is unable, by reason of a mental disability, to make reasonable judgements in respect of matters relating to his estate and is therefore a person for whom an administration order can be made.

Wishes and best interests of BD

Where possible the Tribunal takes into account the wishes of the proposed represented person when making a decision in relation to applications such as these. While it was not possible for the Tribunal to ascertain the wishes of BD because of the nature of his disability, the Tribunal was satisfied that, if able to express a view, BD would likely want his close and supportive family to be involved in making decisions on his behalf. The Tribunal was satisfied on the evidence before it that BD's family are allowing him as much autonomy as is appropriate while making decisions on his behalf and in his best interests.

Need for a guardian and or an administrator

As set out in the GA Act, the appointment of a guardian or an administrator requires the Tribunal to find there is a need for an order. That entails consideration of whether the needs of the person can be met by any means less restrictive of the person's freedom of decision and action.
The evidence before the Tribunal is that family members in similar circumstances often informally undertake the role of employer of carers for persons who are cognitively impaired and who do not have legal capacity. Reference was made to the existence of such informal arrangements by the Public Advocate in her report and in the legal advice provided to the support agency. The DSC, as the funding agency, has provided clear advice that it has no concerns with this kind of arrangement.
The Tribunal invited the support agency to provide further submissions as to the need for a formal authority but no further information was provided. MD said that he had signed the employment contract for BD's carers and this arrangement appears, from the evidence before the Tribunal, to be working in his best interests. This arrangement can therefore be considered a less restrictive alternative to the appointment of an administrator or guardian for this purpose.
The Tribunal had before it evidence that BD's finances are being managed by his family, namely his brother MD, the applicant in this matter. The Tribunal is satisfied in this case that the informal arrangements with regard to BD's finances appear to be operating in his best interests and can therefore be considered an appropriate less restrictive alternative to the formal appointment of an administrator.
Similarly, BD's family are making guardianship-type decisions on his behalf and the Tribunal is satisfied that these decisions are being made in his best interests.
In the Tribunal's view, if it was established that BD did need someone with formal authority to sign employment contracts with the carers; this function would be more appropriately performed by an administrator than a guardian.

Orders

The Tribunal made the following orders:
1.The application for administration is dismissed.
2.The application for guardianship is dismissed.

I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS S GILLETT, SENIOR SESSIONAL MEMBER