MF
[2016] WASAT 46
•21 APRIL 2016
MF [2016] WASAT 46
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 46 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:4659/2015 | ||
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 21/04/16 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Guardianship and Administrative orders made | ||
| B | |||
| PDF Version |
| Parties: | MF |
Catchwords: | Guardianship and administration Capacity Acquired brain injury Deficit in executive functioning Executive functioning concerned with problemsolving, abstract thinking and planning Guardian appointed Guardianship order to operate from when the represented person attained the age of 18 years Administrator appointed Administration order to commence immediately |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 84, s 97(1)(b)(iii) |
Case References: | Nil |
Summary | Applications for guardianship and administration orders were made in respect of MF who was 17 years of age at the time. MF was to attain the age of 18 years in May 2016. CL was MF's guardian under Family Court orders.,The applications were made by a support agency which had a view formed over a period of time that CL was no longer the appropriate carer for MF because she was alleged to have controlled every aspect of his life such that the support agency had been concerned for his mental health.,According to the support agency, MF needed legal support to overcome the restrictions placed on him by CL and to enable him to transition to independent adulthood.,MF had been diagnosed with a number of medical conditions in his young life. A rehabilitation physician had recently assessed MF as having deficits in executive functioning as a consequence of a brain injury but that the extent of those deficits could not yet be fully determined. The physician stated that executive functioning is involved in probelmsolving, abstract thinking and planning.,The Tribunal found that MF's level of cognition was not fundamentally impaired, however, on the evidence there appeared to be a deficit in his executive functioning. This had implications for the way in which MF made his decisions and also compromised his ability to plan for the future and adjust his decisionmaking accordingly.,The Tribunal found that it was in MF's best interests that he had stable and consistent decision making in his life that would adapt to changing circumstances and barriers that would inevitably be put in his way. The Tribunal found that MF could not do this on his own although it was accepted that he was willing and should have the opportunity to have significant input into the decisions that needed to be made for him.,The Tribunal appointed the Public Advocate as limited guardian from when MF attained the age of 18 years, and the Public Trustee as plenary administrator and set the orders for review in 12 months. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MF [2016] WASAT 46 MEMBER : MR J MANSVELD (SENIOR MEMBER) DELIVERED : 21 APRIL 2016 FILE NO/S : GAA 4659 of 2015 BETWEEN : MF
- Represented Person
Catchwords:
Guardianship and administration Capacity Acquired brain injury Deficit in executive functioning Executive functioning concerned with problemsolving, abstract thinking and planning Guardian appointed Guardianship order to operate from when the represented person attained the age of 18 years Administrator appointed Administration order to commence immediately
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 84, s 97(1)(b)(iii)
Result:
Guardianship and Administrative orders made
Summary of Tribunal's decision:
Applications for guardianship and administration orders were made in respect of MF who was 17 years of age at the time. MF was to attain the age of 18 years in May 2016. CL was MF's guardian under Family Court orders.
The applications were made by a support agency which had a view formed over a period of time that CL was no longer the appropriate carer for MF because she was alleged to have controlled every aspect of his life such that the support agency had been concerned for his mental health.
According to the support agency, MF needed legal support to overcome the restrictions placed on him by CL and to enable him to transition to independent adulthood.
MF had been diagnosed with a number of medical conditions in his young life. A rehabilitation physician had recently assessed MF as having deficits in executive functioning as a consequence of a brain injury but that the extent of those deficits could not yet be fully determined. The physician stated that executive functioning is involved in probelmsolving, abstract thinking and planning.
The Tribunal found that MF's level of cognition was not fundamentally impaired, however, on the evidence there appeared to be a deficit in his executive functioning. This had implications for the way in which MF made his decisions and also compromised his ability to plan for the future and adjust his decisionmaking accordingly.
The Tribunal found that it was in MF's best interests that he had stable and consistent decision making in his life that would adapt to changing circumstances and barriers that would inevitably be put in his way. The Tribunal found that MF could not do this on his own although it was accepted that he was willing and should have the opportunity to have significant input into the decisions that needed to be made for him.
The Tribunal appointed the Public Advocate as limited guardian from when MF attained the age of 18 years, and the Public Trustee as plenary administrator and set the orders for review in 12 months.
Category: B
Representation:
Counsel:
Represented Person : Greg Boland
Solicitors:
Represented Person : Legal Aid Commission of Western Australia
Case(s) referred to in decision(s):
Nil
Introduction
1 MF is a young man of 17 years of age having been born on 5 May 1998. MF is subject to orders made by the Family Court of Western Australia in 2008 giving his auntie, CL parental responsibility and requiring MF to live with CL.
2 On 22 October 2015, the agency supporting MF, FSWA, made an application for an administration order under the Guardianship and Administration Act 1990 (WA) (GA Act). On 26 November 2015, FSWA made an application for a guardianship order in respect to MF.
3 Under s43 of the GA Act, the Tribunal is able to make a guardianship order for a person who has attained the age of 17 years, but which will only come into operation on the day on which the person attains the age of 18 years. The Tribunal is able to make an administration order for someone who has not yet attained the age of 18 years (s 64 of the GA Act).
4 In November 2015 the applications were referred to the Public Advocate for investigation pursuant to s 97(1)(b)(iii) of the GA Act. The applications were listed for directions on 7 January 2016 and were subsequently referred to mediation. Mediation took place on 4 February 2016 and 24 March 2016. When the applications were made and at the time of the directions hearing on 7 January 2016, MF was living with CL. However, since then things have changed quite dramatically.
5 On 22 March 2016, the Public Advocate filed with the Tribunal an email of the same date sent to FSWA by the coordinator of the holiday camp for which MF was a participant. As described by the Public Advocate, the circumstances were that on 20 March 2016 MF was at his respite carers' home and decided he wanted to leave that accommodation and also not return to the home of CL.
6 The Public Advocate reports that MF contacted FSWA and in the interim FSWA, the Local Area Coordinator of the Disability Service Commission, and the holiday coordinator assisted him to access alternative accommodation. The Public Advocate further reports that CL advised FSWA that she did not want MF to return to her home.
7 By the time of the second mediation on 24 March 2016 and the final hearing on 11 April 2016, MF was living in temporary accommodation with a staff member of FSWA and waiting for more permanent accommodation which had been arranged with a nominated host family.
8 In attendance at the hearing on 11 April 2016 were MF represented by Legal Aid WA (counsel), CL, representatives from FSWA (FSWA), DT the Local Area Coordinator of the Disability Services Commission (LAC) and a representative from the Public Advocate (Public Advocate). Dr T, Rehabilitation Physician, attended to give expert evidence. The decision was reserved.
The relevant legislation
9 The relevant legislation is the GA Act.
10 The primary concern of the Tribunal is the best interests of MF: s 4(2) of the GA Act.
11 MF is presumed to be capable of looking after his own health and safety, making reasonable judgements in respect of matters relating to his person, managing his own affairs, and making reasonable judgements in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
12 Under s 43 of the GA Act the Tribunal cannot consider appointing a guardian for MF unless it is satisfied on the evidence that he is incapable of looking after his own health and safety, is unable to make reasonable judgements about matters relating to his person, or is in need of oversight care or control in the interests of his own health and safety or for the protection of others.
13 Under s 64 of the GA Act the Tribunal cannot consider appointing an administrator of the estate of MF unless it is satisfied on the evidence that by reason of a mental disability, MF is unable to make reasonable judgements in respect of matters relating to all or any part of his estate.
14 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.
15 If a finding of incapacity is made in respect to MF, the Tribunal must further determine whether MF is in need of guardianship and administration orders. If the needs of MF can be met in a manner less restrictive of his freedom of decision and action, then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
16 If the Tribunal decides that MF is in need of guardianship and administration orders, it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be, and what review date should be set given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
17 As to the authority given to a guardian, the GA Act states that if a limited order is sufficient to meet the needs of MF, then a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on MF: s 4(5) and s 4(6) of the GA Act.
18 In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of MF as expressed, in whatever manner, at the time, or as gathered from MF's previous actions: s 4(6) of the GA Act.
The applications
19 The basis for the applications made by FSWA was a view formed over a period of time that CL is no longer the appropriate carer for MF because she is alleged to have controlled every aspect of MF's life, such that FSWA has been concerned for his mental health. FSWA alleges that MF is over medicated and that CL has been preventing him from asserting any degree of independence as he approaches adulthood.
20 According to FSWA, MF needs 'legal support' to overcome the restrictions placed on him by CL and to enable him to transition to independent adulthood. By making the applications, FSWA are also concerned to prevent CL from obtaining adult guardianship of MF when he attains 18 years of age.
21 FSWA submits that MF would benefit from an 'advocate/administrator' with whom he would communicate on a regular basis, be given a money allowance and supported in managing his own spending.
22 The initial position of FSWA as described in page 5 of the application was:
[MF] is extremely bright and all parties involved except [CL] feel he is more than capable of making his own decisions. As he has been prevented from ever making his own decisions, i.e.: What clothes to wear, what food to eat, where to spend time during activities, [MF] can become quite anxious if given choices and will state that he is worried that [CL] will find out and that he will get into trouble. … If [MF] is given the freedom of choice, he always acts responsibly and thinks through his options carefully. He is also comfortable in asking people he feels comfortable for their advice and likes to run things by others. Everyone involved in [MF]'s support feels he is very able, to live independently, manage his own finances without legal Guardianship, gain a driver's licence, hold down employment, study at a higher level, build intimate relationships, build social relationships and lead a fulfilling life.
23 In oral evidence FSWA was more equivocal about the ability of FM to make his own personal and financial decisions at this time.
24 FSWA continues to hold a belief that MF has the skills to live independently but that he has not yet reached the stage where he can do so. Currently MF, except for short periods, has support and supervision seven days a week. FSWA support MF in his decision to no longer reside with CL. FSWA states that MF has behaved more assertively since leaving CL's home and has sought support and kept to his medical appointments. MF appears to be willing to engage with others to assist him. Despite this, FSWA is concerned that MF has a tendency to be impulsive in his decisionmaking and that recently a lack of insight has been observed. FSWA questions whether MF has reached a level of selfawareness consistent with independent decisionmaking.
25 As regards the management of MF's pension income, FSWA believes that MF needs to develop budgeting skills and requires guidance on his spending habits. FSWA feels keenly the need to provide the appropriate level of support for MF without becoming a de facto decisionmaker.
CL - current guardian
26 CL is concerned that, in her view, MF can be impulsive and very definite in his decisionmaking, to his detriment. She believes he is vulnerable in regard to personal decisionmaking and money management. She says MF's recent decision to leave school is an example of an impulsive and poor decision.
27 CL states that MF continues to need support and that currently FSWA arranges his appointments and assists with budgeting. She says she is worried if the support given to MF by FSWA should cease. CL states that MF is vulnerable to the influence of others and is very impressionable. CL does not propose to be appointed as guardian or administrator.
LAC (Disability Services Commission)
28 The LAC states that MF is supported by the Disability Services Commission through the funding of FSWA. The LAC shares the concerns of others about MF's current decisionmaking and believes he is in need of overarching support to reach a level of independent living. The LAC currently supports the continuation of FSWA as the funded service provider for MF.
29 The LAC submits that significant areas of decision-making remain unresolved, these being the question of whether MF remains at school (which the LAC supports), his immediate and longer term accommodation, and in her view the need for a full medical review.
MF
30 MF states that he is capable of making his own decisions including where he should live. MF states that he left his previous accommodation (including the respite accommodation) because the arguments became too much for him. He says things are better now and that he is enjoying his life.
31 MF states that he is prepared to live with the host family that has been nominated and eventually wants to have a place of his own. He expects that it will take about nine months or so before he can live independently and would prefer a private shared rental. MF states that if he had the savings now he would consider a private rental but says that he would still require the support of FSWA.
32 MF questions whether he has delusional thoughts (see the evidence of Dr T below). His belief that he is a 'werewolf' is, he says, not a delusion but something like a religion. Despite his views on these thoughts MF states that he is compliant with the medication prescribed for him to treat the delusions.
33 MF states that he recently decided to leave school for two reasons. Firstly, the workload in the English subject became too much and, secondly, because of an incident in which he accidentally injured a teacher and as a consequence he was taunted and insulted. Although he is prepared to return to school, MF states that if the incident with the teacher was raised again, he would reconsider his decision.
34 MF states that over time he wishes to reconnect with his maternal grandfather, brother and other siblings.
35 As regards his financial affairs, MF states that he needs help with budgeting so that he stays within the income he receives and can pay his bills. MF states that he is in receipt of a disability support pension and that with his last payment he spent money on a suit, haircut, shoes and other personal items. He will be expected to pay board to the nominated host family.
36 When an administration order was explained to MF, he stated that he would support the appointment of an administrator so that he could learn to manage his money appropriately.
37 MF does not believe he is in need of a guardian.
The Public Advocate
38 The Public Advocate states that currently MF is engaged in a significant period of transition both in respect to his accommodation and general personal situation. He is moving from a long term accommodation arrangement with his legal guardian (CL) who appears to have been heavily involved in all areas of his decisionmaking. The Public Advocate states that the current situation arose out of a crisis from MF deciding not to return to his respite accommodation or the accommodation with all CL.
39 The Public Advocate is of the view that MF has not yet fully developed his independent living skills and would be at risk living in the community on his own unless it occurred in a gradual way building up his experience, trialling options and making mistakes from which he could learn. The Public Advocate likens this situation to one of any young person who has a trial process of independent living whilst having a parental or similar backup.
40 The Public Advocate reports from a conversation with CL that MF has never had a full review of his medical issues and has never had to take responsibility for organising medical appointments. The Public Advocate is concerned about the impact MS's delusional thoughts may have on his decisionmaking.
41 As regards MF's education, the Public Advocate states that MF has agreed to discuss his issues with a school counsellor and will return to school for the next term. The Public Advocate states that MF appears to have unrealistic expectations of his future education.
42 The Public Advocate states that MF has had no experience in managing his own funds and has a tendency to impulsive spending. He has no particular budgeting skills and the Public Advocate submits that MF requires some oversight until he better develops his skills in moneymanagement.
43 The Public Advocate submits that MF has not developed sufficient skills at this time in personal and financial decisionmaking and that some of the decisions, especially around his medical needs, are complex. The Public Advocate submits that consideration should be given to making shortterm guardianship and administration orders to assist MF.
Medical and allied health reports on the question of MF's capacity
44 The Tribunal has been provided with a number of reports concerning the diagnoses made in respect to MF from about 2004 and the effects of those diagnoses on his functioning. Dr T, a rehabilitation physician in the area of acquired brain injury, gave oral evidence at the hearing.
45 The earliest diagnosis is that of Attention Deficit Hyperactivity Disorder made in 2004 when MF was about six years of age. MF was not considered to meet the criteria for a diagnosis of autism but he did meet the criteria for a diagnosis of Pervasive Developmental Disorder (not otherwise specified).
46 In March 2009 (when MF was about 11 years of age) a psychologist assessed him as having a general cognitive ability in the average range, however, he was demonstrating at that time sufficient behavioural issues for a diagnosis of Asperger's syndrome to be considered.
47 In May 2015 it was noted by a medical practitioner at Princess Margaret Hospital that MF was reported to have acquired brain injury and questioned whether this was a result of Foetal Alcohol Dissipation.
48 In her oral evidence Dr T states that she has seen MF twice, once in August 2015 and in November 2015. She has also had recent phone contact with MF. Dr T states that she attended to MF upon referral from Princess Margaret Hospital (the transition from children's health services to adult health services) and on a reported past history of brain injury, autism spectrum disorder, learning disability, behavioural issues with aggression.
49 Dr T states that MF has not undergone formal neuropsychological testing and that she has formed an opinion based on her clinical observations.
50 Dr T assesses MF as having deficits in executive functioning but that the extent of those deficits cannot yet be fully determined. Dr T states that executive functioning is involved in problemsolving, abstract thinking and planning. It is possible, according to Dr T, that a person may have relatively intact cognition (memory, attention and concentration) but have deficits in the ability to problem solve and plan and be impulsive in decision-making because of executive functioning problems.
51 Dr T is of the view that a neuropsychological assessment is indicated in MF's case. Dr T states that she has consulted with a psychiatrist on the issue of MF's medication particularly in light of concerns around recent psychotic symptoms (delusional thoughts).
The decision of the Tribunal
52 It is common ground that MF had a difficult early life. MF eventually came into the care of CL who obtained formal parenting orders in 2008.
53 From early in his life MF has been diagnosed with conditions that are attendant with behavioural difficulties and this no doubt impacted on his development and presented difficulties in his upbringing.
54 It is fair to say by way of general comment, that the transition from childhood to adulthood through adolescence can be a fractious time often including oppositional behaviour to a parental figure. There is no magic formula as to the way a parent can best deal with this period of time which can be made significantly more difficult if the child has a disability. MF is in this transition period. The question for the Tribunal is whether MF is facing this transition in a typical set of circumstances or whether because of an impairment the problems he faces are compounded.
55 The evidence shows that there are ambivalent attitudes and views concerning the question of whether MF is able, even at 17 years of age, to plan for his future and make his own decisions. It is accepted, I think, that MF's level of cognition is not fundamentally impaired. However, on the evidence, there appears to be a deficit in his executive functioning. This has implications for the way in which MF makes his decisions and compromises his ability to plan for the future and adjust his decisionmaking accordingly.
56 The evidence before the Tribunal is that MF can be impulsive in his decisionmaking and whilst it can be argued that this is not atypical for a 17yearold, the assessment of Dr T is that MF's abilities are more likely than not compromised by an organic condition, namely an acquired brain injury.
57 Dr T states that she has come to her view that MF has deficits in his executive functioning on her clinical observations and not formal neuropsychological testing, however, her assessment is not inconsistent with the other assessments available to the Tribunal and is also consistent with some of the decisions recently made by MF, in particular, the decision to leave home and the decision to leave school. It seems to me that these decisions were made by MF in an immediate way, not fully appreciating the consequences that would flow from them.
58 There is no recent medical or psychological evidence that presents a contrary view to that of Dr T and I accept her evidence. I also accept her submission that MF would benefit from neuropsychological testing that would give a nuanced assessment of his mental strengths and weaknesses and assist in the type of support he is offered.
59 I am satisfied on the evidence that MF is compromised in his decisionmaking by the existence of a deficit in his executive functioning, such that he is prone to put himself at risk when significant decisions are made. Were it not for the supports he has around him when he decided not to return home for example, I do not believe that he would have had the capacity to find safe and secure alternative accommodation.
60 I am satisfied that currently MF is incapable of looking after his own health and safety and that he is in need of oversight and care. I am also satisfied that MF is unable to make reasonable judgements about significant financial and personal matters. Because of the global reach of executive functioning, I am satisfied that the deficits currently attributed to MF have an impact on all major decisions with which he is faced, but particularly those relating to his accommodation needs, medical treatment, services to which he should have access and matters to do with his future education and work. I am satisfied that the impairment in MF's executive functioning also impacts on his current ability to manage his income.
61 The current concerns regarding his delusional thoughts (which MF does not accept), is an additional factor that potentially impacts on the way he perceives his circumstances.
62 What is in MF's best interests is stable and consistent decision making in his life that will adapt to changing circumstances and barriers that will inevitably be put in his way. This, in my view, he cannot do on his own although I accept that he is willing and should have the opportunity to have significant input into the decisions that need to be made for him.
63 I am heartened by the fact that MF is presently accepting of the support that is available to him, however, it is critical that someone is present to regularly review the quality and extent of that support but also to ensure that the support is ongoing. This can only be effectively done by an appointed guardian with the relevant authority.
64 I agree with the Public Advocate that any orders I make should not be for a lengthy period given that MF is maturing into adulthood, and with support and his positive attitude, I am hopeful that he will be able to learn from his inevitable mistakes such that orders will become less relevant as time goes by. However, in the current situation, I am satisfied that it is in MF's best interests that guardianship and administration orders are made and reviewed in 12 months. The administration order will have effect immediately and the guardianship order will have effect when MF attains the age of 18 on 5 May 2016.
Orders
Administration
The Tribunal declares that [MF]:
(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 [MF] with all the powers and duties conferred by the Act.
2. The administrator is authorised to expend up to a total amount of $250.00 per annum on gifts on behalf of the [MF].
3. The administrator is directed to liaise with the [MF] and his support agency, currently [FSWA], with a view to developing a plan by which the [MF] can be given increasing control of his income whilst under the protection of the administration order.
4. This order is to be reviewed by 4 May 2017.
Guardianship
The Tribunal declares that [MF]:
(a) has attained the age of 17 years but not 18 years; and
(b) will, when he attains the age of 18 years, be:
(ii) incapable of looking after his own health and safety;
(iii) unable to make reasonable judgements 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; and
(a) will, when he attains the age of 18 years, be in need of a guardian;
1. The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a) To decide where [MF] is to live, whether permanently or temporarily;
(b) To decide with whom [MF] is to live;
(c) To decide whether [MF] should work and, if so, the nature or type of work, for whom [MF] is to work and related matters;
(d) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for [MF];
(e) To determine the services to which [MF] should have access; and
(f) To decide what education and training [MF] is to receive.
2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of [MF] to an officer or employee employed in the Office of the Public Advocate.
3. This order is to be reviewed by 4 May 2017.
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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