MR N and MRS N
[2006] WASAT 267
•1 SEPTEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MR N and MRS N [2006] WASAT 267
MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MS J TOOHEY (SENIOR MEMBER)
MR S JONGENELIS (SENIOR SESSIONAL MEMBER)
HEARD: 27 JUNE 2006
DELIVERED : 1 SEPTEMBER 2006
FILE NO/S: GAA 980 of 2006
GAA 981 of 2006
BETWEEN: MR N
Applicant
AND
MRS N
Represented person
Catchwords:
Review Section 17A Guardianship order Administration order Capacity Need Suitability for appointment
Legislation:
Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 17A, s 43(1), s 43(1)(b), s 43(1)(b)(iii), s 43(1)(c), s 44(1), s 44(2), s 44(5), s 64, s 64(a), s 64(1), s 64(1)(a), s 64(1)(b), s 64(2), s 68(1), s 68(1)(c), s 68(1)(d), s 68(3), s 84
Mental Health Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 27, s 29
Result:
The orders made on 26 April 2006 are affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented person : No appearance
Solicitors:
Applicant: Self-represented
Represented person : No appearance
Case(s) referred to in decision(s):
Review of Guardianship and Administration Orders in Respect of MM, Re (2001) 28 SR (WA) 320
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
This proceeding involved the review under s 17A of the Guardianship and Administration Act 1990 (WA) by a full Tribunal of a decision of a single member to appoint the Public Advocate as the limited guardian of Mrs N and the Public Trustee as plenary administrator of her estate.
It was not in dispute, and the Tribunal found on the evidence, that Mrs N was a person for whom orders could be made. The principal matters in issue were whether there was a need for guardianship and administration orders and, if so, whether Mr N should be appointed as guardian and administrator.
The Tribunal decided that Mrs N was in need of oversight, care and control and she was in need of a guardian. Further, she was not able to make reasonable judgments in respect of her estate and was in need of an administrator. The Tribunal was not satisfied that Mr N was suitable to be appointed Mrs N's guardian or administrator.
The Tribunal affirmed the earlier decisions of the single member appointing the Public Advocate as limited guardian to make decisions about Mrs N's accommodation, medical treatment and contact with others and the Public Trustee as Mrs N's plenary administrator.
Background
Mrs N is a 56 year old woman with diagnosed chronic paranoid schizophrenia and diabetes. In March 1993, Mrs N was made an involuntary patient under the Mental Health Act 1996 (WA) and detained at Graylands Hospital.
In 1994, pursuant to orders of the Guardianship and Administration Board (the Board), the Public Trustee was appointed plenary administrator of Mrs N's estate. In 1997 the Public Advocate was appointed limited guardian for the purposes of making decisions about Mrs N's accommodation. At that time, Mrs N was transferred from Graylands Hospital to a psychiatric hostel. The limited guardianship order was then revoked, there being no further function for the Public Advocate. The Public Trustee remained Mrs N's plenary administrator.
In 1998, due to concern about Mrs N's home visits a fresh application for guardianship was made by a social worker who visited the hostel. Evidence was brought before the Board that Mrs N had been returned to the hostel after home visits in a dishevelled and neglected state, had been taken from the hostel by Mr N without prior arrangement and did not take her medication while on home visits. The Board appointed the Public Advocate as Mrs N's plenary guardian for two years.
At a review hearing on 1 May 2000 pursuant to s 84 of the Guardianship Administration Act 1990 (WA) (the Act), the Board confirmed the orders appointing the Public Trustee and Public Advocate as Mrs N's plenary administrator and plenary guardian respectively for a further five years.
In June 2003, Mrs N was transferred to a different psychiatric hostel following the Public Advocate's decision that it would provide the level of care and supervision suitable for Mrs N's needs at that time.
On 31 January 2005, Mrs N applied to the Tribunal for review of the guardianship and administration orders as she wished to reside with her husband and have him assist her informally with her financial affairs. For various reasons, including Mr N's absence from the State and Mrs N's health, the Tribunal did not hear the application until March and April 2006, when the Tribunal made the following orders:
1.to appoint the Public Trustee plenary administrator for a further five years; and
2.to revoke the plenary appointment of the Public Advocate and appoint her limited guardian for five years to:
•decide where Ms N was to live;
•decide with whom Mrs N was to live;
•to consent to medical treatment; and
•to determine what contact Mrs N should have with others.
The s 17A application
On 24 May 2006, pursuant to s 17A of the Act, Mr N sought review of the Tribunal's orders. He asked the Tribunal to make orders that:
1.he be appointed sole guardian and administrator of Mrs N;
2.alternatively, there be a less restrictive regime in place in respect of Mrs N and overnight contact be reinstated immediately; and
3.the orders be reviewed by 26 April 2007 (instead of 26 April 2011 as previously ordered).
A review pursuant to s 17A of the Act is within the Tribunal's review jurisdiction and is by way of a hearing de novo: s 27 State Administrative Tribunal Act (WA) 2004 (the SAT Act). The review is not confined to material that was before the original decision‑maker. Under s 29 of the SAT Act, on review the Tribunal may affirm, vary or set aside the decision under review.
We heard the review application on 27 June 2006. We had before us all the documentary material that was available to the single member at the hearings on 13 March 2006 and 26 April 2006, as well as the transcripts of and reasons for the decision in those proceedings. In addition, we had the benefit of oral submissions and evidence by Mr N (through an interpreter) and Mr and Mrs N's son, a written submission from Ms D (a family friend), a videotape and cassette tapes submitted by Mr N and both oral and written reports from the Public Advocate and the Public Trustee.
At the conclusion of the hearing, we reserved our decision.
The legal principles
Section 43(1) of the Act provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
"(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(1) provides that, where the Tribunal is satisfied that a person in respect of whom an application for an administration order is made:
"(a)is unable, by reason of a mental disability, to make reasonable judgements in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if does so shall appoint –
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made."
The principles to be observed by the Tribunal in proceedings under the Act are set out in s 4. The primary concern of the Tribunal must be the best interests of the person in respect of whom an application is made. Second, every person is presumed to be capable of looking after their safety and health; of making reasonable judgments in respect of matters relating to their person; of managing their own affairs; and of making reasonable judgments in respect of matters relating to their estate.
Third, an order appointing a guardian or administrator must not be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action.
Fourth, a plenary guardian shall not be appointed if, in the opinion of the Tribunal, the appointment of a limited guardian would be sufficient to meet the needs of the person concerned.
Fifth, an order appointing a limited guardian or an administrator must be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.
Unless she is appointed to act jointly with another person or persons, the Public Advocate shall not be appointed as a guardian unless there is no other person "suitable and willing to act": s 44(5).
Capacity
It has not been argued before us that Mrs N is capable of making the relevant decisions. Although Mr N disagrees with the prognosis of his wife's condition, and disputes the medications her doctor prescribes for her, he has not disputed that Mrs N is unable to make reasonable decisions about her own affairs.
The evidence before us shows that Mrs N is not capable of looking after her own health and safety. A report from Mrs N's social worker, dated 10 March 2006, and a report from the General Manager of the hostel where she lives dated 6 December 2005, describe Mrs N's insight into her own mental health issues as very limited resulting in poor judgment and the need for constant supervision to ensure that she takes her medication and adheres to a diet appropriate for a diabetic.
In a report dated 23 November 2005, Mrs N's doctor for the past nine years, Dr Fine, describes Mrs N's prognosis as poor and says that she "will never improve". He states that she has no insight into her schizophrenia or diabetes, would not take any medication if left to her own devices and would be "totally disadvantaged" if left to look after herself; she needs prompting for the most basic daily living activities as she suffers from a condition of thought disorder. In Dr Fine's opinion, Mrs N is totally incapable of self‑care.
With respect to the appointment of a guardian, on the evidence outlined above, we are satisfied and we find that Mrs N is in need of oversight, care or control in the interests of her own health and safety within the meaning of s 43(1)(b)(iii) of the Act.
Before appointing an administrator, the Tribunal must be satisfied that the person is unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate: s 64(1)(a) of the Act. For the purposes of s 64, a "mental disability" is defined in s 3(1) of the Act as including a psychiatric condition. On the evidence before us, particularly Dr Fine's evidence outlining the diagnosis of and prognosis for Mrs N's chronic paranoid schizophrenia, we are satisfied, and we find, that by reason of mental disability Mrs N is a person who is unable to make reasonable judgments in respect of matters relating to all of her estate.
Need for a guardian
It is evident that Mrs N is in need of full-time supervision and care. According to Dr Fine and the social worker at the hostel, Mrs N does not understand the nature of her illnesses. Based on the evidence before us, without supervision she would not take her medication when required or self‑manage her diet adequately in order to control her diabetes. Mrs N needs prompting for her most basic daily activities.
In her report, the Public Advocate describes two specific occasions where Mrs N left the hostel and without someone to prompt her, did not take her medication. When she returned to the hostel on these occasions she was in a dishevelled and neglected state. We accept that these incidents occurred as described by the Public Advocate.
The Public Advocate also reports that hostel staff ration Mrs N's cigarettes, as otherwise she would chain-smoke. Mrs N cannot have a lighter due to the fire risk this would pose.
The Public Advocate has suspended Mrs N's home contact arrangements following an incident in March 2005, when Mr N kept Mrs N at home without informing the hostel. In her report, the Public Advocate advises that subject to Mrs N's health, home visits could recommence gradually, starting with 4‑5 hours on a given day and initially with no overnight stays. However, the following conditions would need to be satisfied:
•Mr N to remove the electrical equipment from their home as it presents a fire hazard, in particular stacked televisions near an exit door of the residence. There would need to be an inspection to ensure that this is done;
•Mrs N to be constantly supervised during home visits so that she is not left alone. In particular, Mrs N's smoking must be supervised and she must not be given any cigarette lighting implement;
•Mr N must comply with the correct administration of Mrs N's medications and diabetes management; and
•all Mrs N's clothing must be returned to the hostel after home visits.
Ms Lawson, the guardian exercising the Public Advocate's functions with respect to Mrs N, gave evidence at the hearing that she has not visited the home since November 2005 and therefore could not say whether the first condition still applies.
Before the hearing, and having read Mr N's submissions, it appeared to us that one possibility might be the adjournment of the hearing so that Mr N and the Public Advocate could liaise and consider the proposal and the above conditions suggested by the Public Advocate in her report. We consider this proposal and the conditions to be entirely reasonable. Whether or not this would lead to a full return home would depend on progress and whether Mrs N's condition deteriorated in any way so that she needed care which is beyond Mr N's capacity to provide.
However, it became evident during the hearing that Mr N had effectively abandoned the second limb of his application relating to a graduated return home and potentially providing for a less restrictive alternative to the appointment of a guardian. Having heard Mr N's response to the Public Advocate's proposal at the hearing, it is clear to us that the gradual reinstatement of home contact between Mr N and his wife is not a workable proposition at this time. We find Mrs N to be in need of a guardian.
Should Mr N be appointed as guardian?
Section 44(1) of the Act requires that before appointing a person as a guardian the Tribunal must be satisfied that the person:
"(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person."
Section 44(2) also requires the Tribunal to take into account, as far as possible, in relation to determining whether a person is suitable to be appointed guardian, the desirability of preserving existing family relationships, the compatibility of the proposed appointee with the proposed represented person and with the administrator, the wishes of the proposed represented person and whether the proposed appointee will be able to perform the functions proposed to be vested in the guardian.
In taking into account the matters referred to in s 44(2), we are conscious that there is evidence before us indicating that Mrs N wishes to return home. A cassette tape submitted by Mr N provides evidence of Mrs N saying that she would like to go home. Ms Lawson gave oral evidence that, when she visited the hostel the day before the hearing, Mrs N told her that she would like to return home. Due to Mrs N's medical condition, the Tribunal has not heard from Mrs N but we accept that she has expressed the wish to return home.
Nevertheless, the Tribunal's assessment of the evidence is that Mr N is not suitable for appointment as Mrs N's guardian. While he clearly loves his wife, it is clear from his evidence that he does not fully understand her needs. This conclusion is supported by the Public Advocate's report which describes two incidents where Mrs N stayed at home and was returned to the hostel in a neglected state and without having taken her medication. Further, Mr N does not accept the prognosis given by Mrs N's general practitioner or consultant psychiatrist and feels that she requires far less medication for her illnesses than she has been prescribed. He is not able to appreciate his wife's complex medical needs.
While Mr N stated in his oral evidence that he would administer Mrs N's medication and make breakfast daily, he claims that their son and daughter would also assist. Even though their son was present at the hearing and agreed to do this, we note that their daughter has not been involved with any guardianship or administration proceedings with respect to Mrs N since at least 2000. The daughter currently lives at the family home and we are not certain that she wishes to be involved in the full‑time care of Mrs N.
Mrs N's son does not currently live at home and a report from the hostel, which was not denied, alleges that Mrs N's son made on the hostel premises bomb threats and behaved aggressively while intoxicated. The Tribunal is not satisfied that the son and daughter are in a position to aid in the care and supervision of Mrs N.
Finally, we are not satisfied that Mr N will act in Mrs N's best interests. The conditions imposed by the Public Advocate for Mrs N's graduated introduction to home visits seem to us to be entirely sensible, given her health needs and that she needs constant supervision and needs to be in a safe and hazard‑free environment. We are satisfied that these conditions are in Mrs N's best interests. The fact that Mr N is not willing to consider fulfilling these requirements in order to make home visits safer for Mrs N demonstrates that he will not act in her best interests.
For the reasons set out above, the Tribunal is not satisfied that Mr N is suitable to be appointed as Mrs N's guardian and will provide the level of care that she requires.
As Mrs N is in need of a guardian and there is no other person suitable and willing to act, we confirm that it is in Mrs N's best interests to appoint the Public Advocate as Mrs N's limited guardian to make decisions about accommodation, medical treatment and contact with others.
Need for an administrator
As the Full Board of the Board pointed out in Review of Guardianship and Administration Orders in Respect of MM, Re (2001) 28 SR (WA) 320, a finding that a person does not have the capacity to act on his or her own behalf in relation to his or her estate does not automatically mean that the person is "in need of an administrator" for the purposes of s 64(1)(b) and s 64(2) of the Act. There may be no need for a formal order if there is "no live issue or foreseeable conflict" in relation to the person's estate, for example, there may be no assets that require administration, or the assets may be managed under some other legal authority such as an enduring power of attorney.
According to the Public Trustee's report, Mrs N's estate is valued at $24 271.89. She owns a property jointly with Mr N and receives a regular allowance from Centrelink. Mr N made a lump‑sum support payment of $39 000 to Mrs N's administrator in 1999 but has refused to contribute financially to her care since. She has regular expenses including hostel fees, medical expenses, personal maintenance expenses and fees for the administration of her estate. Mrs N's expenses exceed her income.
Mrs N cannot manage her affairs and she has expenses that must be met. Her needs have not changed since the single member decision, in April 2006, appointing the Public Trustee as Mrs N's administrator. She continues to require an independent administrator to advance her interests and to ensure she has access to financial resources to ensure that her day to day needs are met and in particular to ensure that her hostel fees are paid.
We are satisfied that, in all of the current circumstances, there is a need for an administrator to be appointed in respect of Mrs N's estate.
Should Mr N be appointed as administrator?
Section 68(1) of the Act requires that, before appointing a person as an administrator, the Tribunal must be satisfied that the person:
"(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person."
Section 68(3) also requires that the Tribunal take into account, as far as possible, in relation to determining who should be appointed administrator, the compatibility of the proposed appointee with the proposed represented person, the wishes of the proposed represented person and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
In considering whether we are satisfied as to the matters referred to in s 68(1)(c) and s 68(1)(d), and taking into account the matters referred to in s 68(3), we are conscious that because of her medical condition we have not been able to ascertain the present wishes of Mrs N.
At the hearing Mr N submitted that he is able and is the best available person to manage his wife's affairs. He gave evidence that he does not drink, bet or smoke. He says that Mrs N would not be paying for accommodation if she lived with him and their only expenses would be the electricity and other costs of living in their own home. Mr N gave evidence at the hearing that he and Mrs N could "live like kings" on their combined incomes from Centrelink. Mr N did not seem to appreciate that, if he and his wife lived together, their combined income would be less than it is at present.
It is evident to the Tribunal that Mr N does not view Mrs N's money as her own. He stated at the hearing that, if he becomes administrator of his wife's estate, he plans to sell their joint property and use the money to buy a duplex. Any leftover money would go into a family trust. He and Mrs N would live on one side of the duplex while their daughter and her children would live on the other. Their daughter could then assist in caring for Mrs N. Mr and Mrs N's daughter has not indicated her agreement to this proposal.
Mr N has indicated, both in his oral submissions and in a written budget submitted to the Tribunal, that he would combine their funds rather than keeping Mrs N's funds separate. Mr N demonstrated that he does not appreciate all of Mrs N's medical needs and we cannot therefore be certain that he would meet all of her medical expenses, particularly where he does not deem them as necessary. Accordingly, we are not satisfied that Mr N is a person who will act in Mrs N's best interests in relation to her estate and it would therefore not be appropriate to appoint Mr N as the administrator of her estate.
We consider that it is in Mrs N's best interests to appoint the Public Trustee as plenary administrator of Mrs N's estate. The Public Trustee is in a position to independently assess the merits of any potential activity in relation to Mrs N's assets and provide sufficiently for the payment of her expenses from her estate. The Public Trustee will include in its consideration in relation to the estate Mrs N's future financial needs.
We therefore confirm the appointment of the Public Trustee as Mrs N's plenary administrator.
Orders
Guardianship
1.The guardianship order made by Member Ms Child on 26 April 2006 appointing the Public Advocate as Mrs N's limited guardian is affirmed; and
2.the application is dismissed.
Administration
1.The administration order made by Member Ms Child on 26 April 2006 appointing the Public Trustee as Mrs N's plenary administrator is affirmed; and
2.the application is dismissed.
Conclusion
The orders made by the Tribunal on 26 April 2006 are affirmed.
I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J ECKERT, DEPUTY PRESIDENT
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