NCP and HJP
[2005] WASAT 177
•15 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: NCP and HJP [2005] WASAT 177
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 13 JUNE 2005
DELIVERED : 15 JULY 2005
FILE NO/S: GAA 517 of 2005
BETWEEN: NCP
Applicant
AND
HJP
Represented Person
Catchwords:
Administration Capacity Mental disability Inability to communicate Need for administrator Gifting
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64, s 68, s 72
Result:
Administrator appointed
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
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
The application
These reasons relate to an application made on 12 April 2005 by NCP seeking the appointment of an administrator for HJP pursuant to s 64 of the Guardianship and Administration Act 1990 (WA) ("the Act"). NCP is the daughter of HJP.
The first hearing
The application was first heard on 20 May 2005. Present at that hearing were the applicant, NCP; BP ("mother"); LB ("sister"); DP ("son") and SP ("son") of HJP. HJP was excused from attending.
Two reports were available which speak to the HJP's capacity to make decisions about her financial affairs. The first is by Dr KA, medical officer at the hospital at which HJP is a patient and is dated 14 April 2005. The second is by SJ, a social worker with the same hospital. SJ's report is dated 15 April 2005.
HJP suffered a brain injury from complications following surgery in December 2003. She has severe expressive dysphasia which is an impairment of speech leading to a loss of the power of expression. She also suffers from quadriparesis which is a muscular weakness affecting all four extremities (Saunders, (ed) "Dorland's Illustrated Medical Dictionary 30th Edition" The Curtis Centre, Philadelphia, USA, 2003). According to Dr KA the combination of these conditions means that it is difficult to determine HJP's level of cognition. Her physical disability currently prevents her from making use of communication devices which otherwise might assist in overcoming her loss of expression. Dr KA states that there may be some improvement in HJP's condition bit it will take "months to years". Dr KA is unsure whether HJP lacks capacity to make reasonable decisions in relation to her financial affairs.
In her report SJ states that HJP "appears to take in and understand information" but cannot communicate the understanding she might have because of her disabilities. On that basis SJ concludes that HJP is unable to manage her day to day budgeting and states that SJ's daughter, NCP has been managing her mother's affairs informally. SJ further reports that HJP is well supported by her children who visit regularly.
Evidence from NCP does not fully support the notion that HJP is unable to communicate an understanding of her situation or that she is incapable of making decisions. NCP says that her mother communicates to her family by way of "yes" and "no" responses despite the fact that she fatigues easily and cannot therefore concentrate for long. HJP is said by NCP not to have memory loss.
Family members essentially argue that HJP should not have her right to make decisions for herself removed if there is still a way in which she can understand the types of decisions that need to be made for her and she can make those decisions known.
In respect to the application for administration the decisions relate to the management of her estate which comprises a villa under strata title, a motor vehicle, deposit funds in a bank account, pension and interest income and expenditure to do with her property and personal needs.
Evidence was given that JR, a speech pathologist, has worked closely with HJP to maximise her communication abilities and would likely be in the best position to assess her current comprehension capacity.
It was agreed that JR's opinion be sought and the matter was adjourned to allow that to occur.
The second hearing
The application came before me again on 13 June 2005. Those present at the first hearing were present at the second and HJP was also in attendance but was unable to give evidence.
In the intervening period the speech pathologist, JR, had been asked to provide an assessment and report which she provided to the Tribunal on 10 June 2005.
JR's assessment can be summarised as follows:
(a)HJP is unable to make any intelligible speech words. She can vocalise but not in a way that expresses specific emotion or meaning.
(b)HJP has severe physical disabilities that affect her abilities to communicate non‑verbally. Her facial expressions are best interpreted by those familiar to her but to less familiar people facial expressions displayed when she is happy or upset can be difficult to distinguish.
(c)HJP is able to respond to other's basic questions with a yes/no response (by head and arm movements and pressing switches), however, she is unable to communicate the information required to express her ideas or her wishes to people.
(d)HJP is currently able to follow one and two stage commands but is unable to carry out the components of three stage commands.
(e)HJP has visual difficulties which means reading is hard for her.
(f)HJP is completely reliant on the skill and integrity of the person communicating with her.
(g)Whilst stating that there are severe limitations in assessing the extent of HJP's ability to know the nature and extent of her estate it is JR's "impression" that HJP appreciates that she does need someone to represent her, she is able to identify whom she trusts and her dignity is maintained by being consulted by those who understand her well.
(h)HJP is not able to direct any person to act for her in a particular way.
The members of HJP's family present at the second hearing agree with JR's assessment.
The relevant legislation
When considering administration, the Tribunal must be satisfied that the person for whom the application is made is someone for whom an administrator could be appointed (the question of capacity) and if found incapable whether the person should have an administrator appointed (the question of need). If an administrator is to be appointed the final questions to be considered are what functions should be given to the administrator and who that administrator should be.
The relevant legislation is contained in s 3, s 4, s 64 and s 68 of the Act.
Section 64 provides:
"64.Making of administration order
(1) Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 ¾
(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,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint ¾
(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.
(2) Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.
(3) An appointment under subsection (1) ¾
(a)may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;
(b)may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given; and
(c)shall not be made where the Director‑General of the department established under section 4 of the Community Services Act 1972 is empowered to act for the person in respect of whom the application is made by virtue of section 14 or 15 of that Act, unless the Director‑General consents to the appointment."
Section 3 provides that a "mental disability" includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
The principles to be observed by the Tribunal when dealing with proceedings under the Act are set out in s 4 of the Act. In summary, they are, firstly, that every person is presumed to be capable of looking after his or her own safety and health; of making reasonable judgments in respect of matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to his or her estate. Secondly, an order appointing a guardian or administrator shall 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. Thirdly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of the person concerned. Fourthly, an order appointing a limited guardian or an administrator shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of action and decision. Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.
Finally, s 68 provides:
"68.Who may be appointed administrator
(1) An administrator (including a joint administrator) shall be ¾
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal ¾
(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.
(2) The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that ¾
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
(3) For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible ¾
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(4) The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
(5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act."
Discussion of the evidence and findings of the Tribunal
The first question for consideration is whether HJP has a "mental disability" which renders her unable to make reasonable judgments about all or part of her estate. This is not a straightforward question in a situation where a person might continue to have understanding but is unable to communicate that understanding in a meaningful way.
HJP has an acquired brain injury. That injury has left her with severe physical disabilities and quite likely some level of cognitive impairment but which is at this time unable to be clearly quantified. Whatever her level of cognition, she is unable to convey any abstract or complex thoughts to others if not because of a reduced level of reasoning ability then because of her inability to communicate or perhaps as a consequence of a combination of the disabilities. Does she then, on the evidence, have a "mental disability" that satisfies the requirements of s 64(1)(a) of the Act?
The question might be better put in this way. If a person is absolutely unable to be assessed as to their level of cognitive capacity because of communication disabilities do they have a "mental disability" for the purposes of the Act? I would say that they do. The disability might not be a product of disordered thinking but rather the product of physical inability to translate even reasoned thoughts to a third person. In my view, this means that the person's mental processes are sufficiently "disabled" such that the person is unlikely to be able to interact with another for the purposes of a financial transaction or direct someone else to that end. The practical affect of such a situation is that the person is as disabled as if their thoughts were disordered on account of a mental illness or some dementing condition.
On this reasoning it is not necessary for me to find that HJP has a cognitive impairment such that her thoughts are disordered and she cannot reason as a form of intellectual endeavour. It is sufficient that presently, even with the tools available to her medical team, she is unable to convey her abstract thoughts in a way that would allow her or another person to confidently act on her estate based on whatever communications she can give.
I therefore find that HJP satisfies the criteria of s 64(1)(a) of the Act and that she is unable by reason of a "mental disability" to make reasonable judgments about all of her estate.
I also find that she is in need of an administrator pursuant to s 64(1)(b) of the Act because there is currently a "legal vacuum" in the decision‑making. This need cannot be met less restrictively than the appointment of an administrator (s 4(2)(c)) because HJP is not able to direct any person to act for her in a particular way or express a desire to revoke any authority given. This prevents her from using an instrument such as a power of attorney as an alternative to administration.
I must finally turn to the questions of what functions an administrator should be given and who that administrator should be.
I have found that HJP is unable to make reasonable judgments in respect of all of her estate. It follows therefore that the administrator should be given plenary functions.
The issue of gifting was raised which by virtue of s 72(3) of the Act requires Tribunal approval. Evidence was given that HJP has provided gifts to family members on festive occasions. An amount of up to $250.00 per annum is proposed and I accept this as reasonable and on the information available to me is able to be supported by HJP's estate.
As to who should be administrator, HJP's daughter NCP has proposed herself solely. It is agreed by those present at the hearing that she clearly meets the requirements of s 68(1) and s 68(3) of the Act. There was brief discussion about whether a joint appointment is more appropriate and this is favoured by one of HJP's children. However, all the others present support NCP alone. There is an expectation that an administrator be consultative in the decision‑making and there is nothing to suggest that NCP would do otherwise.
Decision of the Tribunal
It is the decision of the Tribunal that:
1.NCP be appointed plenary administrator of the estate of HJP with all the powers and duties conferred by the Act
2.The administrator is authorised to expend up to a total amount of $250 per annum on gifts on behalf of HJP.
3.This order be reviewed by 13 June 2010.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER
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