PUBLIC TRUSTEE and KMH
[2008] WASAT 171
•5 AUGUST 2008
PUBLIC TRUSTEE and KMH [2008] WASAT 171
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 171 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2302/2007 | 2 MAY 2008 | |
| Coram: | MS S GILLETT (SENIOR SESSIONAL MEMBER) | 5/08/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for appointment of administrator dismissed | ||
| B | |||
| PDF Version |
| Parties: | PUBLIC TRUSTEE KMH |
Catchwords: | Administration Presumption of capacity Mental disability |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64(1), s 97(1)(b)(iii) State Administrative Tribunal Act 2004 (WA), s 78 |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PUBLIC TRUSTEE and KMH [2008] WASAT 171 MEMBER : MS S GILLETT (SENIOR SESSIONAL MEMBER) HEARD : 2 MAY 2008 DELIVERED : 5 AUGUST 2008 FILE NO/S : GAA 2302 of 2007 BETWEEN : PUBLIC TRUSTEE
- Applicant
AND
KMH
Proposed Represented Person
Catchwords:
Administration - Presumption of capacity - Mental disability
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64(1), s 97(1)(b)(iii)
State Administrative Tribunal Act 2004 (WA), s 78
Result:
Application for appointment of administrator dismissed
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Category: B
Representation:
Counsel:
Applicant : Self-represented
Proposed Represented Person : Self-represented
Solicitors:
Applicant : Self-represented
Proposed Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 An application was made by the Public Trustee for the appointment of an administrator for KMH, an eighteen-year-old girl who was the sole beneficiary of her mother's estate. The applicant submitted that KMH might lack capacity to deal with her substantial inheritance due to the effects of past substance abuse, concerns as to possible mental health problems, and an inability to withstand demands from others wishing to obtain access to her monies.
2 KMH told the Tribunal that she wished the Public Trustee to manage her inheritance as she was concerned that she would "blow all of the money". In the absence of any medical evidence that KMH had a mental disability, the Tribunal adjourned the hearing of the application in order to allow for an investigation by the Public Advocate.
3 After hearing from the Public Advocate's representative and allowing further time for medical reports to be obtained, the Tribunal dismissed the application for administration on the ground that KMH did not have a mental disability which rendered her unable to make reasonable judgments in respect to her estate. Whilst the Tribunal appreciated KMH's considerable vulnerability as a very young adult living independently in the community and connected to others involved in illicit drug use, the requirements for the making of an administration order were found not to be satisfied.
Background
4 These proceedings concern an application lodged by the Public Trustee for the appointment of an administrator for the proposed represented person (KMH) pursuant to the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act).
5 The Public Trustee first became involved with KMH, following the tragic death of her mother in a house fire in January 2004, in his capacity as executor of the mother's estate. As a result of significant delays in having an insurance claim determined, the funds from the sale of the property, amounting to around $450,000, only became available to the Public Trustee in early July 2007, a few months after KMH's eighteenth birthday. The present application was lodged in November 2007.
6 Whilst there was little evidence that KMH had a mental disability, the application made by the Public Trustee was motivated by concern that she lacked capacity to manage her inheritance, and that her social circumstances - in
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- particular her association with others involved in illicit drug use - rendered her vulnerable and at risk.
7 The initial hearing of the application on 9 January 2008 was attended by two representatives from the Public Trust Office, JW and JP, and, for the latter part of the hearing, by KMH. This hearing was adjourned, and the application was referred for an investigation and report by the Public Advocate pursuant to s 97(1)(b)(iii) of the GA Act because the evidence available was considered to be inadequate to make findings as to whether KMH was able to make reasonable judgments in respect of matters relating to her estate.
8 The second hearing of the application on 22 February 2008 was attended by JW, representing the Public Trustee, DH, KMH's maternal aunt, and VF, the representative from the Office of the Public Advocate. The hearing was again adjourned as the investigation by the Public Advocate had not proceeded because attempts to contact KMH were unsuccessful until the morning of the hearing.
9 The third hearing on 2 May 2008 was attended by JP, representing the Public Trustee, and VF from the Office of the Public Advocate. KMH did not attend this hearing.
10 Oral reasons for the decision of the Tribunal in respect of an application for administration made by the Public Trustee were delivered at the conclusion of the hearing on 2 May 2008. These written reasons are provided at the request of the Public Trustee pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA).
Relevant legislation
11 The Tribunal may appoint an administrator where it is satisfied, firstly, that the person in respect of whom application is made is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate, and secondly, that she is in need of an administrator of her estate: s 64(1) of the GA Act.
12 Where the Tribunal is satisfied of both matters, it may by order declare a person to be in need of an administrator, and if it does so, shall appoint an administrator or joint administrators.
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Principles to be observed
13 The principles to be observed by the Tribunal in dealing with proceedings commenced under the GA Act are set out in s 4 of that Act. As they apply here, they are:
• the Tribunal's primary concern must be KMH's best interests;
• KMH is presumed capable of managing her own affairs and making reasonable judgments in respect of matters relating to her estate until the contrary is proved to the satisfaction of the Tribunal;
• an administration order shall not be made if KMH's needs could, in the opinion of the Tribunal, be met by other means less restrictive of her freedom of decision and action;
• an order appointing a limited administrator must be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on KMH's freedom of decision and action; and
• the Tribunal must, as far as possible, seek to ascertain KMH's views and wishes.
Medical evidence about mental disability and KMH's ability to make reasonable judgments about her estate
14 The Tribunal was provided with a brief letter written by Dr GS, a general practitioner in Armadale, dated 24 July 2007. This letter states:
"This is to certify that [KMH] is not capable of looking after her money for the time being. She will be reviewed after three months."
15 JP, representing the Public Trustee, advised that KMH had obtained this letter from Dr GS because she wanted the monies from her mother's estate to continue to be managed by the Public Trustee. KMH confirmed this advice and told the Tribunal (at the first hearing) that she had only seen this doctor on the one occasion when she had obtained the letter.
16 KMH told the Tribunal that she did not want to be responsible for managing the monies due to her from her mother's estate because she thought that she may "blow all of the money". Whilst JP acknowledged that KMH had a reasonable appreciation of her vulnerability in respect to managing her inheritance, she submitted that KMH was nevertheless very changeable.
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17 KMH further advised that she had commenced a short program with a rehabilitation facility in July 2007 to deal with some substance abuse issues; however, she stated that she had had no further contact with anyone involved with running this program since mid 2007. KMH said that she does not visit doctors because she does not get sick.
18 VF, from the Office of the Public Advocate, provided a verbal report to the Tribunal at the hearing on 2 May 2008. As her contact with KMH was limited to two telephone conversations and she had been unable to contact KMH's aunt, DH, following the second hearing, the report was limited. VF advised that KMH had indicated that she still wished to have the Public Trustee manage her money, and that she was going to make an appointment to see a doctor and a psychologist to obtain a report to support her wishes. However, VF suggested that, due to KMH's environment and lifestyle, she finds it difficult to follow through with her intentions. VF expressed the view that there was no medical or other evidence that KMH had a mental disability.
19 JP explained that KMH had, on a number of occasions, telephoned the Public Trustee's office asking for money at the behest of other people around her, despite being very aware that these requests would be refused in the absence of an invoice or other documentation. JP expressed the view that the current arrangement with the Public Trustee managing KMH's inheritance enables KMH to appear to the people around her to be compliant with their demand for monies, as the decision to refuse these requests remains outside her control.
20 DH, KMH's aunt, and JP, from the Public Trustee's office, both expressed considerable concern about KMH's vulnerability, particularly in respect to fears that the funds from her mother's estate could have a very deleterious effect on her health and welfare. JP advised that she has developed a good rapport with and understanding of KMH. Nevertheless, all parties concurred that KMH's vulnerability is due to her social circumstances and her age rather than arising from a mental disability.
Findings and reasons
21 The first matter to be determined in respect to this application is whether KMH has a mental disability as set out in s 64(1)(a) of the GA Act. Mental disability is defined in s 3 of the GA Act as including "an intellectual disability, a psychiatric condition, an acquired brain injury and dementia". There is no medical evidence that KMH suffers from
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- any mental disability. Nothing in Dr GS's report supports a finding that she has a mental disability within the meaning of the Act. It contains no indication of any cognitive impairment; moreover, it is not even current, and was obtained at KMH's request, to enable the Public Trustee to continue managing her funds for a short period.
22 The evidence of other parties who know KMH is that she is an intelligent young woman who has an appreciation of her vulnerability in respect to the demands and pressures that are likely to be exerted on her by others should she have access to her inheritance. Nothing in their evidence supports a finding that she is unable by reason of a mental disability to make reasonable judgments in respect to her estate. The concerns expressed by parties as to the consequences of KMH having responsibility for managing her inheritance relate to her social circumstances and her age. Whilst KMH's vulnerability is recognised, there is no evidence of any mental disability, and the presumption of capacity as set out in s 4 is not displaced.
Conclusion
23 For the reasons set out above, I find that a declaration under s 64(1) cannot be made for KMH, as she does not have a mental disability by reason of which she is unable to make reasonable judgments in respect of matters relating to all or part of her estate. Consequently, the application for the appointment of an administrator is dismissed.
Orders
The application for the appointment of an administrator is dismissed.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS S GILLETT, SENIOR SESSIONAL MEMBER
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