PV
[2020] WASAT 40
•26 FEBRUARY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PV [2020] WASAT 40
MEMBER: MS F CHILD, MEMBER
HEARD: 6 FEBRUARY 2020
DELIVERED : 26 FEBRUARY 2020
PUBLISHED : 14 APRIL 2020
FILE NO/S: GAA 3911 of 2019
PV
Represented Person
Catchwords:
Guardianship and administration - Represented person with long standing psychiatric conditions - Review of administration order - Whether administrator suitable for appointment - Factors to be taken into account in determining suitability - Compatibility with guardian - Scope of authority of plenary guardian - Administrator's ability to perform the functions and obligation to act in best interests of the represented person
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 4(7), s 44(2)(b), s 45, s 45(2), s 50, s 64, s 68, s 68(1)(c), s 68(3)(a), s 68(3)(b), s 68(3)(c), s 70, s 70(2)(b), s 71(1), s 71(2), s 85, s 85(2), s 85(2)(c), s 86, s 87
State Administrative Tribunal Act 2004 (WA), s 34
Mental Health Act 2014 (WA)
Result:
Administration order revoked
Public Trustee appointed administrator
Category: B
Representation:
Counsel:
| Represented Person | : | Mr L Cassidy |
Solicitors:
| Represented Person | : | Mental Health Law Centre |
Case(s) referred to in decision(s):
LGW [2004] WAGAB 4
SAL and JGL [2016] WASAT 63
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These are the reasons for the decision made on review of an administration order made for PV dated 30 April 2019 by which AF, a friend of PV, is appointed plenary administrator of PV's estate.
The application for review was filed on 14 October 2019 by CM, a social worker at Graylands Hospital (the applicant) and was originally listed for hearing on 12 December 2019. PV was served a notice of that hearing on 14 November 2019.
The original listing date was vacated because of the unavailability of counsel for PV and was relisted on 20 February 2020. The applicant then sought an urgent hearing because PV had discharged himself from Charles Gairdner Hospital (SCGH) against medical advice on 17 December 2019 and had not returned to Graylands Hospital where he had been a patient since 2017. PV's whereabouts were unknown to the treating team and he was reported as a missing person. In the final hearing PV denied that he had discharged himself from SCGH against medical advice or that he was a missing person.
The matter was listed for directions on 16 January 2020. Orders were made allowing inspection of the application and other documents filed by the parties. PV indicated he was seeking an opinion from another psychiatrist and a report from his general practitioner. The application was listed for final hearing on 6 February 2020.
The review was heard on 6 February 2020 and the decision announced on 26 February 2020.
Application
The review application was brought under s 85(2) of the Guardianship and Administration Act 1990 (WA) the (GA Act) seeking the removal of AF as the administrator of PV's estate.
Section 85(2)(c) of the GA Act requires a finding by the Tribunal that the administrator has been guilty of such neglect or misconduct or of such default which renders him unfit to continue as the administrator.
The application states:
[PV]'s mental state is at baseline and he does not engage [in] rehabilitation, spending most of the day off the ward in the community. He accumulates goods and stores these on site, deemed an O[ccupational] H[ealth] and S[afety] issue, and the Administrator declined to meet with the team to address this. The team is in the process of discharge planning, but an accommodation option proposed by the treating team for discharge was not consented to by the Administrator on 27/8/19 due to reasons unrelated to finances, despite the guardian providing consent. An NDIS plan was approved on 24/9/19, allocating [PV] a support coordinator for 6 months, with a role that includes sourcing accommodation and services for discharge [of PV].
At the final hearing AF advised that he had not inspected the application or other documents and did not know the allegations made but refuted them; ts 4, 6 February 2020. AF was provided with copies of the application and the reports of the Public Trustee and the Public Advocate. Counsel for PV had received copies of the documents according to the usual practice of the Tribunal.
The applicant confirmed in the final hearing that there was no suggestion by the applicant or the treating team of any misappropriation of the funds or any dishonesty on the part of AF as the administrator of PV's estate.
At the invitation of the Tribunal, the applicant sought to amend the application to bring an application for leave and an application for review pursuant to s 86 and s 87 of the GA Act, which enables any person to whom leave has been granted under s 87 of the GA Act to apply for a review of an order under s 86 of the GA Act.
The applicant says that AF has made decisions which are outside his authority as administrator and are more properly decisions within the authority of the Public Advocate as the appointed the guardian of PV.
The applicant also contends that AF does not understand his role as the administrator of PV's estate and he does not appreciate or understand the serious nature of PV's mental illness.
Leave was granted to the applicant to amend the application. Leave was granted to the applicant pursuant to s 87 of the GA Act to bring the application for review. The Tribunal was satisfied that there had been a change in circumstances of PV. The Tribunal was satisfied that this was a change of circumstances and that the review should be held for this reason and because it was alleged that AF could not work with the treating team or the appointed guardian (s 87(5)(b) of the GA Act).
The applicant said there was concern that since he had left hospital against advice that PV was not receiving medical or psychiatric care and was without prescribed medications. It was thought he had travelled interstate. It was asserted that AF, who it was thought had control of PV's pension income as the plenary administrator of PV's estate (as the plenary administrator of PV's estate), was facilitating or at least acquiescing to PV's actions. In the hearing AF conceded that he had described PV as 'on vacation' but denied that he had funded a holiday or anything else for PV; ts 42, 6 February 2020.
It emerged in the course of the proceedings that AF had not been able to secure control over PV's Centrelink income since his appointment as administrator in April 2019 and consequently PV received his pension income and managed his own expenditure.
History of orders
PV has been subject to orders under the GA Act since 2003.
Orders were first made on an application by a social worker at Graylands Hospital where PV was then an in-patient.
The social worker described significant ongoing support of PV by his family over many years of his contact with mental health services. The original applicant supported the appointment of family members as administrators of PV's estate at that time. PV's brother, M and sister, F, were appointed joint administrators of PV's estate. In the intervening years they have each been appointed either jointly or solely as administrators of PV's estate.
For a period between 2011 and 2015 the Public Trustee was appointed the plenary administrator of PV's estate.
F was appointed PV's plenary guardian in 2010 and her appointment confirmed on review.
On review of the administration order on 30 July 2015, the Public Trustee's appointment was revoked and M was again appointed as plenary administrator for review in July 2016.
In July 2016 both the administration and guardianship orders were revoked.
New applications seeking guardianship and administration orders were made by PV's mental health case managers in 2017 following PV's admission to hospital as an involuntary patient under the Mental Health Act 2014 (WA) (MHA). Orders were made appointing the Public Trustee as the plenary administrator of PV's estate and F as his plenary guardian for review in August 2022.
F sought review of the guardianship order in February 2019 for family reasons and sought to withdraw from her appointment as guardian. At the time of the review no other family member proposed their appointment. The Public Advocate was appointed as PV's plenary guardian and the review date of 2022 was confirmed.
On an application for review of the administration order sought by PV in April 2019, AF was appointed the plenary administrator of PV's estate for review by 2024. This is the order currently under review.
Legislation
On review, as with an original application, an administration order may only be made when the Tribunal is satisfied that the person concerned is unable, by reason of a mental disability, to make reasonable judgments about his estate and the person is in need of an administrator of his estate (s 64 of the GA Act).
Section 64 of the GA Act is subject to s 4 of the GA Act, which provides:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)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.
(3)Every person shall be presumed to be capable of -
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)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.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) 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.
(6)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.
(7)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.
When considering who may be appointed an administrator of an estate the Tribunal must have regard to s 68 of the GA Act:
(1)An administrator (including a joint administrator) shall be -
(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 -
(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 -
(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 -
(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.
Evidence and material before the Tribunal for the review
The material the Tribunal considered on review included the application, reports from and oral evidence from Dr U, a consultant psychiatrist, Ms D, an occupational therapist (OT) and the applicant social worker (collectively the treating team). The delegated guardian of the Public Advocate (guardian) provided a report and gave evidence in the hearing. PV was legally represented and submissions from counsel were made on his behalf.
A report of a neuropsychologist Dr T, who assessed PV in January 2018, was before the Tribunal. Although requested, reports were not received from Dr S, a consultant psychiatrist or the general practitioner reportedly treating PV.
In the hearing Dr U said he had been treating PV for over one year and in his opinion PV has a diagnosis of bipolar affective disorder. Dr U said that PV had originally been diagnosed with schizophrenia in 1993 but this diagnosis was later changed. Dr U said a number of diagnostic labels have been given to his condition over PV's 27 year period under the mental health system but that of the dozens of psychiatrists who had examined him there was no dissenting voice regarding PV's major mental illness.
Dr U said PV had been a patient in the HEC at Graylands Hospital for just over two years; ts 9, 6 February 2020.
Dr U reported that PV was being treated with 13 medications while in SCGH and had left hospital against medical advice and without these medications. The guardian reported that the general practitioner seeing PV had indicated he had only prescribed two medications at PV's request since his discharge from hospital. PV asserted that he had the prescribed medications but would not disclose how he had obtained them.
Dr U said that as part of his bipolar disorder PV overestimates his abilities and has inflated self-esteem and this causes trouble in adjusting to ordinary daily life. Dr U said that whenever PV was not under close monitoring, he ended up in different very problematic situations. The latest one, prior to coming to Graylands Hospital was, according to Dr U, 'a very clumsy armed robbery … which wasn't really an armed robbery'; ts 9, 6 February 2020.
In his report and in his evidence Dr U refers to a report of a neuropsychologist, Dr T, who had assessed PV in January 2018. As noted, a copy of that report is before the Tribunal.
Dr T reported that although PV has grossly intact cognition there were some concerns about his memory, including his auditory memory being in the extremely low range, visual memory in the low average range, immediate recall extremely low range, delayed memory was borderline, working memory was borderline. In the assessment there were problems identified with PV's processing and integration of multiple types of information, and 'cognitive slippage'. The neuropsychologist concludes that when PV becomes overloaded with information his thinking becomes disorganised.
In response to questions regarding the impact of medications on PV's test performance during the neuropsychological assessment, Dr U said the medications may have some effect but that at the time of the lengthy neuropsychological testing PV was reported as not sedated, was very much alert, was verbose and at his best ; ts 14, 6 February 2020.
Dr U said that the conclusions of the neuropsychologist of the impact of PV's cognitive deficits was consistent with the long term observations of the treating team of PV's functioning on a day to day basis; ts 12, 6 February 2020.
According to Dr T's report PV has severe accumulation disorder.
Dr U describes PV as having accumulated an enormous amount of personal belongings on the Graylands Hospital ward which produced a public health concern; ts 11, 6 February 2020.
Dr U said that PV had been given free access to come and go from Graylands Hospital as he wished. PV had said he wanted to secure accommodation in the community and start an IT business but over a period of months there was no indication to the treating team that either goal had progressed.
Dr U said, in his opinion, although PV had excellent verbal skills and good general knowledge, he had some problems with cognition and he lacked capacity to make reasonable judgments about complex financial matters and legal matters. In response to questions by counsel for PV regarding PV's capacity to make decisions about simple matters, Dr U said that PV could purchase his lunch on a day out; ts 13, 6 February 2020.
The OT said the report of the neuropsychologist described PV's [cognitive] difficulties and her own assessments had detailed his functional impairments; ts 12, 6 February 2020.
The OT said PV has impaired judgment. She reports that in a shopping assessment that PV was unable to purchase items for one meal but went around the shops and purchased 'everything on special'. She said PV had a history of overspending and had attempted to buy shares while receiving a Disability Support Pension. She said he proposed to accrue thousands of dollars in debt through attending university and having a large HECS debt. She said PV had taken out loans and opened many bank accounts.
The OT said PV enjoyed attending swap meets and 'will purchase 5 hats of the same design even though he has lots of hats'. She asserts that PV could not live within his means even under the private administration; t 13, 6 February 2020.
PV disputes he has the psychiatric diagnoses described and challenges the evidence of the treating team as to the impact on his functioning. He asserts that they do not know how he is functioning or what he is doing. PV says that Dr U did not know he went to university or that he had taken steps to obtain employment in the IT industry. He says that 'the treating team cannot report [to the Tribunal] on what they don't know'; ts 23, 6 February 2020.
PV preferred to seek an opinion from another psychiatrist, Dr S. At the commencement of the final hearing PV said he had an appointment with Dr S in three weeks' time and sought an adjournment.
In an email dated 4 February 2020 (in response to an order pursuant to s 34 of the State Administrative Tribunal Act 2004 (WA) for a report and an opinion regarding PV's capacity to make reasonable judgments about his estate) Dr S wrote that he had only seen PV once which left him unable to make any opinions about PV's diagnosis, treatment or capacity. Dr S expressed the preliminary view that PV may not be suitable for his practice.
The Tribunal concluded that in these circumstances, even if PV was seen in three weeks' time by Dr S, it was uncertain whether Dr S would be able or willing to provide any opinion to the Tribunal.
Given the contrast in the duration and nature of their contact with PV, the Tribunal was inevitably likely to place greater weight on the evidence of Dr U than that of Dr S. Dr U has treated PV for over a year and in addition has the benefit of the observations of other members of the treating team including the assessments by the neuropsychologist and the OT. Dr U also referred to previous assessments of PV by other psychiatrists from Mental Health Services, some of which are on the files of the Tribunal from previous proceedings.
The application for an adjournment was refused. The Tribunal considered that further delay in determining the review was not in the best interests of PV.
Is PV a person for whom an administration order may be made?
Although acknowledging PV's disagreement with the diagnosis, the Tribunal accepts the evidence of the treating team that PV has long standing psychiatric conditions of bipolar affective disorder, accumulation disorder and some cognitive deficits. These conditions constitute a mental disability for the purposes of the GA Act.
The Tribunal accepts and prefers the evidence of the treating team to that of PV, that PV's mental disabilities cause PV to be unable to make reasonable judgments about all of his estate. The Tribunal is satisfied that the presumption that PV is capable of making reasonable judgments about his estate is displaced on this evidence and PV remains a person for whom an administration order may be made.
It is unclear whether PV has accrued debts as the treating team fears. It is understood that PV's only income is his Disability Support Pension and his assets are limited to the funds held by the administrator on his behalf in a bank account. If this is the extent of the estate, PV's estate is not large or complex one. However, the Tribunal is satisfied that because his own judgment is impaired, PV needs an administrator of his estate. It is the view of the Tribunal that this need includes the management of his pension income to ensure that his basic needs are met including the payment of accommodation and medication costs as necessary.
Only PV opposes the appointment of an administrator of his estate. All other parties, including AF, support the appointment of an administrator.
Having found that PV is a person for whom an administration order may be made and that he is in a need of an administrator of his estate, the Tribunal must consider who should be appointed as the administrator of his estate
Who should be appointed as administrator of PV's estate?
The applicant contends that AF's appointment should be revoked and the Public Trustee appointed as the plenary administrator of PV's estate.
The applicant argues that AF has made decisions about PV's accommodation and discharge planning which are outside his authority as administrator and are more properly decisions within the authority of the Public Advocate as the plenary guardian of PV. The applicant says that AF does not understand his role as the administrator of the estate or the serious nature of PV's mental illness.
AF said he thought it was wrong that there was an application to remove him as administrator. He described the issues raised by the treating team as 'a silly little point' and that they were doing it just because 'they got a case they're not happy with'; ts 64, 6 February 2020.
AF's own assessment of his administration of PV's estate was that it was going well in terms of PV's quality of life. He had come to this view based on his own observations of PV and had not discussed it with the treating team or with the guardian; ts 21, 6 February 2020.
The applicant refers to some communication with AF but this appears to have been limited. AF said he regularly visited PV at Graylands Hospital or dropped him off but had minimal contact with staff; ts 32, 6 February 2020.
AF said he was aware that the Public Advocate had been appointed as PV's guardian and knew the guardian had authority to make decisions about personal matters for PV; ts 35, 6 February 2020.
AF advised he had not discussed the proposal for discharge of PV from Graylands Hospital with the guardian but said he had consulted PV and PV's family.
AF said he considered the accommodation option was a short-term proposal only. This was challenged by the applicant who said that a more permanent accommodation had been sourced for PV but the administrator would not consent to the discharge option.
The guardian confirmed that while National Disability Insurance Scheme funding had been approved for PV to support him living in the community he was still required to personally pay for his board and lodging at any accommodation arranged. The applicant said that the NDIS plan had been in place for some months and a copy given to the guardian but it had not been provided to the administrator; ts 29, 6 February 2020.
AF acknowledges that PV was unhappy at Graylands Hospital and in his view it was not good for PV's well-being to be at Graylands Hospital too much of the time. However, he confirmed that he did not support the proposal for the discharge of PV to a community living option as proposed by the treating team and consented to by the guardian. AF said he did not want PV discharged from Graylands Hospital (ts 18, 6 February 2020) and that while PV was in Graylands Hospital it was at no cost to him; t 25, 6 February 2020.
AF said he believed that Graylands Hospital 'just wanted to get rid of [PV] because he is in the way'; ts 58, 6 February 2020.
AF said he had never met the guardian before (the hearing). He said he had a poor opinion of bureaucracy and how things are done in government; ts 57, 6 February 2020.
AF disputes that the (accommodation) decision should be made by the guardian; ts 27, 6 February 2020. Further he says that 'because the guardian wanted to do something and needs my signature and I don't give it doesn't mean I should be removed as administrator'; ts 57, 6 February 2020.
AF's related personal experiences in another context where he said he had been accused of a lot of things but never found guilty; ts 56, 6 February 2020. It is understood that AF related this experience in the hearing in response the application being made under s 85 of the GA Act alleging misconduct on the part of the administrator since questions of AF's honesty were not raised in the application or in the course of the hearing.
In respect of the input from family members, although notices of the hearing was posted to them, family members of PV did not attend. However, the guardian said that she had been in contact with F and she had expressed concerns about PV's lack of treatment and the applicant said that M had supported PV having 24/7 support in the community which was the option being proposed. The applicant said community living options for PV had failed in the past because of lack of supports for PV.
Dr U said PV's hoarding disorder and accumulation of objects had caused occupational health and safety concerns at Graylands Hospital and this had been communicated to AF in September 2019. The applicant said that the clinical nurse specialist had asked AF to assist to remove accumulated items but that he had not attended a meeting as requested.
AF said he had collected PV's belongings from Graylands Hospital after he was discharged. He denied he was told in September 2019 there was an occupational health and safety issue relating to hoarding by PV. AF said that hoarding had always been an issue for PV for years and that there was 'not a heck of a lot of stuff anyway'; ts 34, 6 February 2020.
In a report dated 10 January 2020 provided for the review, the Public Trustee sets out communication initiated with AF regarding the need to make contact with various organisations including Centrelink and his health insurer on PV's behalf. The Public Trustee trust manager reports the difficulty in the transfer of the estate to AF including his reported failure to provide a bank account number so that funds held by the Public Trustee could be transferred electronically. Eventually, the Public Trustee paid the money to the administrator by cheque. AF says he was 'pretty sure' he had provided the bank details; ts 53, 6 February 2020.
In relation to the management of the pension income, AF said he did not want PV to have all of his pension but he had been unable to arrange to receive the pension; ts 54, 6 February 2020. He said he had tried to arrange this when he and PV attended Centrelink in August 2019 but they had been told that it was too late in the day. AF said he did not know what had happened and why. The result of this is that PV receives his pension income rather than it being managed by AF as the administrator of the estate.
AF said that PV's pension was only a small amount of money '$470 per week or something like that' but agrees that it is PV's only income; ts 52, 6 February 2020.
AF said that soon after his appointment he assisted PV by removing stored items from commercial storage and storing them at his own premises thereby saving PV money. AF said he did not accept the advice of the Public Trustee that money was owed by PV for storage and said he believed PV when PV told him that there wasn't anything due; ts 49, 6 February 2020. PV said that AF probably 'doesn't know the full issue [about this matter]'; ts 47, 6 February 2020.
PV said he had not wanted to pay the account, that AF had told him to pay it but he had not done so; ts 49 and 66, 6 February 2020. AF said that as the Public Trustee had paid the cost of storage that the Public Trustee should bear the liability not PV; ts 58, 6 February 2020.
AF holds the funds of PV transferred from the Public Trustee of approximately $16,000. AF reports he refused PV's request for release of funds to pay for a passport because, in AF's view PV still needed treatment and he 'wouldn't like to see him travelling overseas and have a relapse'. However, AF said that PV was 'free to spend his own money on that'; ts 51, 6 February 2020.
AF said he was not aware of any debts incurred by PV, he had not been contacted by any creditors and had not 'even bothered to ask' PV because he was sure that PV would have told him; ts 16, 6 February 2020. He also said he was not aware of any HECS debt incurred by PV. In relation to this, AF said 'when I went to university it was free and I felt it would be good if someone like [PV] could attend university'; ts 17, 6 February 2020. He said he was not aware PV had acquired or was attempting to acquire shares; ts 16, 6 February 2020.
The assertion of the applicant is that AF does not appreciate the significance of PV's mental illness is supported by AF's own evidence.
AF says he participated in meetings with psychiatrists at Graylands Hospital during PV's admission. However, he appears to minimise what Dr U described as PV's long-standing major mental illness and concerns that without treatment, medications and supervision that PV's condition could get worse and he could 'get into trouble'; ts 18, 6 February 2020. Dr U had referred to PV being charged with a 'clumsy' armed robbery which had precipitated the admission to Graylands Hospital in 2017; ts 9, 6 February 2020.
PV agrees he was charged with attempted armed robbery but says that the evidence did not support the charges and they were dropped. PV described the 'whole thing as frivolous'; ts 22, 6 February 2020. AF says that it was only through his advocacy to senior politicians that the charges against PV did not proceed. From this information it is clear that AF was aware of the allegations which faced PV at that time and despite the dismissal by PV of the matter as frivolous it can be inferred from AF's comments that he understood the seriousness of the potential consequences for PV.
Although AF says he does not fully understand PV's condition, he appeared to prefer his own assessment of the risks of a deterioration in PV's mental health to that of Dr U who is a consultant psychiatrist and who has treated PV for over a year. AF said if he 'noticed a down-hill spiral in [PV's] behaviour that he would contact [PV's] family and encourage him to go to Graylands'; ts 61, 6 February 2020. AF said it was 'not good for [PV's] recovery to be in Graylands [and] 'mixing with these people all day. I think it is far better for him to be out in the community if he's not a danger to anyone else and I don't believe he is'; ts 17, 6 February 2020.
AF said he did not know anything about PV's medications or the assertions made by the treating team that PV was not taking 13 prescribed medications. AF said he has a licence to dispense medications but had never dispensed medications to PV; ts 60, 6 February 2020.
AF appeared throughout the hearing to place little weight on the opinions of the treating team or the guardian and deferred to PV's assessment of matters or his own views which he acknowledged were not expert; ts 57, 6 February 2020.
Suitability for appointment as administrator - s 68 of the GA Act
The appointment of AF is as an administrator with plenary authority, that is in respect of all of PV's estate; s 71(1) of the GA Act.
An estate of a person is 'a reference to the aggregate of their property, their assets and liabilities, and in practice encompasses the entirety of their real and personal property and all of their financial affairs'; SAL and JGL [2016] WASAT 63 at [22].
When making an appointment of an administrator originally or on review of any order the Tribunal must have regard to s 68 of the GA Act:
(1)An administrator (including a joint administrator) shall be -
(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 -
(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 -
(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 -
(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.
Is AF able to perform the functions of administrator?
On AF's own evidence he has not managed the estate of PV. AF has been unable able to communicate effectively with Centrelink or with the Public Trustee, the former administrator. AF has failed to secure the pension income of PV since his appointment despite saying he believes PV needs an administrator and that he does not think PV should control his pension. AF appeared not to recognise the need to actively pursue this and apparently has not sought advice.
Although recognising that PV's savings should not be released to pay for a passport because of the risk of relapse should he travel overseas, AF did not appreciate the need to act protectively to prevent the use of PV's pension for this purpose.
AF does not appear to understand the scope of the role be performed by an administrator.
It is understood that it is the practice of the Public Trustee to provide to newly appointed administrators on their appointment a booklet setting out the role and responsibilities of the administrator entitled 'The Private Administrators Guide'. In addition the report of the Public Trustee as administrator which was provided for the review hearing, was ordered to be provided to AF when he was first appointed. With these resources the extent of PV’s estate and the role to be played by his administrator should have been evident.
As AF has had been unable to redirect and secure the pension of PV, in practical terms he would not have been able to pay for PV's accommodation from those funds when called on to do so. However, as noted, he failed to follow up with Centrelink or to communicate about this with the treating team or with the guardian.
On AF's own admission he has no idea if PV has any debts or any other assets other than the bank funds transferred by the Public Trustee.
AF's evidence is that he has relied on PV's assessment of his financial circumstances and has not sought any collateral information about PV's expenditure or his debts. He has dismissed the communications from the Public Trustee as the former administrator regarding these matters preferring PV’s version of events without any scrutiny.
This evidence in the view of the Tribunal supports the applicant's contention that AF neither appreciates PV's mental illness and its consequences for his functioning or the role of the administrator as a substitute decision-maker for him.
Although AF says he does not have a close relationship with PV (ts 57, 6 February 2020) it is acknowledged that AF has been a supportive friend to PV, by visiting him in hospital, providing transport for him and storing his personal items. However, in the management of PV's estate which is his role as the appointed administrator, the Tribunal finds that AF has been unable to perform the functions of an administrator of PV's estate; s 68(3)(c) of the GA Act.
Is AF compatible with PV's guardian?
There has apparently been little if any communication between the guardian and the administrator. AF has expressly said that he does not accept the role or authority of the guardian to make the accommodation decision for PV.
The authority of the plenary administrator is set out in s 71(2) of the GA Act which provides:
Where plenary functions are vested in an administrator he may perform, or refrain from performing, in relation to the estate of the represented person, or any part of the estate, any function that the represented person could himself perform, or refrain from performing, if he were of full legal capacity.
(Emphasis added)
The authority of a plenary guardian is provided in s 45 of the GA Act:
(1)Subject to section 43(3), where a person is appointed as a plenary guardian, or 2 or more persons are appointed as joint plenary guardians, he or they have all of the functions in respect of the person of the represented person that are, under the Family Court Act 1997, vested in a person in whose favour has been made -
(a)a parenting order which allocates parental responsibility for a child; and
(b)a parenting order which provides that a person is to share parental responsibility for a child,
as if the represented person were a child lacking in mature understanding, but a plenary guardian does not, and joint plenary guardians do not, have the right to chastise or punish a represented person.
(2)Without limiting subsection (1), a plenary guardian may do any of the following -
(a)decide where the represented person is to live, whether permanently or temporarily;
(b)decide with whom the represented person is to live;
(c)decide whether the represented person should work and, if so, the nature or type of work, for whom he is to work and matters related thereto;
(d)subject to subsection (4A), make treatment decisions for the represented person;
(e)decide what education and training the represented person is to receive;
(f)decide with whom the represented person is to associate;
(g)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;
(h)as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person[.]
The authority of a plenary guardian was considered in LGW [2004] WAGAB 4 (LGW) where the Full Board found that in respect of the scope of authority of a plenary guardian, the language of parental authority provided for in s 45 of the GA was not to be read down. The specific functions identified in s 45(2) of the GA Act were identified as a non-exhaustive list.
The scope of the authority of a plenary guardian, was recognised to include 'not only authoritative decision making but 'all other duties powers and responsibilities that a parent may exercise in relation to a child'. In that decision the Full Board noted that s 50 of the GA Act provides that the acts or decisions of the guardian must be treated as decisions of the represented person; LGW at [49].
Conversely, as identified the language of s 71(2) of the GA Act, the legislation provides that the authority of the administrator is in relation to the estate of the represented person, essentially limited to the estate and a person's financial affairs.
Was the administrator making a decision in the best interests of PV
The submission by counsel for PV is that an administrator must make decisions according to the administrator's opinion as to the best interests of PV, in accordance with s 70 of the GA Act and accordingly decisions might not simply be limited to financial decisions.
Section 70 of the GA Act provides guidance to an administrator of what conduct is in the best interests of a represented person.
Section 70(2)(b) of the GA Act identifies that an administrator acts in the best interests of the represented person when he acts 'in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community'.
Graylands Hospital is an approved hospital under the MHA and being an in-patient at that hospital could not be considered to be living in the general community.
The obligation to make a decision in the best interests of the represented person requires that the administrator make a well informed and considered decision which is lawful and within his or her authority. The obligation does not authorise, in the view of the Tribunal, a decision of AF to circumvent or interfere with the decision made by the guardian that PV be discharged from Graylands Hospital to a community based living option, a decision which was clearly within her authority. In his own evidence, AF acknowledges that he has done this when he asks whether he should be removed as administrator because when the guardian needed his signature he did not give it.
AF's resistance to the discharge plan for PV which would have according to the applicant provided supports to PV to live in the general community was not, on a plain reading of s 70(2)(b) of the GA Act, a decision in PV's best interests.
Because the spheres of decision-making of a guardian and an administrator overlap in practical terms and require communication and cooperation between them, how they will work together is a consideration when appointing an administrator.
Section 68(3)(a) of the GA Act directs the Tribunal to take into account the compatibility of a proposed administrator with the represented person and with any guardian when determining that person's suitability for appointment as administrator. (The mirror section which directs consideration of a proposed appointee as guardian is s 44(2)(b) of the GA Act).
The wishes of the represented person in respect of the appointment of an administrator of the person's estate must be considered pursuant to s 68(3)(b) of the GA Act, so that these considerations are intended to be separately addressed.
'Compatible' is defined as 'capable of existing together in harmony' and 'capable of orderly, efficient integration with other elements in a system'; Macquarie Dictionary Online.
Despite his statement that he is now willing to work with the guardian, having regard to all of AF's evidence and in particular his statements about the accomodation decision itself and the role of the guardian, the Tribunal finds that AF is not compatible with the guardian.
Wishes
PV's wish expressed though counsel and directly to the Tribunal is that no administration order be made. If an order is to be made he prefers AF to continue to act as his administrator to the appointment of the Public Trustee as is proposed by the applicant.
PV's wishes in this regard are acknowledged and must be taken into account pursuant to s 68(3)(b) of the GA Act. However, while the Tribunal must ascertain the wishes of a proposed or represented person (s 4(7) of the GA Act), the primary concern of the Tribunal must be PV's best interests; s 4(2) of the GA Act. It cannot, in the view of the Tribunal, be in PV's best interests that the administration order continue to operate as it has done since AF's appointment.
Having regard to s 68(1)(c) and s 68(3)(a) and s 68(3)(c) of the GA Act which the Tribunal must take into account in determining the suitability for appointment of an administrator, it is the finding of the Tribunal that AF is not suitable for appointment as administrator of PV's estate.
No one else was proposed for appointment as the administrator of PV's estate. Therefore the Public Trustee is appointed plenary administrator of PV's estate. The review period is set for 17 August 2022 to bring it into line with the review of the guardianship order.
Orders
The Tribunal orders that:
1.With the consent of the applicant, the application is amended so that it is taken to have been brought pursuant to s 87 and s 86 of the Guardianship and Administration Act 1990 (WA) and not pursuant to s 85(1)(c) of the Guardianship and Administration Act 1990 (WA).
2.Leave is granted to the applicant to bring the application for review.
The Tribunal declares that the represented person is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)in need of an administrator of his estate.
The Tribunal orders:
Administration
The administration order dated 30 April 2019 is revoked and substituted with an order in the following terms:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administration order is to be reviewed by 17 August 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
14 APRIL 2020
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