RC
[2024] WASAT 74
•25 JULY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RC [2024] WASAT 74
MEMBER: MS J DE KLERK, MEMBER
HEARD: 13 JUNE 2024
DELIVERED : 13 JUNE 2024
PUBLISHED : 25 JULY 2024
FILE NO/S: GAA 1901 of 2024
GAA 1942 of 2024
RC
Proposed Represented Person
MP
Applicant
Catchwords:
Guardianship - Administration - Presumption of capacity not displaced - Applications dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 40, s 65, s 110N
Result:
Application for administration dismissed
Application for guardianship dismissed
Section 110N application to revoke or vary an enduring power of guardianship dismissed
Category: B
Representation:
Counsel:
| Proposed Represented Person | : | In Person |
| Applicant | : | In Person (via Teams) |
Solicitors:
| Proposed Represented Person | : | N/A |
| Applicant | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons for decision were delivered extemporaneously on 13 June 2024 and have been edited only to anonymise parties, add headings, correct grammatical errors and some infelicity of expression, without variation to the substance thereof. A request for written reasons was received on 26 June 2024 and these reasons are provided in response.)
Introduction
These are my reasons for decision in matters GAA 1901 and 1942 of 2024, which include applications under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act). This is an application brought by MP, seeking the appointment of an administrator and guardian in respect of her father, RC. There is also an application under s 110N, which allows the Tribunal to either revoke or vary the terms of an enduring power of guardianship.
I have read the Tribunal's file relating to the application, which includes the application itself lodged on 16 April 2024 by MP. MP has also provided further financial information and bank statements to assist the Tribunal, as well as a letter and statements, along with a 108page attachment of various social media and text message posts, and a letter from a psychologist, Ms F, also dated 16 April 2024.
There was a letter from the manager of Freedom of Information from a Hospital Group, dated 26 April 2024; a medical report dated 30 April 2024 from Dr G, with an attached letter from the same doctor; and a comprehensive investigation from the principal investigator advocate, contained in a report dated 10 June 2024. I have also sighted copies of enduring power of attorney and guardianship documents executed by RC on 15 June 2016.
I have seen a s 65 emergency financial administration order, which was made on 18 April 2024 as a result of the application, and a comprehensive report from the Public Trustee (PT) in relation to that order.
I have considered all of those documents. I have also had the benefit of hearing evidence given today in person. I have heard from RC himself; from RC's wife, A with the assistance of an interpreter, B; RC's stepdaughter, J; and from the investigator. Joining us via a Teams link, I have heard from the applicant, MP; MP's mother, C, was also present, but chose not to comment during the hearing.
The legal framework
In making a decision, the Tribunal's primary concern must be the best interests of the person concerned. Every person is presumed to be capable of looking after their own health and safety, and of making reasonable judgments in relation to their person and affairs and estate. Orders may not be made where there is an alternative means of meeting someone's needs that is less restrictive on them. Where an order is made, it has to be in terms that impose the least restrictions on the person.
Before appointing an administrator, the Tribunal must be satisfied that the person for whom the order is sought is unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to any, all, or part of their estate, and the Tribunal must be satisfied that the person is in need of an administrator.
Before appointing a guardian, the Tribunal must be satisfied that the person for whom the order is sought is either incapable of looking after their own health and safety; or unable to make reasonable judgments in respect of matters relating to their person; or in need of oversight, care, or control in the interests of their own health and safety, or for the protection of others, and the Tribunal must be satisfied that the person is actually in need of a guardian.
Background
RC is a 66-year-old man who, up until recently, ran his own successful business for many years. RC has a strong Christian faith, and it is accepted that RC does not concern himself too much with material wealth, and it is clear amongst the various reports that RC, for some years now, has been donating very generously to help vulnerable people in other countries.
During the hearing, RC explained that it had started when he was helping some children in Pakistan, and I understand there is one key organisation that RC currently supports. It seems clear, looking at the various reports, that RC's loved ones are concerned that he is perhaps too generous with the amount of money that he gives away, for example, approximately $200,000 over a couple of years.
This application was brought because MP was very concerned that her father was selling a property and that he was going to use the money from the sale, which would be approximately $2.4 million, to build an orphanage overseas. MP's application described RC as presenting as delusional, hallucinating, and angry, speaking about believing the devil was trying to kill him and that he had to save people overseas.
Capacity
MP's concerns were supported in a letter written by Ms F, psychologist. The psychologist had met with RC either six or seven times and wrote in a letter 'to whom it may concern', dated 16 April 2024, that she had not formally diagnosed RC, but believed that he met the criteria for schizophrenia. She set out some brief criteria in a letter, but did not give any substantive rationale, in my view, as to how she saw RC meeting that criteria, other than brief statements. For example, she has written:
Criteria A (1: Delusions; 3: Disorganised Speech; 4: Grossly Disorganised & 5: Negative Symptoms)
Ms F gave the opinion that RC presented with persistent delusions around his role as saviour for orphans overseas and of being persecuted by the government and another organisation, and her letter encouraged further formal investigation and diagnosis. It is unclear to the Tribunal whether or not Ms F sought RC's consent in writing this letter.
Whilst noting the concerns recorded in this letter, it is my view that this letter does not provide much in terms of evidential weight in regard to RC's decision-making capacity, although it does illustrate and/or support the concerns that MP speaks of. Towards the end of the hearing, MP reiterated her concerns and pointed out that she does have a background of experience, with 12 years in finance, as well as 11 years in emergency medicine and works as a paramedic.
MP continues to express dire concerns about her father's health and finances and would like it noted that it is her view that her father will be financially destitute within a couple of years because he has previously told her that he was going to donate all of the proceeds of the sale of the property. MP had concerns about the reports before the Tribunal, noting that there was no specialist psychiatric report before the Tribunal.
During the hearing, the investigator gave a comprehensive summary of his investigation and findings, which I do not propose to repeat except in the briefest of terms. He conducted an investigation and spoke with a number of RC's family members, including BC, RC's brother; SC, RC's sister; MD, long-term friend; and JC, RC's lawyer and nephew.
Whilst all of those people expressed concern that RC is perhaps over-generous financially, they gave a consistent view that there was no evidence that RC has a mental illness, or that his decision to donate money or give money was related to impaired judgment due to a mental illness. DD was able to speak with RC for over two hours and reached a similar view.
Regarding the medical report and letter from Dr G, dated 30 April 2024, Dr G has known RC for eight years and seen him twice in the past year. In terms of mental disability, Dr G wrote 'unclear' and asked that we see an attached letter. In the attached letter, Dr G wrote that:
[RC] is not currently engaged with specialist psychiatric services and does not have a specific psychiatric condition or mental disability[.]
The doctor was concerned that there may be damage to RC's long-term interests financially. He wrote about RC having high morals and a Christian faith and being very generous in nature, that RC has a history of donation to charities to improve the lives of children in poor countries, and that this was an important part of his life in recent years. They have discussed whether RC may be a victim of scammers, and RC had indicated that he was satisfied with the authenticity of the programs and continued to donate. The doctor said there was a risk that RC will be left destitute.
In terms of capacity for decision-making, this is the threshold question for the Tribunal. Dr G wrote that RC was capable of executing enduring power of attorney and guardianship documents, and capable of personal decision-making, including medical. He wrote that he was unsure about whether or not RC could make complex financial or legal decisions.
Having regard to the evidence before the Tribunal, I am not satisfied that RC has a mental disability within the meaning of the GA Act, and that is because whilst MP and the psychologist, Ms F, have expressed concerns as described, the medical report simply says the doctor is unsure in terms of mental disability and that there are no diagnosed conditions, and RC's brother, sister, nephew and close friend all say that he does not have a mental disability.
RC's wife, B, was given the opportunity to comment, and she just said she agreed with the member when I proposed what I was going to do today. So, I did not ask B directly what she thought about whether or not RC had a mental disability, but she did not say anything about that. In any event, there is no clear medical evidence before the Tribunal which says that RC has a mental disability; therefore, the threshold test for making an administration order is not met in this case, and the application for administration is dismissed. The s 65 order made on 18 April 2024 is revoked.
I have considered the issue of decision-making capacity, starting from the presumption that every person is able to make reasonable judgments about their finances and person. The presumption of capacity has not been rebutted in this case because it is my view that whilst I acknowledge the concerns made by the applicant and the psychologist, the medical report, the collateral information from family and the independent investigation all indicate that RC retains capacity to make his own decisions, both personally and financially.
Decision
It is noted that RC was a successful business owner for many years. I am not satisfied that RC is unable to make reasonable judgments about either his estate or his person. The application for administration has already been dismissed, but the application for guardianship is also dismissed. The s 110N application to revoke or vary an enduring power of guardianship is dismissed.
Orders
GAA 1901/2024
The Tribunal orders:
Administration
1. The administration application is dismissed.
Guardianship
2.The guardianship application is dismissed.
GAA 1942/2024
The Tribunal orders:
1.The application to revoke or vary an enduring power of guardianship is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS J DE KLERK, MEMBER
25 JULY 2024
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