Re: JPS
[2005] WASAT 170
•11 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RE: JPS [2005] WASAT 170
MEMBER: MS F CHILD (MEMBER)
HEARD: 18 FEBRUARY 2005
DELIVERED : 11 JULY 2005
FILE NO/S: PA 716 of 2004
BETWEEN: RE: JPS
Applicant
Catchwords:
Guardianship and Administration - Administration - Limited order - Need for protection of asset
Legislation:
Guardianship and Administration Act 1990 (WA), s 64(1), s 84
Result:
Appointment of the Public Trustee as limited administrator
Category: B
Representation:
Counsel:
Applicant: Self-represented
Solicitors:
Applicant: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL
Introduction
These reasons relate to a decision of the Tribunal made on the 18 February 2005 in respect of Mr JPS ("the represented person"). That hearing was a periodic review, pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) ("the Act") of an administration order dated October 2002 which appointed the Public Trustee as plenary administrator of the represented person's estate.
The represented person attended the hearing and his treating psychiatrist gave evidence both in written reports and by telephone to the hearing.
On review the plenary order was revoked and a limited order was substituted for it.
Background
An administration order was first made in respect of the represented person in 1998. That order appointed the Public Trustee as plenary administrator. The order was revoked in 1999 following a periodic review under s 84 of the Act.
A further application was made by a social worker at Graylands Hospital in January 2001 and an order for the appointment of the Public Trustee was again made. That order was revoked in July 2002 on review.
In September 2002 a further application was made by a social worker from the Alma Street Centre following the represented person's admission to hospital, and an order was made in October 2002 again appointing the Public Trustee as plenary administrator. It is this order which is now under review.
On review of an administration order the Tribunal must consider whether s 64 of the Act still applies to the represented person, that is, whether the represented person is unable by reason of a mental disability to make reasonable judgments in relation to all or any part of his estate (s 64(1)(a)). The Tribunal must also be satisfied that there is a continuing need for an administrator (s 64(1)(b)). Even if these elements are established the Tribunal must consider whether the represented person's needs might be met in a less restrictive way than the making of an administration order.
Capacity
The represented person has a diagnosis of paranoid schizophrenia. There are medical reports to this effect on the file going back to the original application in 1998. For the purposes of the review hearing the Tribunal sought and received further evidence in relation to capacity of the represented person from his treating psychiatrist, Dr S.
In his report for the review dated 29 November 2004, Dr S confirmed the previous diagnosis but described the represented person as "currently stable" and stated that he considered the represented person was capable of making reasonable decisions in the spheres of personal healthcare, his living situation and financial affairs and would benefit from managing his own finances "even on a trial basis".
In another report to the Tribunal dated 10 September 2004 produced for the review, Dr S gave a diagnosis of "schizophrenic illness" and stated that the represented person's capacity to manage his financial affairs was "variable" and that he was incapable of executing a valid enduring power of attorney.
In an effort to clarify the apparent inconsistency between the reports that were produced relatively close in time, the Tribunal sought and Dr S agreed to be available by telephone to the hearing.
In his evidence to the hearing Dr S stated that he considered that the represented person should have access to his income but that in respect of larger purchases that his spending should be monitored. Dr S stated in his evidence that there should be a trial period "in which he can budget and attempt to manage his own finances" and that be monitored.
Dr S considered that there should be a way of "making sure that [the represented person] (was) using his money appropriately". There should be monitoring to ensure that the money was not spent "inappropriately" or that the represented person was "looking after himself".
The report of the carer from John Wilson Lodge (where the represented person had been a resident for over four years) raised concerns about the represented persons ability to monitor his own spending. She reported as follows:
"[the represented person] receives his allowance, which is three times more than other residents on a Wednesday, goes out for the day and comes home and sponges from other residents."
She stated further that she considered that the represented person's safety was at risk because of his inability to make reasonable decisions with a possible adverse impact on his mental health. She referred in her report to "past experiences" of "substance abuse, casino spending –admitted to hospital".
The represented person took issue with those comments and stated that the carer was rarely in attendance at the Lodge. He expressed the wish to leave the Lodge eventually and stated that Dr S supported this move.
During the hearing a report prepared by the Office of the Public Advocate for the hearing of the application in October 2002 was read into the record and the represented person was asked to comment on it. The application on that occasion was brought on the basis that when the represented person's savings, accumulated by the Public Trustee during the appointment of the Public Trustee as administrator were released to him on revocation of the order and were dissipated within weeks.
The relevant part is included here:
"[the represented person] has a demonstrated history of being unable to manage his finances. In the last instance this has cost him $5000 in savings. That money could have repaired his teeth and provided a foundation for long‑term security for [the represented person]. Instead its use led to a crisis in his life and another hospitalisation."
In relation to the question of the represented person's capacity, the Tribunal accepts the evidence of Dr S that the represented person has a psychiatric disability and that he is unable, due to his mental disability, to make reasoned decisions about his spending. He is therefore a person for whom an administration order may be made.
Need for an Order
The order under review is a plenary order in favour of the Public Trustee and as such the Public Trustee manages every aspect of the represented person's estate.
The Public Trustee receives the represented person's Department of Veteran's Affairs pension of $587 per fortnight and provides an allowance of $150 per week to the represented person paid directly to his bank account. The Public Trustee also pays chemist accounts and additional meals allowance on his behalf. The represented person's accommodation costs are met directly by Military Compensation.
Dr S's evidence is that the day‑to‑day spending and budgeting of the represented person should be monitored. Although the represented person lives in a psychiatric lodge, the staff at that facility is unable to provide monitoring of expenditure outside the formal authority of an administration order. For other residents of the Lodge, staff provide daily allowances of spending money. The represented person objected to this process and described the Lodge as being "like a prison".
In the current circumstances of the represented person, there is no less restrictive means of achieving monitoring of his expenditure other than the appointment of an administrator. While Dr S suggests that all spending be monitored he supports the represented person having access to his income. Dr S agreed that the represented person's major asset, the $9000 savings held by the Public Trustee should be secured.
The represented person did not accept that he lacked capacity to manage his finances or the need for monitoring or control of any aspect of his expenditure and specifically took issue with the comments of the carer regarding his need to borrow funds from other residents.
Based on the view of Dr S, and the previous experience of the dissipation of the funds of the represented person when the order was previously revoked, it is determined that there is a need for the protection of the major asset of the represented person through an administration order.
Appointee
Although the represented person preferred the appointment of a friend or family member to be his administrator no one attended the hearing, was proposed or consented to such an appointment. The represented person described a "falling out" with his sister who had previously provided support to him. He also stated during the hearing that the only persons who were involved in his welfare were the staff at the Lodge where he lived. There being no alternative appointment available the Public Trustee, as administrator of last resort must be appointed.
The need for protection of the savings of the represented person of $9000 can be met through a limited order appointing the Public Trustee as administrator for the funds currently held but excluding the income of the represented person's income from the order. This will mean that his DVA pension income will be under the control of the represented person.
The order is consistent with the wishes of the represented person for greater control over his finances and to limit the role of the Public Trustee in his life but recognises a need for protection of his only asset.
The need for day to day monitoring of the spending of the represented person will not be achieved through this order, but as it stands his accommodation costs are currently paid directly by the Department of Veterans Affairs.
The order is for the appointment of the Public Trustee as limited administrator for the continued investment of the funds held and the application of those funds at the discretion of the administrator to the maintenance, necessaries, comforts and benefits of the represented person. The order is to be reviewed in two years.
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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