RM
[2020] WASAT 4
•7 JANUARY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RM [2020] WASAT 4
MEMBER: MR J MANSVELD, MEMBER
HEARD: 7 NOVEMBER 2019
DELIVERED : 7 JANUARY 2020
FILE NO/S: GAA 2433 of 2019
RM
Represented Person
Catchwords:
Guardianship and administration - Leave to apply for review of guardianship and administration orders - Leave to apply for review of administration order withdrawn by applicant - Guardian to form an opinion as to what is in the represented person's best interests taking into account the factors set out in s 51 of the Guardianship and Administration Act 1990 (WA) - Leave to apply for review of guardianship order refused
Legislation:
Guardianship and Administration Act 1990 (WA), s 44(5), s 51, s 86, s 87, s 95(2)
State Administrative Tribunal Act 2004 (WA), s 73
Result:
Leave granted to withdraw application for leave to apply for review of administration order made on 11 June 2019 and application withdrawn
Leave to apply for review of guardianship order made on 11 June 2019 refused
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The matter concerning RM comes before the Tribunal in its jurisdiction under the Guardianship and Administration Act 1990 (WA) (GA Act).
RM is 59 years of age. He has three siblings, a brother DM and sisters, LB and KK.
RM has a history with the Tribunal from July 2008.
On 3 July 2008 LB was appointed RM's plenary administrator.
On 14 October 2008 that order was revoked and the Public Trustee was appointed as RM's plenary administrator upon application by LB of her wish to be discharged from that role.
On 12 October 2009 the administration order was revoked.
On 26 October 2010 JS, a niece of RM, was appointed his plenary administrator. LB and KK were appointed his joint limited guardians to make decisions concerning his accommodation, medical treatment and support services.
On 9 April 2013 the Public Trustee was once again appointed RM's plenary administrator upon application by the Public Trustee who had raised concerns about the conduct of JS as administrator.
On 10 October 2013 KK was appointed RM's plenary administrator upon application by RM himself.
On 4 March 2014 KK was appointed RM's limited guardian to make decisions concerning his accommodation, treatment and support services. LB had sought review of the guardianship order made on 26 October 2010 as she wished to be discharged from that role.
In early 2015 KK sought review of the guardianship and administration orders on the basis that she wished to be discharged from her roles.
On 16 April 2015 AF, another of RM's nieces, was appointed his plenary administrator and LB was appointed his limited guardian with the same functions that were contained in the order made on 4 March 2014 namely decisions concerning RM's accommodation, ongoing medical treatment and support services.
In late 2017 RM sought review of the guardianship and administration orders.
On 1 December 2017 AF was reappointed as the administrator of RM's estate except for the authority given to the Public Trustee. That authority concerned an action in the Supreme Court of Western Australia regarding the estate of RM's late father. The action had been commenced by LB as RM's next friend and in which she was a defendant as were RM's other siblings.
The Public Advocate was appointed RM's guardian to make decisions regarding his accommodation and support services. LB was appointed guardian to consent to RM's medical treatment.
On 2 April 2019 RM sought review of the guardianship and administration orders. His wish was for KK or the Public Trustee to replace AF as the administrator of his estate and for the Public Advocate to replace LB as his guardian for medical treatment purposes.
On 11 June 2019, the Public Trustee was appointed the plenary administrator of RM's estate (2019 administration order) and the Public Advocate as his limited guardian to make decisions concerning his accommodation, support services and medical treatment (2019 guardianship order).
On 18 July 2019 LB sought review of the 2019 guardianship and administration orders.
LB is required to obtain leave of the Tribunal to seek review of the 2019 orders pursuant to s 87 of the GA Act.
The question of leave was heard on 7 November 2019. Present was the delegated guardian from the Public Advocate (delegated guardian), representatives of the Public Trustee, LB, GB (LB's spouse) and KK. LB was legally represented.
Decision
In the course of the hearing, LB sought leave to withdraw the application for review of the administration order. Leave was granted.
The application for leave to seek review of the guardianship order was dismissed.
My reasons follow.
Relevant legislation
Section 86 of the GA Act states:
(1)The State Administrative Tribunal may at any time on the application of -
(a)the Public Advocate; or
(aa)the Public Trustee; or
(b)a represented person or a guardian or an administrator; or
(c)a person to whom leave has been granted under section 87,
review a guardianship order or an administration order.
(2)The eligibility of a guardian or administrator to apply under subsection (1)(b) is limited to the guardianship or administration order under which he acts.
Section 87 of the GA Act states:
(1)Any person may request the State Administrative Tribunal for leave to apply for the review of a guardianship order or an administration order.
[(2), (3) deleted]
(4)The person making the request shall state his reasons for the request at his option -
(a)in writing;
(b)orally in an appearance before the State Administrative Tribunal; or
(c)partly in writing and partly orally.
(5)The State Administrative Tribunal may -
(a)refuse the request; or
(b)if it is satisfied that because of a change of circumstances or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review.
Section 51 of the GA Act states:
(1)Subject to any direction of the State Administrative Tribunal, a guardian shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if he acts as far as possible -
(a)as an advocate for the represented person;
(b)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;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
(3)Nothing in subsection (2)(a) shall be read as authorising a guardian to act contrary to the Legal Profession Act 2008.
The application
LB and AF filed written statements in September 2019 and November 2019.
A submission on behalf of LB and AF was filed in September 2019 (LB and AF are stated as the applicants in the submission whereas in the application form, LB is the only stated applicant).
Guardianship
A significant issue for LB is her view that RM is being permitted to associate with people who are not good for him and that he does not have a structured routine of the sort she organised in the second half of 2016. In recent times RM is said to have led a chaotic lifestyle.
In addition and particularly referencing KK, LB submits that those family members most consulted are inexperienced and untrained in dealing with RM as a person with a disability.
LB states that she is an experienced social trainer in disability services but has not been given a realistic part to play in the decisions that are made for RM.
Whilst LB accepts that the Public Advocate should remain as RM's guardian she proposes the following as conditions or amendments to the 2019 guardianship order or by way of ancillary orders:
•That by way of s 73 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), an ancillary order be made such that LB and AF are integrated into the deliberations that occur in the Public Advocate exercising her authority under the 2019 guardianship order. That all parties to the deliberations be informed simultaneously by group email of all the entire points of view of the other parties, including whether a party has a point of view and if a party decides to do so, its own internal deliberations be excluded from the group email.
•Also by way of s 73 of the SAT Act, an ancillary order be made such that the authority of the Public Advocate to decide where and with whom RM is to live either permanently or temporarily be varied to allow RM to automatically live with LB if he wishes in situations where he is in jeopardy regarding his accommodation and if it is expedient to do so.
•That LB be appointed limited guardian to have direct input into reviews of RM's National Disability Insurance Scheme (NDIS) funding plan and be included in planning meetings.
•That LB be appointed limited guardian to act as RM's representative in the event that a decision of the National Disability Insurance Agency (NDIA) needs to be reviewed by the Administrative Appeals Tribunal (AAT), for example if funding is not increased to meet RM's needs.
Administration
AF states that RM is at risk when he is caught short for his day-to-day money needs. In those circumstances he is likely to accept funds from persons who might subsequently take advantage of him.
AF submits that the Public Trustee cannot act quickly enough in situations where for example RM needs a small amount of money on the weekend.
It is proposed that the Public Trustee as the administrator of RM's estate or AF as a trustee, provide a separate bank account, capped at $1,000 operated and maintained solely in every respect by AF for the purpose of paying RM's day-to-day expenses and that AF account to the administrator for the use of the bank account (separate bank account).
The Public Advocate
The delegated guardian provided a written report and gave oral evidence.
The delegated guardian relevantly states as follows:
•KK lives across the road from RM and will drop in to support him when needed. LB and other family members have regular contact with RM which seems much improved since the 2019 orders were made.
•LB is of the view that the current service providers are not qualified to meet RM's needs and have been negligent in their care in allowing RM to have contact with persons who in the past abused him.
•KK and RM's brother, DM do not agree with LB and instead acknowledge that the service providers do the best they can in circumstances where RM can be strong-willed and difficult to redirect at times. RM is not a candidate for all day support due to his independent living.
•A review of RM's NDIS funding is due in early 2020 (LB says she was not made aware of this review) at which an increase in funding will be sought for extra support hours and accommodation options.
The delegated guardian states that he receives daily contact including a great deal of written material from RM's family which is difficult to process because of the volume involved. The guardian expresses frustration at not receiving enquiries by telephone which he says he could respond to in a timely way.
The delegated guardian submits that the current authority vested in the Public Advocate in the 2019 guardianship order is sufficient to undertake a review of a decision of the NDIA should that be warranted including at the AAT.
The delegated guardian accepts that RM has had contact with an undesirable person and submits that a function giving the Public Advocate the authority to decide with whom RM has contact may be warranted.
The delegated guardian otherwise opposes leave being granted to review the 2019 guardianship order. He states a concern that the changes to the order proposed by LB seem to be based on a notion that the delegated guardian has pre-formed views on what is best for RM which is not the case.
The delegated guardian states that other than in the material before the Tribunal in this proceeding, LB has not specifically put to the Public Advocate the particular matters the subject of the proposed changes to the 2019 guardianship order.
The delegated guardian states that he is prepared to respond to good faith proposals and submissions put by RM's family including that in certain circumstances he might live with LB for a period of time.
Public Trustee
The Public Trustee opposes the granting of leave for review of the 2019 administration order.
The Public Trustee states that the 2019 administration order was, when made, supported by RM's family. It is working for the benefit of RM.
The Public Trustee states that the particular proposal for the separate bank account has not been put directly to the relevant trust manager in the normal course of the management of RM's estate. If it were put to the trust manager, the proposal would receive consideration as with any other suggestion to improve the flexibility of RM's access to funds.
Disposition
Administration
LB sought leave to withdraw the application for leave to review the 2019 administration order and leave was granted.
LB will consider putting the proposal of a separate bank account directly to the Public Trustee as administrator of RM's estate.
Guardianship
LB does not seek to have the Public Advocate removed as RM's guardian.
The Public Advocate can only be appointed as guardian when there is no other person suitable or willing to be appointed: s 44(5) of the GA Act.
In RM's circumstances other than in the limited way LB is seeking her appointment as guardian, the Tribunal has no other option for appointment.
When that occurs the Tribunal (and in this case, RM) must rely upon the decision-making processes of the Public Advocate in her role as appointed guardian.
Section 51 of the GA Act sets out a non-exhaustive list of factors to be considered when a guardian forms a view of the best interests of a represented person.
The factors in s 51 take into account relevantly the guardian acting as the represented person's advocate, to encourage the represented person to live and participate in the community, to encourage the represented person's self-reliance but to protect them from neglect, abuse or exploitation, to consult with the represented person and to take into account as far as possible their wishes and to maintain the supportive relationships the represented person has with others.
Section 51 therefore requires a guardian to embark upon a broad endeavour in coming to a best interest decision including seeking representations from relevant family members and the represented person and other interested persons.
When appointed, the Public Advocate delegates her functions as guardian to a person employed by her: s 95(2) of the GA Act, although the ultimate responsibility for any decision must rest with the Public Advocate herself.
The matters for which LB is seeking consultation and input and for which she is seeking limited guardianship authority are already within the authority of the 2019 guardianship order and form part the process inherent in the obligations of the Public Advocate under s 51 of the GA Act.
LB has not independently of this proceeding put to the Public Advocate her concerns on the conduct of the delegated guardian or submitted proposals by which LB's greater involvement in the decisions concerning RM could be considered.
Consequently and further because there is no submission to revoke the appointment of the Public Advocate as RM's guardian given ongoing family conflict, there seems little merit in having the 2019 guardianship order reopened. It would not be in RM's best interests to once again be exposed to the airing of family conflict within a Tribunal proceeding when the necessary guardianship authority is in place and the ongoing conflict should be able to be managed through the practices and procedures of the Public Advocate.
Leave is therefore refused for LB to apply for review of the 2019 guardianship order.
The submission of the delegated guardian that the Tribunal consider the function of contact be added to the 2019 guardianship order should properly be dealt with by a discrete application by the Public Advocate for review of the 2019 guardianship order if that is considered necessary in RM's circumstances.
Orders
1.Leave is granted to withdraw the application for leave to apply for review of the administration order made on 11 June 2019 and the application is withdrawn.
2.Leave to apply for review of the guardianship order made on 11 June 2019 is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (MEMBER)
8 JANUARY 2020
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