SE
[2020] WASAT 168
•11 FEBRUARY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION 1990 (WA)
CITATION: SE [2020] WASAT 168
MEMBER: PRESIDENT PRITCHARD
MS F CHILD, MEMBER
MS KY LOH, MEMBER
HEARD: 1 JULY 2020
DELIVERED : Ex tempore
PUBLISHED : 11 FEBRUARY 2021
FILE NO/S: GAA 1854 of 2020
SE
Represented Person
Catchwords:
Guardianship - Whether represented person is incapable of looking after her own health and safety - Whether represented person unable to make reasonable judgments in respect of matters relating to her person - Whether represented person is in need of oversight, care or control in the interests of her own health and safety or the protection of others
Guardianship - Suitability of appointment as guardian - Whether appointment as guardian would preserve existing relationships within the family of the represented person
Administration - Whether represented person has a 'mental disability' - Whether the represented person is unable to make reasonable judgments in respect of matters relating all or any part of her estate
Administration - Suitability of appointment as administrator - Whether proposed administrator is able to take responsibility for the represented person's financial situation
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43, s 44, s 44(2), s 64, s 68
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
FY [2019] WASAT 118
PB [2020] WASAT 121
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression)
Introduction
SE has applied, pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act), for the review of a decision made by a single member of the Tribunal on 4 March 2020 (Review Application).
In that decision the Member decided that the requirements under the GA Act for the appointment of a guardian and administrator had been met, she appointed the Public Trustee as the plenary administrator for SE's estate, and she appointed the Public Advocate as the limited guardian with functions in relation to where and with whom SE was to live, in relation to treatment decisions, and in relation to services. The Member also made an order for the review of those appointments.
SE has made the Review Application because she disagrees with the making of those orders. We will turn to her reasons for that below, but it suffices to say that SE does not consider that she requires a guardian or administrator and does not want either to be appointed for her.
For the reasons which follow, we are satisfied that a guardian and an administrator should be appointed, having regard to the requirements of the GA Act, and that there is a need for the appointment of a guardian and an administrator. We are of the view that the persons appointed should be, in respect of administration, the Public Trustee, and in respect of guardianship, the Public Advocate. We will address the terms of those appointments later in these reasons.
The nature of review proceedings under s 17A of the GA Act
The Review Application is made under s 17A of the GA Act, and is within the Tribunal's review jurisdiction. In conducting a review the requirement for the Tribunal is to consider the correct and preferable decision at the time of the decision on the review (that is, today), taking into account all of the material that was before the Tribunal on the earlier occasion and the further information that we received in the Review Application.
Principles governing proceedings under the GA Act
In considering the matters before us we have borne in mind, at all times, the need for us to act in the best interests of SE.[1] That is one of the fundamental principles of the GA Act. We have also started with the presumption that SE is capable of looking after her own health and safety, making reasonable judgments in respect of matters relating to her person, managing her own affairs and making reasonable judgments in respect of matters relating to her estate,[2] but, of course, we are bound to act on the basis of the evidence that is before us. We have also borne in mind the need to take into account the views and wishes of SE[3] and to consider whether there are less restrictive options available.[4]
Criteria for the appointment of a Guardian
[1] GA Act s 4(2).
[2] GA Act s 4(3).
[3] GA Act s 4(7).
[4] GA Act s 4(6).
The requirements for the appointment of a guardian under the GA Act are set out in s 43 of the GA Act. That section obliges us to consider whether SE is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, or in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
We have two reports before us from Dr F (dated 20 June 2020) and from Dr T (dated 20 January 2020). Each of them have expressed the view that, in respect of matters relating to SE's own health and safety (personal care decisions), SE is incapable of making reasonable decisions. Similarly, each of them expressed the view that, in respect of matters relating to financial decision-making, SE does not have the capacity to make reasonable decisions.
The diagnosis that is attributed to that cognitive difficulty is, according to Dr T, Alzheimer's dementia. In Dr F's opinion, it is a cognitive impairment likely due to excessive alcohol consumption in the past.
The observations made in the reports of Dr F and Dr T are also consistent with the results of the application in relation to SE of well-known cognitive screening tests called the Montreal Cognitive Assessment Test and the MiniMental State Examination. These tests indicate levels of cognitive impairment on SE's part.
Having regard to this evidence, we are satisfied that there is no doubt that SE is unable to make decisions that she would need to make to look after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, and that she is in need of oversight, care or control in the interests of her own health and safety.
In respect of the other requirement for the appointment of a guardian, it is clearly met: SE has attained the age of 18 years.
Section 43 of the GA Act also requires us to consider whether there is a need for the appointment of a guardian. We have considered that issue, and we are satisfied that there is a need in this case. In respect of personal care decisions, the evidence before us from officers from the Public Advocate, and the evidence contained in the service providers' reports that we received from Ms M (dated 5 June 2020) and from Mr F (dated 16 January 2020), suggested that SE has limited insight into her own needs, and an inability to understand her current situation and, therefore, to make appropriate judgments in respect of her personal care needs.
Criteria for the appointment of an administrator
The criteria for the appointment of an administrator are set out in s 64 of the GA Act. First, the Tribunal must be satisfied that a person in respect of whom an application for an administration order 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 their estate. The definition of the term 'mental disability' under the GA Act is wide. It is not necessary that a particular diagnosis be made. The requirement is, in effect, that there is an impairment in the person's judgment or decision-making ability, irrespective of its cause. The Tribunal has explored the meaning of 'mental disability' in earlier decisions.[5]
[5] See, for example, FY [2019] WASAT 118; PB [2020] WASAT 121.
Having regard to the medical evidence to which we have already referred, we are satisfied that this first requirement is met, in SE's case.
Secondly, s 64 requires us to consider whether there is a need for the appointment of an administrator. We are satisfied that there is a need in this case. In respect of her financial position, SE simply does not understand her present financial position and does not have an appreciation of it. That was illustrated most clearly today by her adamantly stating to us that she continues to be employed in a financial capacity. The reality is while SE was previously was employed in that role for many years, she is no longer employed.
SE has very clearly expressed to the Tribunal her opposition to the appointment of a guardian and an administrator. SE's view is that neither is required because she does not have a deficiency in her decision-making capacity. Having rejected that view in light of the evidence, we turn to consider the appointment of a guardian and administrator.
We have taken into consideration whether there is a less restrictive means available than the formal appointment of a guardian and administrator, but, for the reasons we will shortly explain, we are not satisfied that a less restrictive alternative other than the formal appointment of a guardian and administrator is possible.
Who should be appointed as guardian and administrator for SE
We turn then to consider the question of the identity of the guardian and administrator in each case. The requirements for the appointment of a guardian are set out in s 44 of the GA Act, and the requirements for the appointment of an administrator are set out in s 68 of the GA Act.
A person who is appointed a guardian must be an individual over 18 years of age, who will act in the best interests of the represented person, not be in a position of conflict, and is otherwise suitable. In respect of the suitability question, s 44(2) of the GA Act sets out a number of criteria, to which we will turn in a moment.
In relation to administrators, s 68 requires that the person must be an individual over the age of 18 years or a corporate trustee, who will act in the best interests of the person in respect of whom the application is made, and must be someone who is otherwise suitable to act as the administrator of the estate of that person.
SE did not give us any input into the question of who should be appointed a guardian or administrator, because she had the view that she did not need either.
Whether AE is suitable to act as guardian or administrator
AE is SE's son. He made submissions in the hearing of the Review Application which assisted us to understand not only SE's views, but his own views in respect of what would be best for SE. His input has been of assistance to us, not least, to enable us to understand more fully the options available in relation to the appointment of a guardian and administrator.
AE put himself forward as a person who would be suitable to act as a guardian. AE was less clear in respect of whether he should be appointed an administrator, but on balance, we understood that he considered that he would be suitable to act as an administrator as well.
We are of the view that AE is not a person who is suitable to act as the guardian or the administrator for SE or in a similar role without a formal appointment, for the following reasons.
First, it was apparent from his evidence today that AE has no appreciation of SE's care needs or the extent of her impairment. Secondly, AE does not appear to have any practical idea of the logistics that would be required in meeting SE's care needs either, of the sorts of services with which he would be required to engage and how he might go about engaging with those services. He referred to making efforts to look on the internet to see what might be available, but the complexity of aged care provision is such that there are a number of challenges in undertaking the role of a decision-maker, and for a person with high care needs, as is the case for SE, that is a difficult task.
Nor could AE, in his evidence today, demonstrate how he would be able to tackle SE's present financial situation. SE has a loan or overdraft of a very considerable amount of money, and AE was unable to envisage any means by which that might be addressed, other than by attempts to repay it. There was no contemplation of whether approaches might be made to the financial institution for debt relief, for instance.
Other examples of the difficulties AE would likely face in respect of meeting SE's care needs or her financial needs are revealed by his limitations in tackling relatively straightforward tasks requested of him by the Public Trustee and the Public Advocate. For example, Ms G, from the Office of the Public Trustee, explained that she made numerous attempts to assist AE to encourage him to bundle up SE's clothes and to put them on the veranda of their former rental property so that Ms G might arrange for the transfer of those clothes to the residential care facility where SE is currently living. Despite Ms G's numerous attempts, AE did not engage in that process. His responses to our questions of him in his evidence today suggested that he has difficulties in taking responsibility for dealing with such tasks.
Ms Y, from the office of the Public Advocate, described how she has made numerous requests of AE to provide a care plan by which he might be able to have his mother return to live with him, rather than to remain in an aged care facility. Despite numerous attempts by Ms Y to have him provide that information, he has failed to do so.
All of those considerations leave us with no confidence that AE would be able to perform the functions of a guardian or an administrator. We are also not confident that AE appreciates the obligation that would be on him, were he to be appointed as a guardian, to act in the best interests of SE, even if that involved him taking action which was contrary to her wishes.
The third reason why we are not satisfied that AE is suitable for appointment as a guardian, in particular, is that we are concerned about the adverse impact of his appointment, from the perspective of preserving his relationship with SE.
It is very clear that SE does not wish to have care provided to her, or to have decision-making functions taken away from her, which is how she sees the appointment of a guardian or administrator. In reaching the conclusion we have in relation to AE's suitability for appointment, we have taken into account SE's preference for not having a guardian and administrator appointed at all. It is also clear that AE cares very much for his mother and respects her wishes, to the point where it appears he does not want to push her into doing things that she does not wish to do. The person appointed a guardian under the GA Act, however, must be someone who will act in the best interests of the represented person even the decision is contrary to their wishes. That being the case, AE's appointment might place him in a position where his relationship with SE would come under strain.
For all of these reasons, we are of the view that AE is not suitable for appointment as SE's guardian or administrator. The position is that there is nobody else who is able to take on these roles, apart from the Public Advocate and the Public Trustee.
The conclusion that we have reached is that the orders that were made by the Member on the previous occasion should be confirmed, but with a variation in the time for the review of the appointments. In those circumstances, the orders that we make today are as follows.
Orders
The Tribunal orders that:
1.The orders made by the Tribunal on 4 March 2020 are confirmed, and the following orders are made.
2.The Tribunal declares that the represented person, SE, is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
3.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed the plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
4.The administration order is to be reviewed by 1 July 2025.
5.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person, subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA); and
(d)to determine the services to which the represented person should have access.
6.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
7.The guardianship order is to be reviewed by 1 July 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
GD
Associate to the Honourable Justice Pritchard
11 FEBRUARY 2021