SH
[2019] WASAT 102
•23 SEPTEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: SH [2019] WASAT 102
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 17 SEPTEMBER 2019
DELIVERED : 23 SEPTEMBER 2019
FILE NO/S: GAA 2921 of 2019
SH
Represented Person
Catchwords:
Guardianship and administration - Capacity - Presumption of capacity - Mental disability - In need of oversight in interests of health and safety - Advocacy - Make representations to funding bodies and service providers - Make representations to accommodation providers
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4 (4), s 43(1), s 4(7), s 64(1), s 90
Result:
Guardianship and administration orders made
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 decision in this matter was delivered on 23 September 2019. The following reasons have been edited from the transcript to anonymise the names of the parties and to correct minor errors and omissions.
History
SH is 22 years of age. She is currently the subject of the guardianship and administration orders made on 26 June 2017.
The orders were made under the Guardianship and Administration Act 1990 (GA Act).
SH's mother KH was appointed her plenary administrator with a $500 per year gifting authority and her limited guardian to make decisions concerning her accommodation, services and to consent to her medical treatment.
A community mental health team filed an application for review of the guardianship and administration orders on behalf of SH. Leave was granted for the review and the Public Advocate was notified of her possible appointment as guardian.
The hearing of the review application was heard on 17 September 2019. SH attended with her case manager from the community mental health team (case manager). SH's mother also attended as did RJ for the Public Advocate.
The decision was reserved.
The relevant legislation
On review of guardianship and administration orders under the GA Act, the Tribunal can revoke the orders, amend the orders or revoke the orders and substitute new orders: s 90 of the GA Act.
The primary focus of the Tribunal is the best interests of SH taking into account her views and wishes: s 4(2) and s 4(7) of the GA Act.
SH is entitled to a presumption of capacity and the Tribunal must be satisfied on clear and cogent evidence that the presumption can be displaced: s 4(3) of the GA Act.
To make a finding of incapacity concerning personal decisions (guardianship) the Tribunal must find that SH is incapable of looking after her own health and safety, unable to make reasonable judgments in respect to personal matters or in need of oversight care or control in the interests of her own health and safety or for the protection of others: s 43(1) of the GA Act.
To make a finding of incapacity for financial matters (administration), the Tribunal must find that SH, is by reason of a mental disability, unable to make reasonable judgments concerning all or any part of her estate: s 64(1) of the GA Act.
If the Tribunal finds that SH is incapable for the purposes of the GA Act, it needs to make a further finding that she is in need of guardianship and administration orders and that her needs cannot be met in a manner less restrictive of her freedom of decision and action: s 4(4), s 43(1) and s 64(1) of the GA Act.
The written material
In addition to the review application the Tribunal received the following reports.
(1)Consultant Psychiatrist (psychiatrist);
(2)General Practitioner (GP);
(3)Clinical Neuropsychologist (neuropsychologist); and
(4)Public Trustee.
The medical and allied health evidence
The psychiatrist assesses SH as having 'reasonable capacity' and is at a developmental age that warrants more independence. The psychiatrist considers it timely to relinquish guardianship and consider 'voluntary administration'.
The GP states SH has borderline IQ, Post‑Traumatic Stress Disorder (PTSD) and mild depression. He considers that SH would benefit from support to gain competency in financial matters but otherwise considers her capable of making personal decisions. He also assesses SH as capable of executing an enduring power of attorney and enduring power of guardianship.
The neuropsychologist, undertook a detailed assessment of SH's cognition. In addition to her assessment report the neuropsychologist gave oral evidence.
The neuropsychologist notes a previous diagnosis of intellectual disability with which she disagrees. She mentions that SH reported a significant psychiatric history of bulimia, PTSD and anxiety/depression.
The neuropsychologist states that SH's general intellectual functioning falls within the very low to low‑average range. There is no evidence SH has an intellectual disability. SH is considered to have a good ability to learn and remember information. She may require extra time for complex and challenging tasks.
SH is said to have some difficulties in respect of her executive functioning including her working memory (holding and manipulating information in mind), dual tasking and inhibition (of irrelevant or distracting information). In these areas SH performed in the very low to extremely low range.
The neuropsychologist opines that taken as a whole, the neuropsychological assessment suggests that SH currently has the capacity to independently manage her finances (it was noted this included $60,000 in compensation monies) and to make her own lifestyle decisions. However, the neuropsychologist noted that SH expressed a lack of confidence and indicated a desire to have some formal support as she makes a transition to living independently in the community. SH reported that she felt that her maternal grandparents would provide her with the necessary support to assist her to apply for appropriate accommodation services and to begin to manage her finances independently.
It is the view of the neuropsychologist that SH would greatly benefit from accessing supported accommodation that focuses on the development of various life skills. SH is considered to have a good capacity to learn and remember new skills however would benefit from being made aware of her executive functioning difficulties.
When asked what may be the cause of SH's difficulties in her executive functioning, the neuropsychologist suggests that her extremely premature birth would have impacted on these abilities and also includes the fluctuating history of her psychiatric conditions.
As with the GP, the neuropsychologist is of the view that SH is able to make an enduring power of attorney and enduring power of guardianship.
Other evidence and submissions
The case manager on behalf of the mental health team says that the review application was made in consultation with SH and the psychiatrist. She says that the applications were made because there had been a breakdown in the relationship between SH and her mother. SH is unable now to live in the family home and is currently living in crisis accommodation.
The case manager states that SH finds the guardianship and administration orders distressing and in that context has difficulty managing her emotions regarding the orders.
It is the view of the mental health team that the guardianship order is no longer needed. The case manager notes that SH is untested as to her ability to manage her income and savings. After some discussion in the hearing, she proposed an administration order appointing the Public Trustee to manage the current savings and for SH to be given control of her Centrelink pension and the wages from her supported employment.
KH, SH's mother and current guardian and administrator, states that she no longer wants to continue in those roles however is of the view orders are still required.
KH states that SH is prone to impulsive decision-making. Examples of this relate to food spending on account of her bulimia and the decision by SH to embark on sex industry work when she felt that she did not have sufficient money.
KH said that she recently provided SH with $100 cash, $70 of which was supposed to be paid to her crisis accommodation provider, however she found out later that the money had not been paid and the $100 spent on other things.
KH is of the view that in respect to personal decision-making SH is not able to make complex decisions including issues around medical treatment and her future accommodation. She says that SH becomes confused when four or five people are talking in a group.
KH is of the view that her parents will not be able to appropriately or adequately assist SH when she moves to Perth (from a country town). Her parents are elderly, her mother is not well and her father is away from home for periods of time.
KH confirmed that on the basis of a previous diagnosis of intellectual disability, SH had been in receipt of funded support from Disability Services (formerly the Disability Services Commission). However that funding ceased in August this year even though SH is not yet under a National Disability Insurance Scheme (NDIS) plan. She is, by virtue of having received funding from Disability Services, a participant in the NDIS, however the situation has not progressed from that point.
SH states that she feels controlled by the orders and that in the time the orders have been in place her mother has not taught her independent living skills. She accepts that she undertook sex industry work for a period of about six months not that long ago and states the reason she did this was because she felt controlled by her mother through the guardianship and administration orders.
In respect to the cash that her mother referred to, SH said that the crisis accommodation staff said they would receive the rent by way of direct payment from KH and that is why she did not pay the $70 as was the original intention.
When asked what planning she had undertaken to secure new accommodation SH said that she had spoken with her grandparents and with the case manager. She said that she had considered options and the advantages and disadvantages of various accommodation alternatives. She had singled out two possible accommodation options in the Perth area. The first is a two-year residential program concerned with life skills and the latter an apartment with a disability focus. Staff of the former want to meet her face‑to‑face before making a decision and she was advised by the latter that there is currently a three month wait list.
SH said that the crisis accommodation provider has given her another two weeks accommodation after which she must leave and this was confirmed by the case manager. When asked where she would stay in the interim she said she would be able to stay with a friend from church which she has done previously.
In the hearing SH was somewhat variable in her answers as to the need for guardianship and administration orders. At one point she said there was no need for these orders and at another point said that she would be comfortable if half her savings were managed by the Public Trustee and she otherwise manage her income and the remaining half of her savings.
SH emphasised her wish to have supports to assist in her learning and transition to living independently both personally and financially.
The view of RJ from the Public Advocate is that SH continues to require oversight in respect to her personal and financial needs. She requires advocacy in the exploration of her accommodation and support services, the latter given the apparent stalemate with regards to Disability Services funding and the transition to the NDIS. RJ also has concerns regarding whether SH is able to make complex medical decisions although SH said, for example, that she is due to have an operation to improve her hearing, she is under a hospital specialist and is waiting for a date for the operation.
Submissions post hearing
Subsequent to the hearing the Tribunal received submissions from SH and the assistant coordinator from her current crisis accommodation provider.
SH's submission is a heartfelt plea for her and her mother to have a mother-daughter relationship which she states is in part prevented by her mother having control over the decision-making. SH reiterates her wish to be given the chance to make her own decisions and to learn personal and financial life skills.
The assistant coordinator at the crisis accommodation states that SH has been a resident since 14 August 2019. She has been found to be very organised and has an excellent manner with people of all ages. She is said to have great communication skills. The assistant coordinator submits that SH is a capable young woman and it would benefit her well-being and confidence by being able to make decisions for herself.
Discussion of the issues
In deciding whether the presumption of capacity can be rebutted I must take into account all of the evidence which includes the formal assessment undertaken by the neuropsychologist, the opinion of the psychiatrist as well as the more practical day-to-day evidence of the parties including SH and her mother.
SH is a young woman in her early adulthood. She is striving to be independent and takes the existing guardianship and administration orders as inhibiting that independence, and as controlling the right to make her own decisions.
At the same time she shows some insight into her circumstances by expressing the need to learn life skills both personal and financial. She maintains that she has not been given that opportunity.
In her current situation this is exacerbated in her view by her mother being guardian and administrator which prevents the development of a typical mother-daughter relationship.
In respect of personal decision-making I am satisfied on the evidence that SH is in need of oversight in the interests of her own health and safety. I consider this to be the case in two areas of her personal life namely future accommodation and support services.
I am concerned that SH will not be able to navigate her accommodation and support needs on her own. I am satisfied that she is able to consider alternatives but will have difficulty at least initially of completing the decision-making process. For example SH is not currently receiving any funded support either through Disability Services or through the NDIS. I am not convinced that SH is currently in a position to deal with these complex arrangements to ensure she receives the appropriate support for skills development through those funding bodies.
It seems to me that SH will require advocacy and representational assistance in these areas of her personal life at least in the short to medium term. I am not convinced that her maternal grandparents can offer her that guidance and support. Her current relationship with her mother also would not be a means by which this could occur.
I have therefore decided that it is in SH's best interests to appoint a limited guardian with advocacy and representational functions. This hopefully will enable a supported decision-making process to occur so that SH has the best chance of securing appropriate accommodation and funded supports.
As regards SH's finances, this can be conveniently divided into her savings which are around $60,000, her entitlement to a Centrelink income and her wages.
It is the view of SH's mother that she is at risk in managing any of her money in particular given her psychiatric condition of bulimia and impulsive spending which may result. SH states that her condition is stable and she is proactive in seeking assistance from the mental health team.
The evidence more generally points to a reasonably capable young woman able to articulate her needs.
Despite this I am satisfied that for the purposes of the GA Act, SH has a mental disability that being the product of her fluctuating psychiatric conditions and the deficits in her executive functioning. I accept that at times of stress or the need to engage multiple perspectives these deficits place SH at a disadvantage and at some risk.
Nonetheless the opportunity for SH to at least manage some of her financial affairs would seem to be a reasonable prospect on the formal assessment of her intellectual functioning. To reiterate, the need is for practical skills development which she accepts.
I have decided that it is in SH's current best interests for her to be given the opportunity to manage her income and wages but that her savings should be managed under a limited administration order. This will enable SH to demonstrate that she can manage her day-to-day income and expenditure as a pointer towards managing larger sums of money in the future.
I am not convinced that currently with the stresses and uncertainties in her life that she would be able to make reasonable judgments about the larger savings amount.
Given the need for guardianship and administration orders and the submission of SH's mother that she does not wish to undertake those roles (and SH's wish that her mother not be appointed), I will appoint the Public Advocate and Public Trustee as guardian and administrator respectively.
Orders
The orders I make are these:
The Tribunal declares that the represented person, SH is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to part of her estate; and
(b)in need of an administrator of her estate.
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.
Administration
The administration order dated 26 June 2017 is revoked and substituted with an order in the following terms:
1.The Public Trustee is appointed limited administrator of the estate of the represented person with plenary authority except for the collection and management of the represented person's Centrelink payment and wages which will be under the control of the represented person.
(a)In the performance of its functions, the Public Trustee is authorised to liaise with, make enquiry of and obtain information relevant to the represented person in respect of the represented person's Centrelink entitlements.
Guardianship
The guardianship order dated 26 June 2017 is revoked and substituted with an order in the following terms:
2.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 advocate and make representations to funding bodies and service providers, including but not limited to, Disability Services and the National Disability Insurance Agency, in consideration of any support services to which the represented person may be eligible and should have access.
(b)To advocate and make representations to accommodation providers in consideration of any supported or other accommodation for which the represented person may be eligible and should have access.
(c)In support of these functions the guardian is authorised to seek and to receive information on the represented person's behalf from any person, body, department or agency including in respect of her health and medical needs.
3.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.
4.The administration and guardianship orders are to be reviewed by 24 September 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (MEMBER)
31 OCTOBER 2019
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