SM
[2016] WASAT 49
•9 MAY 2016
SM [2016] WASAT 49
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 49 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:82/2016 | 3 MARCH AND 12 APRIL 2016 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 9/05/16 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | SM |
Catchwords: | Guardianship and administration Administration Protective legislation Capacity Mental disability Intellectual disability Intellectual disability and ability to function in community Ongoing ability to learn despite intellectual disability Presumption of capacity Clear and cogent evidence required to displace presumption of capacity Application dismissed |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64, s 68, s 69, s 84 |
Case References: | GC and PC [2014] WASAT 10 Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 |
Summary | SM is a 49-year-old woman who was due to inherit a substantial sum of money as a beneficiary in the will of her late aunt.,SM's mother made an application to have an administrator appointed for SM to secure and manage the inheritance.,SM and her mother had been estranged for many years.,SM had been diagnosed by a child psychiatrist as having an intellectual disability when she was 16 years of age.,There was no current medical evidence before the Tribunal as to how SM's disability was impacting on her functioning.,SM's mother was concerned, based on past events, that SM was at significant risk of being exploited by others if she was given the inheritance.,What both the psychiatrist's assessment and the mother's evidence did not allow for was the extent to which SM might have matured and learnt from past mistakes. It was not suggested that SM had no ability to learn. ,The evidence before the Tribunal was that SM was currently functioning satisfactorily in the community. ,To SM's credit she had sought advice as to what effect the inheritance might have on her income and housing. She was pursuing ongoing advice from a specialist disability agency.,SM was consistent in her evidence as to how she intended to allocate the inheritance and there was nothing unreasonable or extravagant about what she proposed to do.,The Tribunal found that there were no guarantees from risk of exploitation but on the evidence it was considered to be an unfair restriction on SM's freedom of decision and action if an order was to be made 'just in case'.,The Tribunal accepted that the application made by SM's mother stemmed from a parental love and affection for SM and a genuine concern for her wellbeing.,The application for an administration order was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : SM [2016] WASAT 49 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 3 MARCH AND 12 APRIL 2016 DELIVERED : 9 MAY 2016 FILE NO/S : GAA 82 of 2016 MATTER : SM
- Represented Person
Catchwords:
Guardianship and administration Administration Protective legislation Capacity Mental disability Intellectual disability Intellectual disability and ability to function in community Ongoing ability to learn despite intellectual disability Presumption of capacity Clear and cogent evidence required to displace presumption of capacity Application dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64, s 68, s 69, s 84
Result:
Application dismissed
Summary of Tribunal's decision:
SM is a 49-year-old woman who was due to inherit a substantial sum of money as a beneficiary in the will of her late aunt.
SM's mother made an application to have an administrator appointed for SM to secure and manage the inheritance.
SM and her mother had been estranged for many years.
SM had been diagnosed by a child psychiatrist as having an intellectual disability when she was 16 years of age.
There was no current medical evidence before the Tribunal as to how SM's disability was impacting on her functioning.
SM's mother was concerned, based on past events, that SM was at significant risk of being exploited by others if she was given the inheritance.
What both the psychiatrist's assessment and the mother's evidence did not allow for was the extent to which SM might have matured and learnt from past mistakes. It was not suggested that SM had no ability to learn.
The evidence before the Tribunal was that SM was currently functioning satisfactorily in the community.
To SM's credit she had sought advice as to what effect the inheritance might have on her income and housing. She was pursuing ongoing advice from a specialist disability agency.
SM was consistent in her evidence as to how she intended to allocate the inheritance and there was nothing unreasonable or extravagant about what she proposed to do.
The Tribunal found that there were no guarantees from risk of exploitation but on the evidence it was considered to be an unfair restriction on SM's freedom of decision and action if an order was to be made 'just in case'.
The Tribunal accepted that the application made by SM's mother stemmed from a parental love and affection for SM and a genuine concern for her wellbeing.
The application for an administration order was dismissed.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
GC and PC [2014] WASAT 10
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Introduction
1 SM is a 49yearold woman who lives with her partner, KK.
2 SM is in receipt of a disability support pension and receives a carer payment in respect to KK.
3 In January 2016, SM's mother, LM made an application for an administration order for SM.
4 The application is made under the Guardianship and Administration Act 1990 (WA) (GA Act).
5 SM and LM are estranged.
6 LM is the executor of the will of her late sister (SM's aunt). SM is a beneficiary under the will (inheritance).
7 According to LM, SM's inheritance is likely to be between $100,000 and $150,000.
8 The late aunt did not create a testamentary trust in respect of the inheritance.
9 LM is seeking the appointment of an administrator only for that part of SM's estate that comprises the inheritance.
10 SM opposes the application.
11 The matter was first heard on 3 March 2016 and adjourned (first hearing). SM was concerned that the inheritance would compromise her public housing tenancy which she wants to retain. She was considering not accepting the inheritance if her tenancy would be placed in jeopardy because of the size of the inheritance.
12 The first hearing was attended by SM, her partner KK, a representative from a community legal centre (for SM), LM and several of SM's friends.
13 On 9 March 2016, the Tribunal was notified that after receiving advice, SM would be accepting the inheritance.
14 The final hearing took place on 12 April 2016 (final hearing). In attendance were SM, KK and LM. SM had declined further assistance form the community legal centre.
15 The decision was reserved.
Relevant legislation
16 The relevant legislation is the GA Act.
17 The primary concern of the Tribunal is the best interests of SM: s 4(2) of the GA Act.
18 SM is presumed to be capable of making reasonable judgments in respect of matters relating to her estate until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
19 Under s 64 of the GA Act the Tribunal cannot consider appointing an administrator of the estate of SM unless it can be satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
20 Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
21 If a finding of incapacity is made in respect to SM, the Tribunal must further determine whether she is in need of an administration order. If the needs of SM can be met in a manner less restrictive of her freedom of decision and action then an order should not be made: s 4(4) and s 64(1)(b) of the GA Act.
22 If the Tribunal decides that SM is in need of an administration order it must then decide what authority should be given to the administrator, who the administrator should be and what review date should be set, given the requirement that an administration order must be reviewed at least once every five years: s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
23 If a limited administration order is made, the order must place the least restriction necessary on SM: s 4(6) of the GA Act.
24 In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of SM as expressed, in whatever manner, at the time, or as gathered from SM's previous actions: s 4(7) of the GA Act.
The case presented by LM
25 LM states that she and SM are currently estranged due to the wish of SM to no longer have contact with her immediate family.
26 LM states that SM has a past diagnosis of intellectual disability.
27 LM says that she made the application for an administration order due to her concerns about SM's vulnerability to financial exploitation by others.
28 LM states that SM managed to save a large sum of money when she was living with her. However, once she left home, all of the savings were spent in about 12 months. LM states that during this time SM gave a considerable sum of money to a couple she was living with when they blamed her for a theft at their property.
29 LM states that SM subsequently purchased an onsite caravan and annex at a caravan park for a considerable sum of money but sold it for a few thousand dollars when she entered into a relationship with KK.
30 LM states that in the early years of the relationship with KK, SM would contact her regularly asking for money to repair her motor vehicle. Whilst money was initially provided, the frequency of requests was such that LM placed restrictions on those funds because she feared SM was being 'stood over' for money.
31 LM states that around this time SM severed the relationship with her and her father for several years.
32 LM states that she was concerned about SM's functioning for much of her childhood but that she was not formally diagnosed with an intellectual disability until she was 16 or 17 years of age.
33 LM provided the Tribunal with a report from a child psychiatrist dated 26 May 1983 (when SM was 16 years of age) stating that SM had a fullscale IQ of 75 which the psychiatrist characterised as 'borderline intellectual capacity'. The report stated that SM had good short-term auditory memory which was said to be common to many individuals with 'low intelligence', but that the rest of her abilities were weak, consistent with her intellectual level. The psychiatrist considered that Year 10 would be SM's upper educational limit and that she be given a work placement for 'mildly retarded adolescents'.
34 LM also provided the Tribunal with copies of a student report from term 3, 1983, which showed that SM was a willing student. Relevantly, the following comments were made regarding specific subjects:
• Italian '… she does not have the ability to cope with language studies. She has shown some retention of vocabulary but no understanding of sentence structure.'
• English '… has made some pleasing progress although she still finds some areas difficult. She tends to repeat ideas instead of introducing new material. [SM] has only just attained Year 10 standard.
• History '… the two assignments she handed in were not done properly merely large pieces of work copied straight out of a book.'
• Science 'Test (21%) results show large areas of misunderstanding[.] [I]n all topics covered [SM]'s answers often did not relate to the question or make sense.'
• Humanities (Multi-cultural Studies/Legal Studies) '[SM] completed very good work in both units - especially in Legal Studies assignments.'
35 LM states that she was informed by a social worker at Centrelink many years ago that SM has a mental illness. LM states that SM denies that she has a mental illness or an intellectual disability.
36 LM states that SM was a client of community services for several years commencing in her late adolescence and was sent to a work preparation centre. However, SM found it difficult to gain and maintain employment. LM states that SM attempted TAFE courses and that she is aware that SM failed the personal care assistant course and that a placement at a nursing home was cancelled because of her inability to do the required work.
37 LM states that she has not seen SM for many years and that the estrangement happened when she suggested to SM that she may benefit from being under an administration order, as is her partner, KK.
38 LM submits that she is only seeking an administration order for the inheritance and does not wish to interfere in SM's management of her pension income.
The case presented by SM
39 SM accepts that she has a disability but states that in her view it is 'mild'.
40 SM states that she is in receipt of the disability support pension and receives a carers allowance for KK. She is currently undertaking a TAFE course for literacy and numeracy and upon completion hopes that she will be able to undertake a childcare course.
41 SM states that she pays her bills and is not in debt. She says that she does not currently have any savings.
42 SM is adamant that she is not vulnerable to being taken advantage of because when people ask for money she simply states that she is unable to provide it.
43 SM says that she has not seen her family for a long time and it was about seven years ago that she last asked her family for money. SM states that her mother (LM) will deposit small amounts of money into a bank account from time to time.
44 At both the first and final hearing, SM said that she would allocate the inheritance in the following way: the purchase of a motor vehicle (at the first hearing she said it would be a second-hand vehicle but at the final hearing she had decided it should be a new vehicle); a computer, with the balance is to be deposited with her bank.
45 At the final hearing, SM explained her understanding of how the inheritance might affect her public housing and her Centrelink pension.
46 She says that her public housing will unlikely be affected and that the inheritance will also not likely affect her Centrelink income because with current low interest rates she expects only a small amount of interest to be earned.
Other evidence
47 One of SM's friends, DW, a taxi driver, says that she has known SM for about three years and that in her experience SM is very good with money and that she doesn't buy 'stupid stuff'. She says that SM always pays her taxi bills and has never asked for money. She says she sees SM about three times a week both in her role as taxi driver and as a friend.
48 KK, SM's partner, states that they have arranged for assistance to be given by a specialised agency which advocates for people with disabilities.
The Tribunal's decision
49 The GA Act is often characterised in terms of protective legislation (see Heenan J in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] and [44]). The GA Act provides for, amongst other things, the appointment of an administrator for financial decision-making in situations where a person has impaired cognition and who might therefore be at risk of making decisions contrary to their best interests or be vulnerable to the decisionmaking of others.
50 In deciding whether a person is in need of an administration order it should not be forgotten that in making orders the person loses the right to make fundamental decisions which affect their lives.
51 In GC and PC [2014] WASAT 10 at [36] (GC), the Full Tribunal cautioned:
… The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having the decision-making capacity removed from them and a substitute decision-maker appointed for them under the Act. Because of the significant consequences for an individual of having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity. (emphasis added)
52 I accept on the evidence that SM has an intellectual disability within the meaning of mental disability under s 3 of the GA Act.
53 The assessment by the child psychiatrist in 1983 suggests a static impairment as measured by SM's IQ level. However, the assessment does not assist me in determining how the impairment currently impacts on SM's functioning.
54 LM has provided evidence from past events of what she says demonstrates LM's vulnerability to exploitation.
55 What both the psychiatrist's assessment and LM's evidence do not allow for is the extent to which SM might have matured and learnt from past mistakes. It is not suggested that SM has no ability to learn.
56 The evidence before me is that SM is currently functioning satisfactorily in the community.
57 This does not of course mean she can safely manage a large sum of money.
58 However, I must be satisfied that I have 'clear and cogent evidence' to warrant displacing the presumption of capacity and making an administration order, even a limited order as proposed by LM.
59 I do not have that 'clear and cogent evidence'.
60 There is no evidence before me that SM has unsustainable debt (she says she has no debt) or that she is not generally coping on her modest income.
61 To SM's credit she has sought advice as to what effect the inheritance might have on her income and housing. She is pursuing ongoing advice from a specialist disability agency.
62 SM is consistent in her evidence as to how she intends to allocate the inheritance and there is nothing unreasonable or extravagant, in my view, about what she proposes to do.
63 Of course there are no guarantees from risk of exploitation, but on the evidence before me it would be an unfair restriction on SM's freedom of decision and action if an order was to be made 'just in case'.
64 I accept that the application made by LM stems from a parental love and affection for SM and a genuine concern for her wellbeing.
65 However, I must make my decision on the evidence and to the standard as expressed in GC.
66 For the reasons I have given, I must dismiss the application for an administration order.
Order
1. The application for an administration order is dismissed.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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