SMYM (also known as SMPM, SMY and MYM) - [2007] WASAT 131

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: SMYM (also known as SMPM, SMY and MYM) [2007] WASAT 131

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MS D DEAN (MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)

HEARD: 31 MAY 2005

DELIVERED : 28 MAY 2007

FILE NO/S: AP 11 of 2004

BETWEEN: SMYM (also known as SMPM, SMY and MYM)
Represented person

Catchwords:

Review s 17A Administration order Capacity Need

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 17A, s 64, s 64(1), s 68, s 68(1), s 68(3)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
State Administrative Tribunal Act 2004 (WA), s 17 s 31, s 27(1), s 27(2), s 29, s 29(5), s 32

Result:

Application dismissed and declaration of need for appointment of an administrator made

Category: B

Representation:

Counsel:

Represented person : N/A

Solicitors:

Represented person : N/A

Case(s) referred to in decision(s):

Re SMPM (also known as SMYM or SMY) (Unreported, Guardianship and Administration Board; 9 September 2004)
Re SMPM (also known as SMYM or SMY) [2004] WAGAB 3, 17 November 2004
Re SMPM, MMY (Unreported, Guardianship and Administration Board; 12 July 2004)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This was an application by SMYM (also known as SMPM, SMY and MYM) for a Full Tribunal to review a decision by a single member of the former Guardianship and Administration Board to appoint an administrator over her estate. The application was made under s 17A of the Guardianship and Administration Act 1990 (WA) and the Public Trustee had been appointed administrator.
SMYM was born in England; she insists on being called by an aboriginal name and she utilises indigenous legal and medical facilities. She owns land that she has indicated she wants to put into a trust for the benefit of indigenous people. She spoke of racism suffered by her and others. She has previously been diagnosed as suffering from a schizo affective disorder. SMYM has no insight into her illness. She is articulate and intelligent but can be irrational in her thought processes, referring to grandiose plans without providing any evidence that demonstrates substance to her claims.
Although the order the subject of the review had been revoked and a new order substituted, and although that order had subsequently been revoked and a third order made, the impact of the first order remained in place, namely, that there was an administrator appointed over SMYM's estate. Accordingly, the Tribunal took SMYM's application to be a review of the declaration that she was in need of an administrator because she was unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to her estate. On that basis, the Tribunal reviewed the decision to appoint an administrator due to SMYM's declared incapacity, rather than the original decision to appoint SMYM's daughter as administrator.
In its review jurisdiction under s 17A the Tribunal considers the matter de novo, looking at all the evidence whether or not it existed at the time the original decision was made. In this case, the applicant provided no new evidence, medical or otherwise, to persuade the Tribunal to revoke the administration orders. The Tribunal had to rely on previous medical reports and files, which were before the former Board. The Tribunal allowed the applicant almost two years to provide new medical reports or other evidence and prompted her on several occasions to do so.
Accordingly, based on the evidence before it the Tribunal found that the applicant is unable, by reason of mental disability, to make reasonable judgments in respect of her estate; that she is in need of an administrator; that there is no less restrictive alternative for managing her estate and that the Public Trustee should remain SMYM's administrator. The Tribunal made the appropriate orders and dismissed the application.

Background

SMYM (also known as SMPM, SMY and MYM) was first made the subject of an administration order as a result of an application made by her daughter, BM, on 16 January 2003. The application was part heard by the former Guardianship and Administration Board (the Board) on 24 March 2003. On that day, the application was adjourned to allow SMYM time to obtain legal advice; to enable the Office of Public Advocate (OPA) to investigate and report to the Board; and to enable the Board to obtain additional and current medical opinion regarding SMYM's capacity to make reasonable decisions in respect of her estate. On 17 November 2003 the application finally came back for hearing. SMYM had not consented to further medical examination and the Board had summonsed various medical files relating to SMYM.
Ms Leslie, the member of the Board hearing the application, made the following orders (the first order):
"1.THAT [BM] of [ADDRESS] BE APPOINTED PLENARY ADMINISTRATOR of the estate of the Represented Person with all of the Powers and duties conferred by the Act;
2.the administrator is required to submit accounts to the Board in respect of that part of the estate of the represented person as is the subject of this order;
3.the order be reviewed by 17 November 2005"
Ms Leslie provided written reasons for that decision and those orders on 12 July 2004 (see Re SMPM, MMY (Unreported, Guardianship and Administration Board; 12 July 2004)).
A somewhat confusing range of consequences flowed from the first order. On 3 June 2004 (prior to the written reasons for the first order being delivered) BM lodged an application for review of the first order. BM sought to be removed from acting as plenary administrator of her mother's estate and to have the Public Advocate appointed. On 29 July 2004, Ms Carroll sitting as a member of the Board made the following orders (the second order):
"1.The order [being the first order] be revoked and an administration order in terms of paragraphs 2 to 6 of this order be substituted for it.
2.The Board having been satisfied that the represented person:
(a)remains unable, by reason of mental disability to make reasonable judgments in respect of matters relating to all of her estate; and
(b)is in need of an administrator of her estate; and
(c)cannot have such need met by other means less restrictive of her freedom of decision and action,
THE PUBLIC ADVOCATE of Level 1 Hyatt Centre, 30 Terrace Road, East Perth, WA BE APPOINTED PLENARY ADMINISTRATOR of the estate of the represented person with all the powers and duties conferred by the Act, save and except that the represented person is to operate the Bankwest credit card account No. **** *** **** ****.
3.The administrator is required to submit accounts to the Board in respect of that part of the estate of the represented person, as is the subject of this order.
4.The former administrator is to file accounts for the period 17 November 2003 to 29 July 2004 within 28 days of this order.
5.The represented person has 28 days from the date of this order to appeal the decision the Board made on the 3 December 2003.
6.This order be reviewed by 17 November 2004."
Ms Carroll delivered written reasons for the second order on 9 September 2004 (see: Re SMPM (also known as SMYM or SMY) (Unreported, Guardianship and Administration Board; 9 September 2004)).
On 2 August 2004 the Public Advocate lodged an application, pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (the Act) requesting review of the order appointing her as administrator of SMYM's estate. The Public Advocate sought to be removed as administrator and for the Public Trustee to be appointed in her stead.
On 26 August 2004, SMYM lodged an application under s 17A of the Act, requesting a review of the first order, challenging each aspect of it and seeking revocation of it on the basis that she did not lack capacity and there was no need for an administrator of her estate. This application was lodged after the written reasons were delivered for the first order and after the second order was made (which revoked the first order), but prior to publication of the reasons for the second order.
Both of the s 17A applications, being the application lodged by the Public Advocate and the application lodged by SMYM, came before a Full Board for hearing on 20 September 2004, pursuant to the then provisions of the Act. The Full Board adjourned SMYM's application for the review of the first order on the basis that she had not had an opportunity to see the relevant papers relating to her proceedings. It made the following orders regarding SMYM's application under s 17A of the Act:
"1.The hearing of this matter be adjourned to a date to be fixed by the Executive Officer.
2.The Public Advocate attend the next hearing of the Board in relation to the represented person.
3.The Public Advocate investigate and report in writing to the Board as to whether;
(a)the represented person is a person for whom a declaration under section 64 could be made;
(b)whether she is in need of an administrator; and
(c)any other matter the Public Advocate considers relevant to the application."
The Full Board proceeded to hear the Public Advocate's application under s 17A of the Act seeking appointment of the Public Trustee as administrator and the Full Board made the following orders (the third order):
"1.The order be revoked [being the second order] and is substituted by an Administration order in the following terms:
2.THE PUBLIC TRUSTEE of 565 Hay Street, Perth WA BE APPOINTED LIMITED ADMINISTRATOR of the estate of the represented person with all the powers and authority of a plenary administrator conferred by the Act save and except that the represented person is to operate the Bankwest Credit Card account no. **** *** **** ****.
IT IS FURTHER ORDERED THAT:
3.The Public Advocate is exempted from submitting accounts to the Board.
4.The Public Advocate submit a report as to the represented person's estate and her affairs generally within 21 days of this order.
This order be reviewed by 20 September 2009."
Therefore, the situation at the end of 2004, was that the Public Trustee had been appointed plenary administrator of SMYM's estate (subject to SMYM operating her credit card) until 20 September 2009. SMYM's application for review of the first order (which had been revoked) was still on foot and had been adjourned to a date to be determined.
On 1 January 2005 this Tribunal assumed the functions of the Board pursuant to the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) (Conferral Act). The Act was also amended pursuant to the Conferral Act and in particular s 17A was amended to allow for the Tribunal (constituted by three members as a Full Tribunal) to hear applications for review of decisions of a single member. As SMYM's application for review of the first order had not been heard, this Tribunal was constituted to hear her application, which it did on 31 May 2005.
At the time that this Tribunal heard SMYM's application for review of the first order, the first order had been revoked by the second order, which had in turn, been revoked by the third order. However, the consequences of the first order remained in place. SMYM is seeking a review of the findings by the Board when it made the first order that she is unable, by reason of a mental disability, to make reasonable judgments in respect of her estate, that she lacks capacity and that there is a need for an administrator. This Tribunal as constituted on 31 May 2005 heard SMYM's application on the basis that whether the administrator was BM, the Public Advocate or the Public Trustee is of limited consequence. SMYM made it quite clear that she did not believe that there was any need or right to appoint an administrator, regardless of who it is, for her estate. SMYM was strongly of the view, as she had been at the previous hearings relating to her, that the Board and the Tribunal had no evidence of her mismanaging or squandering her finances, and as there was and is no such evidence, the Board made a mistake when it made the first order and the Tribunal must therefore revoke the order or the effect of the order.
At the hearing of 31 May 2005, we decided that, in order to make an assessment of SMYM's capacity and need as required by s 64(1) of the Act, we required a current medical report, whether from a psychiatrist, psychologist or suitably qualified medical practitioner, relating to SMYM's capacity. The most current medical evidence that the Tribunal had before it was a "doctor's guide" standard form completed by a practitioner who had seen SMYM three times over four months. We advised SMYM that based on all of the evidence we had before us on 31 May 2005, we would have to make a decision that she lacks capacity and is in need of an administrator to manage her affairs. However, we were prepared to give SMYM additional time in which to lodge further medical evidence to persuade the Tribunal otherwise.
Consequently, at the hearing on 31 May 2005, the following orders were made:
"1.This matter is adjourned until SM [SMYM] files a current medical report from a practitioner of her choice, setting out a clinical assessment regarding SM and as to the following:
(a)basic psychological testing, for example, Mini Mental and Global Assessment Functioning;
(b)SM's form of thought, consideration of delusion versus belief issues;
(c)planning abilities; and
(d)whether, in relation to her decision‑making in respect of her financial and property affairs, SM in any way currently lacks mental capacity due to some mental disorder and, if so, whether it would be in relation to the total management of her estate or in part only.
2.This matter is to be listed for a directions hearing if SM files the medical report referred to in order 1."
By May 2006, almost a year later, SMYM had still not filed a medical report. Pursuant to s 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal sought to inform itself as it saw fit and prompted SMYM for that medical evidence by letter dated 12 May 2006. The matter was listed for a directions hearing on 16 June 2006 in order to address whether SMYM intended to continue with her s 17A application or whether SM preferred to withdraw. SMYM requested adjournment of the directions hearing as she was unwell and it was relisted for 4 August 2006. On 3 August 2006 SMYM again requested adjournment of the directions hearing listed for the next day. The Tribunal vacated that directions hearing pursuant to SMYM's request on the condition that she progressed the production of additional medical evidence to the Tribunal. On 4 August, when it vacated the directions hearing, the Tribunal ordered SMYM to lodge the medical evidence by 6 September 2006 and that "the Tribunal will reserve its decision on this matter on 6 September 2006 whether or not the report is filed".
On 31 August 2006, Dr PC contacted the Tribunal regarding SMYM's application. He advised that he had been asked by SMYM to produce a medical report in accordance with the Tribunal's order of 31 May 2005 but that he would not be able to complete the assessment by 6 September 2006. The Tribunal granted an extension of time for filing of the medical report to 22 September 2006. On 21 September 2006 Dr PC sought a further extension and SMYM was given until 29 September 2006 to file the medical evidence, and the Tribunal again ordered that it would reserve its decision on 29 September 2006 whether or not the report was filed.
The Tribunal has not received any further medical evidence from SMYM despite requests. The Tribunal has held off delivering this decision and reasons in the hope that some evidence would be filed. The Tribunal has reserved its decision and now delivers its decision and its reasons for that decision.

The evidence

We have read the Board's files and the Tribunal's files with respect to SMYM which include:
•written reasons for decision of Ms Leslie ‑ Re SMPM, MMY (Unreported, Guardianship and Administration Board; 12 July 2004);
•written reasons for decision of Ms Carroll delivered on 9 September 2004 – Re SMPM (also known as SMYM or SMY) (Unreported, Guardianship and Administration Board; 9 September 2004), together with the transcript of the hearing on 29 July 2004;
•Full Board decision dated 17 November 2004 ‑ Re SMPM (also known as SMYM or SMY) [2004] WAGAB 3, 17 November 2004, together with the transcript from the hearing on 20 September 2004;
•all medical reports and files, OPA reports, Public Trustee reports, submissions and reports from relatives, friends and lawyers with respect to each hearing and application that has occurred before the Board or the Tribunal with respect to SMYM;
•medical report from Dr C dated 8 August 2000;
•completed doctor's guide from Dr S dated 19 October 2004;
•letter from Dr PC dated 26 April 2005 addressed to the Public Advocate;
•report of the Public Trustee dated 24 May 2005; and
•OPA report dated 25 May 2005.
At the hearing on 31 May 2005 the applicant, SMYM, was present and she made submissions and gave evidence. Accompanying her was a friend, Mr TS and her sister Ms LR was on telephone link. Also present was Mr Coniglio from OPA and Mr Hughes from the Public Trust Office.

Section 17A review by a Full Tribunal

Where a decision is made regarding a person by a single member of the Tribunal (or as in this case a single member of the Board), a party aggrieved by the decision of that single member may request the President of the Tribunal to arrange a Full Tribunal to review the decision. That is what occurred in this instance.
When the Tribunal considers the matter under s 17A of the Act, it does so in its review jurisdiction and therefore s 17 to s 31 of the SAT Act applies to these review proceedings. The Tribunal looks at the decision of the single member "by way of a hearing de novo, and it is not confined to matters that were before the decision‑maker but may involve the consideration of new material whether or not it existed at the time the decision is made" (s 27(1) of the SAT Act). This means that the Tribunal does not need to find an error or fault in the decision which it is reviewing; the applicant has the right to have the decision reviewed and need not show that there was any underlying error or problem with it. "The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review" (s 27(2) of the SAT Act). The decision of the Full Tribunal becomes the decision of the Tribunal and is to be regarded as and given effect as the decision of the original decision‑maker (s 29(5) of the SAT Act).
Section 29 of the SAT Act provides that on a review:
"The Tribunal may ¾
(a)affirm the decision that is being reviewed;
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and ¾
(i)substitute its own decision; or
(ii)send the matter back to the decision‑maker for reconsideration … ,
and, in any case, may make any order the Tribunal considers appropriate."
It follows therefore, that in these proceedings we considered all available material, existing both before and at the time that the first, second and third orders were made and any material that was available to the Tribunal since the third order was made.
We explained the nature of the hearing and the powers of the Tribunal at some length to SMYM; however, it appears to us that she continued to hold a fundamental misunderstanding of the role of the Tribunal in these review proceedings (see T:35).

Principles to be observed

In making this decision, we must observe the following principles:
•our primary concern must be for the best interests of the person concerned, that is, SMYM;
•every person is presumed to be capable of managing their own affairs and making reasonable judgments in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal;
•an administration order must not be made if the needs of the person could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action;
•where an order is made, it must be in terms that impose the least restrictions on the person's freedom of decision and action; and
•we must seek to ascertain, as far as possible, the views and wishes of SMYM.
These principles are stated in s 4 of the Act. It is clear that s 4(2) provides for a presumption of capacity. On that basis, unless evidence is put to the Tribunal to the contrary, the Tribunal should presume the person has the capacity to manage their own estate. However, in review proceedings such as these, where the Tribunal has substantial evidence before it including medical evidence that shows incapacity of the represented person and prior current orders to that effect, then the Tribunal is entitled to ask the represented person to put before it new evidence showing that the person has capacity. To do so does not amount to overturning the presumption of capacity or creating a presumption of incapacity. Rather, in these proceedings, SMYM has sought review of a decision and she needs to bring appropriate information and evidence before the Tribunal; otherwise the Tribunal must rely on medical evidence and information that was previously before the Tribunal. In those circumstances, although a discretion lies in the Tribunal, it is unlikely that a current order will be completely overturned and revoked when there is no additional contrary evidence before the Tribunal.
Unfortunately in this proceeding, SMYM did not bring any additional information before the Tribunal regarding her capacity or mental state. In fact, Ms Carroll at the hearing in the Board on 29 July 2004 strongly recommended that SMYM obtain new medical evidence on which the Board could rely when hearing her application for review of the first order. Again, at the hearing on 20 September 2004, when the Full Board adjourned SMYM's s 17A application, it stressed to her that it would be most beneficial to her position if she were to put new evidence regarding her mental health before the Board. In addition, the Acting Executive Officer of the Board wrote to SMYM requesting additional evidence. OPA also strongly recommended to SMYM that she obtain a new medical assessment in support of her s 17A application.
We understand that in fact Dr PC did complete a report regarding SMYM on 29 September 2006. However, she did not authorise him to send it to the Tribunal, despite the Tribunal's orders made on 31 May 2005 and subsequently in 2006.
We are also of the view that the obligation on the Tribunal to ascertain as far as possible the views and wishes of the person concerned does not carry such weight that those wishes would completely undermine the clear legislative intent of s 68 of the Act, which relates to who may be appointed administrator.

Sections of the Act

Section 64 of the Act provides:
"64. Making of administration order
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 ¾
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint ¾
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.
(3)An appointment under subsection (1) ¾
(a)may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;
(b)... "
Section 68(1) provides:
"(1)An administrator (including a joint administrator) shall be ¾
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal ¾
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person."
Section 68(3) provides
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible ¾
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator."

What the Tribunal must be satisfied of

Before appointing an administrator, we must be satisfied that SMYM is:
•unable by reason of a mental disability to make reasonable judgments in respect of the matters relating to all or any part of her estate; and
•is in need of an administrator.
We must make findings with respect to each of those issues, bearing in mind the principles in s 4(2).
If we are satisfied as to both, and that an administrator can be appointed, we must then consider whether an administrator should be appointed. In exercising our discretion, we must consider whether the person's needs can be met by any less restrictive means.

Findings about capacity

We are satisfied on the evidence that SMYM lacks capacity in the relevant sense and we are therefore satisfied on the evidence before us that she is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to her estate (s 64(1) of the Act).
Although in one of the early reports by Dr C and in a letter from one of the lawyers at the Aboriginal Legal Service reference is made to a view that, on balance, SMYM is merely eccentric and excitable rather than suffering from a mental disability, the weight of evidence before us, in particular doctors' reports over a period of years, convinces us that SMYM lacks the relevant mental capacity to manage her own affairs.
Despite Dr PC finally undertaking an assessment of SMYM which she declined to allow him to release to the Tribunal, his letter to OPA dated 26 April 2005 states that SMYM:
"was not keen to have me undertake any kind of assessment that could be used in Guardianship Board hearings. She was incredibly hostile to the process that has brought her to her present situation, and I believe that she feels that agreeing to take an active part of that process would be an acknowledgement by her of its validity. I wasn't able to explain to her in a way that she was happy with that her only chance to have things to her benefit would be to engage in the process required."
OPA provided an investigation report to the Tribunal dated 25 May 2005. In preparation of that investigation report, OPA conferred with various lawyers who had advised SMYM, three doctors, a mental health nurse and a number of SMYM's relatives and friends. When encouraging SMYM to obtain a current assessment of her capacity, OPA advises that she was adamant that the first order should never have been made on the information before the Board and that she could see no need for any additional information to now be put before the Tribunal. The lawyer from the Mental Health Law Centre advising SMYM advised OPA that they could not progress SMYM's matter because she refused to consent to a current assessment of her capacity.
OPA also advised that SMYM believes that there is a conspiracy against her with a series of events involving her former husband, her daughter, the police and three local authorities. Prior to the hearing on 31 May 2005 SMYM had advised OPA that at the hearing on 31 May 2005 she expected control of her financial affairs to be returned to her together with an apology and repatriation. OPA stated that this "indicated she lacks confidence in the system to provide justice and intimated taking both the Tribunal and Family Court matters to the Supreme Court". She repeated these views at the hearing on 31 May 2005.
With respect to the issue of capacity therefore, we have no option but to rely on older medical reports, evidence, letters and findings made with respect to SMYM. We also rely on the evidence she gave to the Tribunal, her submissions and her general demeanour on 31 May 2005.
SMYM was born in England in 1942. She migrated to Australia many years ago. She was admitted involuntarily to a mental health facility in September 2000 for about a month and was diagnosed as suffering from bipolar effective disorder (manic episode) specified as schizo affective disorder and manic psychosis. Apparently she was elevated and energised and displayed "loosening of associations, derailing" and was "grandiose and preoccupied with persecutory delusions, paranoid ideation and complex native and aboriginal delusions". SMYM believes herself or appears to believe that she is aboriginal. Much of the correspondence she had written that was before the Tribunal and her oral evidence on 31 May 2005 refers to racial discrimination and to the plight suffered by aboriginals in Australia. She has conceded that she might suffer from anxiety and some panic attacks but she attributes those symptoms that have been diagnosed as a mental disorder to the fact that she is a quick, sensitive, naturally exuberant and vivacious person. Certainly she presents and appeared to the Tribunal as a highly intelligent person able to speak on a range of complex issues, so long as she had control of the discussion and it did not divert from the focus she gave it. However, she also appeared to be angry and at times rambling and irrational and the transcripts of previous hearings also indicate an anger which seems to stem from a level of paranoid delusion.
SMYM referred to friends and politicians at high levels who were sympathetic to her cause. However, she provided to the Tribunal letters that she had written to these various people and organisations and not their responses to her. We had no real indication of support for her position although she did advise that a senior figure in the Western Australian religious community (A) was available to speak to us. However, we concluded that until we had some new evidence with respect to capacity little would be achieved by speaking with A. We note that A did speak to the Board on 29 July 2004 in support of SMYM, but that evidence was based on A's reading and understanding of documents provided by and discussions with SMYM. A's view was not based on medical, financial or legal expertise. A expressed the view that evidence as to mental health was not sufficient in the circumstances; the Board required evidence that SMYM had been previously incompetent in handling her affairs (see T:29; 29.07.04).
Medical reports indicate that SMYM would be able to manage her affairs if she took the appropriate medication for her illness. However, SMYM clearly has no insight into her illness and on that basis it is likely that she sees no reason to take her medication. She continues with grandiose plans. For example, she spoke of incorporating her land into an entity with her as administrator/trustee for her own use during her lifetime and for the perpetual use of indigenous people. This would be on the basis that they use the land for the purpose of herbal and natural therapies and education in indigenous ways. She indicated to OPA that she had an accountant who was looking at the structure and that various groups and business persons and politicians were interested in the proposal "some suggesting that it was a cleverly planned, cost effective, quantified business venture. Others were interested in the tax effectiveness of the idea". SMYM did not wish to disclose any of these documents, the names of the accountants or other advisors or details of those who had supported the concept.
SMYM is also of the view that what she does on her land is a charity or a primary industry and as such should be exempted from land tax and rates. She is apparently aware that her capital sums are being depleted for her living expenses, although she lives frugally, and states she wishes to secure employment but is unable to because of these issues before the Tribunal.
SMYM's lack of insight into her illness was clear to us at the hearing on 31 May 2005. We are also of the view that her inability to understand the Tribunal's role in these proceedings, despite our best attempts to explain it to her, indicates her lack of capacity. For example the following exchange sheds some light:
"Eckert J: … a question as to what we're actually reviewing, because we've got a series of orders revoking previous orders, but it seems to us that you probably don't care about that technicality, you want what you want reviewed, is the order that you were in need of an administrator, is that correct?
SMYM: Yes, what I would like revoked is Ms Leslie's decision
Eckert J: Well, that's been revoked.
…
Eckert J: tell me what it is that we can do that you want us to do.
SMYM: I want Miss Leslie's decision revoked.
Eckert J: But it has been.
SMYM: I want my assets returned to me.
…
Eckert J: So, what you want is Ms Leslie's decision revoked.
SMYM: Yes.
Eckert J: But, what I'm telling you, is that it has been revoked, so I'm asking you is what are you seeking, you're seeking a pronouncement from this tribunal that you were not someone in need of an administrator?
SMYM: Yes.
Eckert J: Okay. And that on that basis the role of the Public Trustee, you seek to have that terminated.
SMYM: Mm hm.
Eckert J: And that's really it, isn't it? So that you don't have an administrator and then you manage your own assets." (T:23 and 24)
SMYM also makes assertions that are either untrue or totally unsubstantiated. We do not believe that she is intentionally lying, rather that, because of her paranoia and her delusional approach, she strongly believes the assertions she makes. For example at page 37 of the transcript she states:
" … The previous hearing which was adjourned, the Public Trustee was requested repeatedly by the tribunal at that time, to give me support and keep the caveats off the land and give me support for the Family Court. I have not had any of that support."
SMYM went on to confirm that the previous hearing she was referring to was the Full Board hearing of 20 September 2004. However, the transcript of that hearing indicates that there was no such request or discussion by the former Board.
The second and third orders reserved to SMYM the role of managing her own visa credit card. The Public Trustee gave evidence at the hearing on 31 May 2005 that he felt that SMYM was capable of managing her day to day affairs; however, he would need to remain the final authority on these issues. He advised that he had told SMYM's bank that this was the case. He also expressed some concern that SMYM was still attempting to operate her accounts and telling banks one thing whilst he was telling another and that this was creating confusion and miscommunication. We are of the view that SMYM should be able to continue to manage her own visa account but that this is a matter for the Public Trustee to decide based on how SMYM performs on a regular basis with the management of her visa account.
Therefore based on the medical evidence before us, we find that SMYM lacks the necessary capacity by reason of mental disability to make reasonable judgments in respect of matters relating to her estate.

Findings about need

The evidence of relatives, medical professionals, the Public Trustee and OPA clearly support a finding, and we are satisfied, that SMYM is in need of an administrator to manage her estate. This need has been demonstrated by her grandiose plans, her delusional beliefs and her wish to incorporate a trust into which she would put her substantial and valuable landholdings for use of indigenous people, which she considers herself to be part of. She also has plans to establish a "natural learning and healing treasure trail project". She is suspicious, distrustful, accuses her daughter and ex‑husband of plotting against her and claims they owe her money. No clear proof of these assertions is before the Tribunal.
The most recent report from OPA did not reach a conclusion of whether or not there was a need for an administrator, preferring to rely on evidence at the hearing, due to a lack of recent medical evidence. However "the writer does maintain concern as to the proposal by the represented person to dispose of her ownership in her land and residence and whether she would be capable of making major decisions in her best interests pertaining to her capital assets when balanced with her income earning potential". The OPA report concludes that the writer would subsequently present a view of the best interests of the represented person after having considered the information presented at the hearing. The Tribunal has not received any subsequent report from OPA; however, neither has it specifically asked for it.
SMYM has assets and she had indicated an intention or wish to deal with those assets in a way which may not protect her in the long term. Bank accounts must be operated and day to day decisions made with regard to her property.
We are therefore satisfied that SMYM is in need of an administrator of her estate and pursuant to s 64 of the Act we declare that to be the case. SMYM is in need of a plenary administrator who might include some flexibility in the administration by allowing her to retain control over her visa credit card.

Is there a less restrictive means of meeting SMYM's needs?

Even where we are satisfied that SMYM lacks the necessary capacity to make reasonable decisions regarding her estate, and that she is in need of an administrator, we must not appoint an administrator if those needs could be met by other means less restrictive of SMYM's freedom of decision and action.
We are not satisfied that there is any less restrictive means available than appointing the Public Trustee to manage SMYM's estate. Previously, her daughter was her administrator but that ended in bitter conflict; OPA was then her administrator but that was revoked by the Board and the Public Trustee appointed. SMYM has substantial assets and needs someone with legal authority to operate her bank accounts and to manage those assets so that they are preserved in a way which best ensures that she will be looked after properly and adequately for the rest of her life.
As there is therefore no less restrictive means available, we find that there is a need for a plenary administrator and that the most suitable person to be the administrator continues to be the Public Trustee. The Public Trustee has indicated his consent and willingness to continue to act as SMYM's administrator. We are also satisfied that an appropriate period of time to make this order is five years from 28 May 2007.

Plenary order

We are satisfied that the range of functions required to be carried out on SMYM's behalf makes a plenary order appropriate.

Who is to be appointed?

The person to be appointed administrator must be someone who is either over 18 years or a corporate trustee, who has consented to act and who in our opinion will act in SMYM's best interests and is otherwise suitable to act as administrator.
It is clear from the history of this matter and SMYM's paranoid fear with respect to her ex‑husband and her daughter's so called manipulation of her estate, that it is in her best interests that the Public Trustee continue to be her administrator, despite her refusal to speak with the Public Trustee.

Period of the order

The Tribunal may make an order for a period not exceeding five years and in deciding for what period to make the appointment, we must observe all of the principles set out above and in s 4 of the Act. In this case the order will be for five years because we have no medical evidence before us indicating that SMYM has any insight into her illness or that she is likely to in the near future or that she is taking medication which would result in the control of her illness and lead to an ability to manage her own affairs. In any event, if this situation changes, then SMYM or the Public Trustee may apply for a review of the order under the Act.

SMYM's wishes

We have taken into account SMYM's clearly expressed wishes that she does not want anyone to be administrator of her estate. She is uncooperative with the Public Trustee and communicates with his representative only by letter. That aside, we are unable for the reasons given above to accede to her wishes as it is in her best interests that an administrator be appointed.

Orders

The Tribunal's orders therefore are:
1.SMYM's application under s 17A of the Guardianship and Administration Act 1990 (WA) is dismissed.
2.The Tribunal declares that SMYM is in need of an administrator of her estate.
3.The orders made by the Guardianship and Administration Board on 20 September 2004 are revoked and the following orders are substituted:
(i)The Public Trustee be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
(ii)This order is to be reviewed by 28 May 2012.

I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J ECKERT, DEPUTY PRESIDENT