SW
[2007] WASAT 285
•31 OCTOBER 2007
SW [2007] WASAT 285
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 285 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1654/2007 | 5 OCTOBER 2007 | |
| Coram: | MR J MANSVELD (MEMBER) | 30/10/07 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | The order for administration is revoked | ||
| B | |||
| PDF Version |
| Parties: | SW |
Catchwords: | Guardianship and administration Review of administration Presumption of capacity not displaced |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64, s 86, s 90 |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : SW [2007] WASAT 285 MEMBER : MR J MANSVELD (MEMBER) HEARD : 5 OCTOBER 2007 DELIVERED : 31 OCTOBER 2007 FILE NO/S : GAA 1654 of 2007 BETWEEN : SW
- Applicant
Catchwords:
Guardianship and administration - Review of administration - Presumption of capacity not displaced
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64, s 86, s 90
Result:
The order for administration is revoked
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Category: B
Representation:
Counsel:
Applicant : N/A
Solicitors:
Applicant : N/A
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 An order for administration was made for SW in December 2006. The Public Trustee was appointed the young man's plenary administrator. The application for administration had been made by SW's mental health team.
2 SW suffered from schizophrenia and concerns were raised that he could not properly negotiate the sale of his property due to the effects of his illness. After the administration order was made the Public Trustee completed the sale of the property.
3 About a year after being placed under administration, SW sought a review of the order. He was of the opinion that he was able to make reasonable judgments about his estate which now comprised mainly of the net proceeds of the sale of his property, about $134 500.
4 SW had planned to purchase a property in Tasmania for about $100 000 and also invest $20 000 on behalf of his two children who were in the care of his sister-in-law.
5 SW's application was supported by his mental health team and it was the assessment of his treating psychiatrist of five years that his plans were reasonable and that he had been making appropriate decisions for the previous 12 months.
6 The psychiatrist had also assessed SW as being aware of the consequences of the choices available to him.
7 The Public Trustee and SW's sister-in-law were of the view that the administration order should remain in place.
8 The Tribunal decided that there was insufficient evidence to displace the presumption of capacity that SW could make reasonable judgments about his estate.
9 In the case of SW such a determination was not without risk but it was based on the judgment that his right to autonomous decision-making outweighed his need for protection.
10 The administration order was therefore revoked.
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Background
11 These reasons relate to a review of an order for administration for SW made by the Tribunal on 5 December 2006, appointing the Public Trustee as his plenary administrator for a period of five years.
12 The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
13 SW has sought a review of the order pursuant to s 86 of the GA Act. Leave to apply for review is not required in this case.
14 The hearing for this matter was held on 5 October 2007 and was attended by SW, CH (sister-in-law), Dr AB (Psychiatrist) and HB (Social Worker). SZ, a friend of SW, attended for part of the hearing.
15 The Public Trustee did not attend but provided a written report to the Tribunal.
16 The determination of the Tribunal was reserved.
Decision of Tribunal
17 I have decided to revoke the order for administration. The reasons for my decision are as follows.
The relevant legislation
18 The review of the guardianship order falls in the Tribunal's original jurisdiction (s 90(2) of the GA Act).
19 Upon review the Tribunal may confirm the order, amend the order, revoke the order or revoke the order and substitute another order for it (s 90(1)).
20 Before the Tribunal can appoint an administrator for a person it needs to be satisfied that the person is unable, by reason of a mental disability, to make reasonable judgments in respect to matters relating to all or any part of his estate and is in need of an administrator of his estate (s 64(1) of the GA Act).
21 Mental disability is defined to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia (s 3 of the GA Act).
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22 Section 64(1) of the GA Act is read subject to s 4 which states the principles that shall be observed by the Tribunal in dealing with proceedings commenced under the GA Act (and which includes the review of the administration order made by SW).
23 The primary concern (principle) of the Tribunal shall be the best interests of the represented person (a person for whom a guardianship and/or administration order is in force) or a person in respect of whom an application is made.
24 Another principle of the GA Act is that a person shall be presumed capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal.
25 The remaining principles are that a guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action; that as far as possible the Tribunal should ascertain the views of the person in the consideration of any matter; if a guardianship order is made it shall not be a plenary order if a limited order would, in the opinion of the Tribunal, be sufficient to meet the needs of the person, and any limited order should be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
The question of SW's capacity
26 SW submits that he is capable of making reasonable judgments about his estate.
27 There is a presumption of capacity in the GA Act which must be displaced before the Tribunal can consider whether there is a need for an administrator (see above).
28 According to the Public Trustee, the estate of SW in the main comprises of cash funds of $134 500 being the balance of the proceeds of the sale of his property (a sale said to have been necessary because of SW's inability to meet his mortgage payments and completed by the Public Trustee under the current order for administration). The Public Trustee report shows debts of about $7500 and SW says that he also owes money to a friend, SZ
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- of about $2800 (at the hearing SZ said that the amount owing is the original loan of $5000).
29 SW says that he wishes to use the bulk of the funds to purchase a property in Tasmania. He has put that proposal to the Public Trustee but it has been rejected on the basis that properties for the expected price (about $100 000) would likely be in a remote location away from support services. Renting the property (as an investment) would also be difficult. In his report the Public Trustee states:
"… it would be irresponsible of me to allocate the bulk of [SW]'s savings to a potentially poor investment. The outcome of this type of investment would probably end up have (sic) a negative impact on his savings therefore affecting his standard of living."
30 SW disputes the Public Trustee's assessment. He has submitted advertisements for properties in Tasmania with prices ranging from $82 000 to $99 000. He says housing is currently very cheap in Tasmania and that the prospect for long-term capital growth is good. SW says that rental values (returns) are high, making the purchase a good investment if he chooses not to live in the property.
31 SW says that he is attracted to Tasmania because of the low price of housing and its beauty.
32 HB (social worker) supports SW stating that one of the properties mentioned is in Burnie which has a mental health clinic.
33 SW says that if he did not purchase a property he would place his funds in a managed share fund. He says he has obtained the advice of a financial planner with a major bank in this regard but is unable to secure a written report of the advice as it would cost him $300, which he does not have.
34 Dr AB, (SW's psychiatrist), states that the mental health team has expressed its opinion to the Public Trustee that SW's plans appear to be reasonable but has been advised that the purchase of property in Tasmania is not possible.
35 SW says that he intends to invest some of the funds ($20 000) for the benefit of his children (his two children are cared for by CH, his sister-in-law) and $20 000 to buy furniture and a motor vehicle. He might also travel to Ireland where he can stay with relatives, a fact which he says will minimise the cost of the trip. He will travel to Ireland if
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- sufficient funds remain after purchasing a property and making the investment for his children.
36 The Public Trustee, in his report, states that SW went on a holiday to the eastern states soon after the sale of his home and was intending to reside there with his brother. He is reported to have stayed with his brother for only a few days and, having to find alternative accommodation (and for other holiday expenses), was spending in excess of what the Public Trustee reckoned was a sustainable amount. The Public Trustee states that SW's response was "… that it didn't surprise him and he wasn't worried by this."
37 This, for the Public Trustee:
"… reinforces my belief that [SW] is unable to manage his finances and show any awareness of the need to have savings for future needs."
38 SW admits that the holiday was expensive but:
"… I did do a lot of things that I haven't done before, like parachuting, you know, but also, the trouble is just getting hotels because it was hard to get hotel accommodation because no-one wanted to deal with [the Public Trustee]." (T:13)
39 CH says that SW was "kicked out" by his brother; SW says that he left his brother's residence because there was marijuana in the house and "I don't touch drugs any more." (T:18)
40 The Public Trustee states that SW has requested expensive items such as a computer but that the requests have been declined because "… it is questionable whether [SW] requires such goods" and there is also the concern that the items will be pawned or not be sufficiently secure due to his difficulty in finding secure accommodation.
41 SW says that the attitude of the Public Trustee (and the way his funds have been managed) has caused him much distress and frustration and that it has lead him to become depressed.
42 SW points to a fact (confirmed by HB) that he was able, by his own actions, to secure a sale price for his home of $30 000 greater than the offer that the Public Trustee was allegedly going to accept. He also says that he is unable
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- to secure goods at a discount because of what he views as the rigid practices of the Public Trustee when expenditure is requested.
43 CH submits that the administration order should continue. If the administration order was revoked and the funds returned to SW, she believes he would "blow the money" on drugs and alcohol. She states:
"When [SW] gets down, he mixes with the wrong crowd. That would be my concern. Yes, I believe he needs to buy another house. I've always said that [but] when he starts mixing with some of the people from his past and when he has got money, they all gravitate towards him and that's when - whether he spends it on himself or the others for drugs." (T:22)
44 CH also says that she obtained custody of SW's children at the instigation of his late spouse because he is not capable of looking after them. She believes he is at times not capable of looking after himself and that some days he is "not in control".
45 SW says that he has been under a great deal of stress and that he gets despondent. He wants to make a fresh start but the administration order is preventing him from doing so. He is not planning to associate with the people to whom CH refers.
46 Because of the stress and frustration SW says he might "yell out" and make "idiotic threats" although he does not act-out physically (CH mentions a threat made by SW to his father and step-mother that is the subject of court action). Despite this SW submits that his judgment about his financial situation is not impaired.
The evidence of Dr AB (psychiatrist)
47 The original application for administration in 2006 was made by Dr AB's mental health team.
48 In his written report to the Tribunal dated 16 October 2006, Dr AB stated that SW suffered from schizophrenia with paranoid issues and cannabis abuse. At the time of the report SW was:
"… not very organised. Though he is taking [a] small dose of medication, [he] has plans of selling his house and moving away … [He is] likely to be lost to follow up. It is my opinion that he can't be treated involuntarily as [his] risk to self, other[s], and [his] reputation, is unclear. Poor judgement re house sale
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- could be secondary to personality attributes, guided by immediate financial needs."
49 Dr AB was unsure whether SW was then able to make reasonable decisions in relation to his financial affairs and further stated in his report:
"Going ahead with sale of [his] house which he jointly owns with [public housing authority]. From information I have, family members are against this sale. There is a possibility he may end up at a disadvantage financially if he does not understand [the] consequences of his decision."
50 In his report for the current hearing dated 28 August 2007, Dr AB states that he has known SW for five years. He confirms the diagnosis for SW of paranoid schizophrenia with a past history of polysubstance abuse, mainly cannabis and occasionally amphetamines.
51 Dr AB states:
"[SW] has chronic underlying delusions. Superficially [he] can present well at times. Over [the] last few months [he has been] in a stable deficit state [with] poor personal judgement and social judgement. However, [he] has reasonable plans of investing [his] money in property. [He] is staying from illicit substances currently. Oral medication has minimal beneficial affect in control of [his] symptoms. [He] needs [mental health] follow up even if he is not compliant [with] medication. [He] responds well to [the] support provided.
52 In his written report Dr AB states that he is not sure (as in 2006) whether SW can make reasonable decisions about his financial affairs and states:
"[He] has appropriate plans to buy cheap property interstate. [He] wants to buy a computer, travel interstate [and] maybe relocate. [His] plans appear reasonable. [SW] was put on an [administration] order in December 2006 as the treating team felt he might not be able to negotiate the sale of his house appropriately. Now that [the sale] has been completed and [SW] is guaranteeing to spend his money wisely, it is reasonable to give him a chance to manage his own finances."
53 In his oral evidence Dr AB says that he stands by both of his reports. He says that he was concerned about the sale of SW's home but that is now settled. In fact SW played a part in the sale and was able to secure a better
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- price for the property than was the Public Trustee.
54 Dr AB states that when SW developed the plan of purchasing a property in Tasmania for $100 000, he had hoped that the Public Trustee:
"… would have [had] the resources to focus [SW]'s abilities and allow him to do that. I mean I would have hoped that in an ideal situation that [would have been] possible." (T:8)
55 In respect of the question of whether SW can make reasonable judgments about his estate, Dr AB states:
"… we obviously have given this a lot of thought. We have observed through his behaviour since he has been on the [administration] order. He has gone on a holiday and we believe that expenses have been reasonable … I think [SW] is aware of the choices available [and] the consequences of whatever choice he makes." (T:11)
56 Dr AB conditions this assessment:
"… with the caveat that his mental state does change - well, from time to time it does change but based on his behaviour over the last year I would say that, yes, he is making appropriate decisions." (T:12)
57 Dr AB is of the view that SW's mental state was much worse when the application for administration was made in 2006, than is his mental state currently. As to the risk stated by CH that SW will revert to old associations if he has access to his funds, Dr AB states:
"If [SW] has access to the funds and if he then engages in a lifestyle that is not conducive to his mental illness then we will have - I mean, it comes to the attention of mental health, then appropriate things will have to be done again, I suppose." (T:24)
The Tribunal's findings and decision
58 I am satisfied that SW has a mental disability of the type contemplated by the GA Act (s 3 and s 64(1)(a)). He suffers from a mental illness, namely paranoid schizophrenia.
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59 I am not satisfied, however, that the presumption that SW is capable of making reasonable judgments in respect of matters relating to his estate, is currently displaced by the evidence before me (s 4(2)(b) and s 64(1)(a)).
60 In making this finding, I rely principally on the evidence of Dr AB. He has been SW's treating psychiatrist for five years. He supported the making of the order for administration in 2006 and assesses SW's mental state as having improved since the order was made. Dr AB states that SW's mental state fluctuates but based on his behaviour over the last 12 months, considers him able to make appropriate decisions.
61 Dr AB is of the view that the plans that SW has articulated, particularly the purchase of property in Tasmania and the investment for his children, as being a reasonable use to which the funds could be put.
62 CH, the sister-in-law of SW, submits he will revert to old behaviours and will not use the funds as he says but will spend the funds on his friends, alcohol and drugs.
63 SW says that even when subject to the administration order he has been making appropriate financial judgments. He points to the higher price he arranged for the sale of his home than that obtained by the Public Trustee. He admits that the trip he made to the Eastern States was expensive but says he was able to achieve some things he had wanted to do. He says also that the cost of the trip was high because some accommodation providers would not accept his custom for the reason that payment needed to be made by the Public Trustee as his administrator. He says that he has sought the advice of a financial planner in respect of his plans for the investment of the funds.
64 The fact that SW might have reasonable plans for the use of his funds is no guarantee he will use the funds for those purposes. Dr AB, however, assesses SW as currently being aware of the consequences of the choices he makes.
65 If I accept that assessment and I do on the evidence, then it follows that should SW expend his funds contrary to what he has planned, that decision might be considered unsuitable but it would not be an incapable decision.
66 I accept that SW's illness is chronic in nature and that he is not entirely symptom free at any time. I also accept that the illness worsens from time to time and when it does SW's ability to make reasonable judgments about aspects
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- of his life will become impaired. This is the caveat of which Dr AB speaks in his assessment of SW's ongoing mental state.
67 The finding I have made (that the presumption of capacity has not been displaced), is determined on what has been put to me. I am guided by the principle of the GA Act that takes as its starting point that a person is capable until the evidence shows otherwise. In the case of SW such a determination is not without risk but is based on my judgment that his right to autonomous decision-making presently outweighs his need for protection.
68 I agree with Dr AB that SW will require the ongoing support and monitoring of mental health services to give him the best chance of making decisions that are in his best interests.
69 On the basis of my finding I revoke the order of 5 December 2006.
Order
- 1. The administration order of 5 December 2006 is revoked.
I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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