T
[2020] WASAT 46
•30 MARCH 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: T [2020] WASAT 46
MEMBER: JUSTICE PRITCHARD, PRESIDENT
MS KY LOH, MEMBER
DR F NG, SENIOR SESSIONAL MEMBER
HEARD: 30 MARCH 2020
DELIVERED : 30 MARCH 2020
PUBLISHED : 6 MAY 2020
FILE NO/S: GAA 4443 of 2019
T
Applicant
Catchwords:
Administration - Whether represented person 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
Administration - Who should be appointed administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 3, s 17A, s 64
State Administrative Tribunal Act 2005 (WA), 27(2)
Result:
Orders affirmed
Public Trustee appointed plenary administrator
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
Solicitors:
| Applicant | : | N/A |
Case(s) referred to in decision(s):
FY [2019] WASAT 118
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression.)
Introduction
Mr T has applied pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) for the review of a decision made by a single Member of the Tribunal on 6 November 2019.
The orders made by the Member had two parts. First, the Member found that Mr T was unable to make reasonable judgments in respect of matters relating to his estate, and was in need of an administrator of his estate. The Member appointed the Public Trustee the plenary administrator of Mr T's estate (administration orders).
Secondly, the Member found that Mr T was incapable of looking after his own health and safety, making reasonable judgments in respect of matters relating to his person and was in need of oversight, care or control in the interest of his safety, and was in need of a guardian. The Member appointed the Public Advocate a limited guardian for Mr T (guardianship orders).
Mr T has sought a review only of the administration orders (Review Application). He does not seek a review of the guardianship orders. The Tribunal does not need to consider the guardianship orders for the purposes of the Review Application, and the guardianship orders will remain in place.
The Review Application under s 17A of the GA Act falls within the Tribunal's review jurisdiction. Consequently, the hearing of the Review Application was conducted as a hearing de novo - a new hearing.[1] The hearing was not confined to the matters that were before the Tribunal on the previous occasion. The Tribunal also heard evidence from a number of people who attended the hearing. The Tribunal is very grateful for that evidence which has been most useful. Most importantly, we have heard from Mr T himself. We have taken all of those views into account.
[1] State Administrative Tribunal Act 2005 (WA) (SAT Act) s 27(1).
The Tribunal’s role on the Review Application is to produce the correct and preferable decision as of the date of the review.[2]
The issue on the Review Application
[2] SAT Act s 27(2).
The issue before the Tribunal is whether an administrator should be appointed in respect of Mr T's estate. The requirements for the appointment of an administrator are set out in s 64 of the GA Act.
Important principles applicable to the Review Application
Before we address those requirements, it is appropriate to mention the fundamental principles under the GA Act which we have applied on the Review Application.
The Tribunal’s role at all times is to act in the best interests of Mr T.[3] In considering the evidence, we have proceeded on the basis that Mr T is presumed to be capable of managing his own affairs and making reasonable judgments in respect of matters relating to his estate.[4] However, we have also taken into account the evidence which is to the contrary, and we will address that evidence in a moment.
[3] GA Act s 4(2).
[4] GA Act s 4(3)(c), s 4(3)(d).
Furthermore, we have borne in mind the fact that we should not make an administration order unless we form the view that Mr T's needs could not be met by any other less restrictive means.[5]
Requirements of s 64 of the GA Act
[5] GA Act s 4(4).
There are three primary questions which arise on the Review Application:
1)Whether Mr T suffers from a mental disability;
2)Whether by reason of that mental disability Mr T is unable to make reasonable judgments in respect of matters relating to all or any part of his estate; and
3)Whether Mr T is in need of an administrator of his estate.
If the answer to those questions is 'yes', then we must go on to consider who should be appointed the administrator of Mr T's estate.
The evidence on the Review Application
The evidence before the Tribunal on the Review Application included documentary evidence, and oral evidence from a number of people who attended the hearing. The primary evidence in documentary form was a report from Dr R, who is a psychiatrist, who has most recently seen Mr T. We understand that Mr T's view is that Dr R is no longer treating him but nevertheless Dr R has given a very recent opinion in his report dated 31 December 2019. We have also taken into account Dr R's earlier reports recording his interactions with Mr T over the previous 12 months.
In addition, we have taken into account a report of Dr M dated 12 December 2019. Dr M is Mr T's general practitioner, and has known him for a very long time.
The Tribunal also had regard to service provider reports including from Ms L and from Ms W (who also gave evidence in person) and occupational therapy reports from Ms B and from Mr L. We have taken all of those into account.
In addition to the oral evidence given by Mr T himself, we were also assisted by the evidence of friends and supporters of Mr T, namely Pastor D, Mr A and Mr H. In addition to the evidence of Ms W, the Tribunal heard evidence from Ms D who is the National Disability Insurance Scheme (NDIS) support worker for Mr T. The Tribunal also received evidence from Ms V of the Public Trustee's Office, who is the officer with responsibility for Mr T's estate.
Whether Mr T has a mental disability
We turn to the first issue under s 64 of the GA Act, namely whether Mr T has a mental disability. That term is defined in the GA Act.[6]
[6] GA Act s 3(1) definition of 'mental disability'. See also FY [2019] WASAT 118.
Having regard to the documentary evidence before us, we are satisfied on the balance of probabilities that Mr T does suffer from a mental disability. Dr R's report indicates that Mr T has a schizoaffective disorder and that he has cognitive impairment due to strokes which he has suffered in the not too distant past.
That diagnosis of a schizoaffective disorder was disputed by Mr T. We acknowledge that he disputes that diagnosis. However, we note that Dr M is also of the view that Mr T has a condition which is likely to be burned-out schizoaffective disorder. As Dr M has pointed out, Mr T is also prone to hypomanic episodes in response to stress.
Whether by reason of that mental disability Mr T is unable to make reasonable judgments in respect of matters relating to all or any part of his estate
Having regard to the conditions from which Mr T suffers, we concluded, without any doubt, that Mr T is unable, by virtue of that mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate.
The kinds of difficulties that Mr T experiences as a result of his mental disability are relevantly of the kind that involve making judgments about the pros and cons of particular financial decisions and being able to reason about the pros and cons of financial decisions. The evidence that we heard from the witnesses confirmed for us that Mr T is a person who is unable to make reasonable judgments in respect of matters relating to any or all of his estate. The following examples will suffice to illustrate the point. Pastor D's evidence confirmed for us that while Mr T is able to amass large amounts of information, he is not in a position to reason through to the consequences of what that information might mean. Pastor D used the example of a phone debt, which he thought Mr T could manage, provided he had help from friends. However, Pastor D accepted that Mr T was totally incapable, by himself, of resolving a financial matter of that kind.
Ms W also usefully gave us the example of purchases which were apparently impulsively made by Mr T, on the basis that they were 'bargains'. Ms W used the example of a keyboard that Mr T bought, even though he cannot play a keyboard. She also referred to Mr T's purchase of two massaging armchairs which apparently were at a cost greater than he could reasonably afford.
Mr T's explanation for what he has done in the past, or what he would do in the future, if he bought things and then ran out of cash, was that he would sell those things at a loss, in order to recover some of the funds. That explanation illustrated Mr T's inability to reason through, at the outset, to whether a proposed purchase was a good idea, having regard to his very limited financial means.
Other examples given by Ms D also confirm that Mr T tends to engage in impulsive purchases. She used the example of his recent purchase of a camera for security purposes. Ms D expressed concern for the potential that Mr T would, as a result of such purchases, find himself in the position where he does not have sufficient money to purchase wholesome food for himself, which is an issue of particular concern given his other underlying health conditions.
Having regard to all of the evidence, we are satisfied that Mr T is unable, by reason of the mental disability we have described, to make reasonable judgments in respect of matters relating to all or any part of his estate.
Whether Mr T is in need of an administrator of his estate.
We are satisfied, without any doubt, that Mr T is in need of an administrator.
The witnesses we heard from, apart from Mr T himself, were all of the view that he is in need of an administrator of his estate.
Mr T is assisted in his daily living by professional support workers including Ms W and Ms D. At the review hearing, Mr T was also accompanied by a number of friends and supporters. It was apparent that he is in the extremely fortunate position of having others who are willing to provide him with what support and assistance they can.
However, none of those persons was in a position to take on the role of administrator of Mr T's estate. The reality is that to impose on any of those persons the more formal obligations of an administrator might jeopardise the informal friendships and supportive relationships with those persons which are so important for Mr T.
Who should be appointed administrator?
The question then arises as to who the administrator should be. Nobody else, apart from the Public Trustee, is available to act as the administrator of Mr T's estate, and so the position we have reached is that the Public Trustee should be appointed as the administrator of Mr T's estate.
We are of the view that there is no less restrictive means available to address this need. To the extent that Mr T has the ability to make reasonable decisions in respect of very simple financial matters, that can be facilitated by a small allowance from his pension each week (after his debts and ongoing expenses are paid) which can be made available to Mr T for his own discretionary spending. That is what is done by the Public Trustee at present.
We fully appreciate that Mr T does not want an administrator to be appointed. However, the Tribunal is under an obligation, under the GA Act, to make a judgment based on the evidence before us. The evidence very clearly points to the conclusion that an administrator should be appointed and that the Public Trustee should be appointed to that role.
We hope that over time Mr T might come to accept that his present financial circumstances are such that he may not be able to engage in all of the discretionary spending that he would like to, and that he might come to appreciate the assistance that the Public Trustee can provide to him, to ensure that he does not get into financial difficulties in the future. We also hope that Mr T will be able to maintain an appreciation of the fortunate position he is in, to have the support and friendship of so many people who wish him well and want to ensure that he can live life to the fullest extent possible.
Orders
We make the following orders:
1.That part of the orders made by the Tribunal on 6 November 2019 (administration orders) which are the subject of the review, are confirmed and the following orders are made.
2.The Tribunal declares that the represented person, Mr T is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)in need of an administrator of his estate.
3.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
4.The administrator is authorised to expend up to a total amount of $250.00 per annum on gifts on behalf of the represented person.
5.This administration order is to be reviewed by 6 November 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EH
Associate to the Honourable Justice Pritchard6 MAY 2020
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