TL - [2011] WASAT 42 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: TL [2011] WASAT 42

MEMBER: MS F CHILD (MEMBER)

HEARD: 14 DECEMBER 2010

DELIVERED : 14 MARCH 2011

FILE NO/S: GAA 2651 of 2010

BETWEEN: TL
Applicant

Catchwords:

Guardianship and Administration Act 1990 (WA) - Review of administration order - Diagnosis of longstanding mental illness - Need for an administrator - Vulnerability of the represented person to exploitation - Independent administrator needed to safeguard the estate of the represented person - Public Trustee reappointed

Legislation:

Guardianship and Administration Act 1990 (WA), s 64, s 86

Result:

Public Trustee confirmed as administrator

Category: B

Representation:

Counsel:

Applicant: Self-represented

Solicitors:

Applicant: Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

A woman with a diagnosis of a longstanding chronic mental illness sought revocation of the order which appointed the Public Trustee as the administrator of her estate. Although the woman's psychiatric condition had stabilised with ongoing treatment and medication, the Tribunal determined she remained a person for whom an administration order could be made as she was vulnerable to exploitation because of her disability. The history of the woman's inability to protect her own interests indicated that she needed an administrator of her estate to protect her financial interests. The Public Trustee was confirmed as the administrator of her estate. A limited administration order was made, as this provided the necessary protection of her assets, but resulted in a reduction in fees charged, as the Public Trustee no longer collected her partCentrelink pension.

Introduction

These written reasons relate to a decision of the Tribunal made on 14 December 2010 to confirm the appointment of the Public Trustee as administrator of the estate of TL (represented person). The decision followed a review pursuant to s 86 of the Guardianship and Administration Act 1990 (WA) (GA Act) of an order dated 18 May 2010 by which the Public Trustee was appointed plenary administrator of the estate of the represented person.
The application for review was filed with the Tribunal on 8 September 2010. The application is in the name of the represented person but it is understood that her daughter, ML, assisted her, as in the past, with the completion of the application form. Her son, IL, is named in the application as her representative. The application for review was accompanied by a 'Doctor's Guide', completed by Dr M, the represented person's general practitioner, which states that the represented person has no impairment of her cognitive ability or mental function.
The application for review seeks the urgent removal of the Public Trustee as administrator of the represented person's estate, as it is said to be making the represented person 'miserable'. The appointment of the Public Trustee as administrator is said to be intrusive and to restrict the represented person's freedom. The application submits that the represented person has successfully preserved her assets without an order in the past and will not give her assets to anyone (in the future).
The review was first heard on 27 October 2010, but that hearing was adjourned, as an interpreter had not been arranged for the represented person, as English is not the represented person's language. The hearing was reconvened with an interpreter present on 14 December 2010. The represented person, her daughter, ML, her son, IL, and the represented person's psychiatrist, Dr SJ, attended by videoconference from the country town in which they live. A representative of the Public Trustee and the interpreter attended at the Tribunal's premises in Perth.
ML and IL submit that there should be a diminished role for the Public Trustee, limited to maintaining caveats on the rental properties jointly owned by the represented person and her spouse, to prevent the property being sold in the lifetime of the represented person. They say that the Tribunal should monitor the represented person's finances, or, alternatively, that the Public Trustee act as an attorney, under a power of attorney. IL argues that although present in the past, domestic violence is no longer an issue, and the continued appointment of the Public Trustee has caused tension and disharmony between his and ML's parents, and stress for the whole family. IL submits that the represented person's spouse does not agree the represented person should receive a partCentrelink pension 'as other people need it more than her'. IL argues that as the represented person's mental illness is under control, she should manage her own affairs.
In his report to the Tribunal, dated 25 October 2010, Dr SJ, the represented person's treating psychiatrist, notes that he has been following up the represented person since 31 July 2009. He reports:
…
[s]he is fairly stable in mental state and well[-]adjusted in her family situation since moving to Kalgoorlie in 2009. She stays with her husband, son and daughter, and they are managing their affairs well as a family. I have had several family meetings and also discussions with her husband and I am able to see a fairly supportive approach towards her welfare by her family at this stage. I have noticed that [the represented person] and her family do not want to have an administration order[,] as they feel they can manage their affairs. [The represented person] has a fair understanding of her shares in [the] combined assets of the family. However, she remains vulnerable of [sic] exploitation by others and I am of the opinion that [that] vulnerability of [sic] exploitation by others will persist in view of disability for the rest of her life.
Following oral evidence and submissions made in the hearing, the Tribunal confirmed the Public Trustee's appointment as administrator of the estate of the represented person.
Brief oral reasons for the reappointment of the Public Trustee were delivered at the conclusion of the hearing on 14 December 2010. The question of the final order to be made (and consequently the fees to be charged by the administrator) was adjourned for a submission to be made by the Public Trustee.
As the objections of the represented person and her family to an order reappointing the Public Trustee as administrator were well known, and due to the distress caused to the represented person from appearing at hearings, the Tribunal determined that the matter should be finalised on the papers without reconvening the hearing. This decision was announced at the conclusion of the hearing.
Orders reappointing the Public Trustee as limited administrator of the estate of the represented person with all the powers and duties of a plenary administrator, save for the collection of the represented person's Centrelink pension income, were issued on 29 December 2010.
In the oral reasons delivered, the Tribunal referred to the history of the matter. The following summarises that history.
The represented person was first made subject to an administration order in 2006. The order was made following an application by the Swan Adult Mental Health Team who had been involved in her psychiatric treatment and care. The represented person was said to have been separated from her spouse since 1998, against a background of allegations of domestic violence, with only intermittent financial support from him. She was said to be living with her daughter and her daughter's husband who were disability support pensioners.
At the time of the original application, a report dated 4 April 2006 from Dr NL, a psychiatrist, notes 'paranoid schizophrenia, well established since the 1980s'. The represented person was said to be incapable of making decisions about her health care, her living situation and her financial affairs.
The Public Trustee was appointed plenary administrator of the represented person's estate in May 2006, with review of the order set for May 2011.
An application was filed in August 2006 for review of the order pursuant to s 86 of the GA Act. The application for review was in the name of the represented person but completed by her daughter, ML, since it is understood that the represented person cannot read or write in English. On review, the order was confirmed.
A further application pursuant to s 86 of the GA Act seeking review of the order was made in May 2007. The order was again confirmed.
At the time of the 2007 review hearing, the Public Trustee reported that the represented person was the joint owner, with her estranged spouse, of three properties in a country town where the spouse continued to live. The spouse at the time of the review was paying $433 per fortnight to the Public Trustee as the represented person's share of the rental income in those properties. In the hearing, the Tribunal heard that the represented person was living with her daughter, who was separated from her husband, in impoverished conditions. The administration order was confirmed for review in 2011.
The Public Advocate was appointed guardian of the represented person in January 2008, following an application from the Swan Adult Mental Health Team. At the time of that application, the represented person and her daughter were reported to be living in a car.
Further applications for review of the administration and guardianship orders were filed with the Tribunal on 5 May 2008. At the hearing of the review applications, the social worker from the Swan Adult Mental Health Team described the living conditions of the represented person as 'total squalor'. The daughter confirmed that she and the represented person were living in a kombi van but there were no alternatives due to the cost of rent.
In the course of the hearing of the 2008 review, IL, the son of the represented person who appeared at that hearing by telephone, proposed that he be appointed guardian and administrator for his mother, and that his mother's interest in the rental properties be transferred to him. The estranged spouse of the represented person, who also appeared by telephone and with whom the son lived, supported the son's appointment for this purpose. The spouse said he would not transfer his interests in the properties to his son as he was not yet ready to retire. The daughter of the represented person, who accompanied her to the hearing, also supported the transfer to the son on the basis that the represented person had left the properties to the son in her will. The son said that if he was appointed guardian and administrator, he would travel to Perth in an effort to improve his mother's and sister's circumstances. The Tribunal confirmed the appointments of the Public Trustee and the Public Advocate to May 2013.
A further application for review pursuant to s 86 of the GA Act, filed immediately following the hearing, was dismissed as lacking in substance.
Another application pursuant to s 86 of the GA Act was filed in March 2009 and heard in May 2009. In the hearing, the represented person's comments were not responsive to questions asked and appeared to have delusional content. The appointments of the Public Trustee as administrator of the estate and the Public Advocate as limited guardian were confirmed to 2014.
Further applications pursuant to s 86 of the GA Act were made in March 2010 in the name of the represented person for review of the orders. A report provided by Dr SJ, the treating psychiatrist, stated that the represented person was capable in all spheres. The Tribunal provided copies of previous medical reports which had been submitted to the Tribunal to Dr SJ. At the hearing and, in a further report, he did not maintain this position. In the hearing he noted that the represented person was receiving major antipsychotic medications. He described the represented person as 'doing well' and that he did not think she had '[psychotic] symptoms', but that 'she does require help day to day and has limited capacity, that she can't form relationships and can't assert herself, and is at risk of exploitation and is very vulnerable'.
On review, the guardianship order was revoked, as the represented person had returned with her daughter, in July 2009, to live in the country town with her spouse and son in their family home. This move had been made without reference to the Public Advocate, who was appointed her guardian, to decide where she was to live. The Public Advocate later consented to the return of the represented person to living in the family home. The representative of the Public Advocate supported the revocation of a guardianship order, as although in her submission the represented person remained someone for whom orders could be made, there was no need for the represented person to have a guardian since her needs were being met informally. She was reported to be settled at home with her family and was being taken regularly to appointments with mental health services and her general practitioner by her daughter and her son.
The Tribunal accepted the submission and revoked the guardianship order, but confirmed the appointment of the Public Trustee as administrator of the represented person's estate. The administration order was to be reviewed by May 2011. The present application for review of that order was filed in September 2010
All the previous medical reports submitted in respect of the represented person are before the Tribunal for the purposes of the present review.
Dr NL's report, referred to above, notes that the represented person received intermittent payments of $50 from her exhusband, had accrued a telephone debt and a considerable Centrelink debt, and had lost her pension. Dr NM, in a report dated 21 June 2007, describes the represented person's diagnosis as schizoaffective disorder, first diagnosed in 1986. The doctor notes that the represented person had 'limited understanding of her financial affairs as confirmed by [her] inability to resolve [sic] her financial history'. He notes:
I don't believe [the patient] has good insight into her financial situation and has not made correct decisions in this regard in the past. Has not attended appropriately to the consequence of her financial plight and never reported the life issues to her treating team. I have reliable collateral [evidence] that [the represented person] is currently living in poverty[]like conditions with her daughter without running water and sanitation …
Dr CB, a senior medical officer in psychiatry, in a report dated 16 March 2009, notes that she had known the represented person for two years, and that the represented person had a diagnosis of schizoaffective disorder which was a chronic long-term impairment. She described the represented person as 'unable to function independently, [who] at times may need hospitalisation for acute relapse, deterioration (in her condition) due to severe neglect'. The doctor considered that the represented person was incapable of personal health care decision-making, had a poor standard of personal hygiene, was lacking in insight into the need for medical treatment and was prone to selfneglect. She was unable to make reasonable decisions about her finances. She was described to be:
[l]iving with her daughter who also suffers from a mental illness. She had difficulty maintaining minimum living standards, poor command in English, but not greatly assisted by an interpreter because of distorted thought processes, vulnerable to exploitation, relies on the daughter for most decisions …
In the course of the number of hearings before the Tribunal, the represented person has at times been distressed by the proceedings. It appears that she does not understand the process or the purpose of the hearings and repeatedly comments, 'I am not a criminal'.
The following is an edited version of oral reasons delivered at the conclusion of the hearing on 14 December 2010.

Reasons

The represented person has a diagnosis of a mental illness. There has been a history of domestic violence which was confirmed in the hearing. Her mental illness and history of chronic illness is described by the psychiatrists as a longstanding chronic disability which means that she requires ongoing psychiatric treatment. The evidence is that even when she is well that is, not having psychotic symptoms she has an impairment of her thinking.
In the evidence that was given at the last review which occurred in May 2010, Dr SJ, the treating psychiatrist, reported that there were problems with an inability of the represented person to assert herself, to form relationships, and an increased vulnerability to exploitation and a vulnerability to relapse of her illness. The medical evidence before the Tribunal for this review includes Dr SJ's report, produced for this hearing, and previous reports, including one from 2009 from Dr CB. Her report notes the represented person has a longterm chronic impairment, 'that she was unable to function independently at times; may need hospitalisation for acute relapse'.
Dr CB had said at that time the represented person was vulnerable to exploitation and relied on her daughter for most decisions. That was consistent with the report from Dr BM in 2007 which said that the represented person was unable to relate [sic] her financial history. He reported, 'I don't believe the patient has good insight into her financial situation'. That situation has improved, as Dr SJ now reports that the represented person has a 'fair understanding' of her share in the combined assets of the family. But he goes on to say that she remains 'vulnerable [to] exploitation by others'.
Section 64 of the GA Act provides that an administrator may be appointed for someone who is unable, by reason of a mental disability, to make reasonable judgments about their estate. The history has been of the represented person being unable to protect her own interests over a period of years, to the point where she was at times destitute and living in a car.
That situation has improved markedly, in that she has now returned to live in the family home, and financial arrangements are in place in which she receives a share of the rental income and a partCentrelink pension.
The evidence from Dr SJ is that the represented person's mental health has also improved. However, she remains a person for whom an order can be made because she has a diagnosed mental illness and, by reason of that illness, her decisionmaking is impaired to the extent that she is not able to protect her own interests. She remains in need of an administrator. She requires an independent administrator to ensure that she continues to receive her share of the rental income and her entitlement to Centrelink benefits. I am not satisfied that, if I revoke the order, either of those two things would happen for the represented person. I make that statement based on the history in relation to the financial support of the represented person prior to the appointment of the Public Trustee as her administrator, where it was admitted that the represented person was living in a car. The evidence at the time from the social workers from Swan Adult Mental Health Team was that she received only very intermittent financial support. The financial support arrangements were regularised when the Public Trustee became involved and obtained the represented person's share of the rental income and, through its efforts, established her entitlement to Centrelink benefits, which had been suspended, as there was an investigation being conducted by Centrelink for an overpayment. The maintenance or the continuation of that Centrelink entitlement requires the involvement of the Public Trustee to ensure that the reporting obligations of all beneficiaries are maintained. I am not satisfied that that would happen without the involvement of the Public Trustee because of the attitude of the spouse of the represented person to the Centrelink entitlement and, what I take to be, an inability of other family members to oppose his views.

There is also the issue of the interest of the represented person in the properties in the town in which they live, both the property in which she lives with the family and the rental properties.
Again, based on the history of the lack of financial support and the proposals that those properties be transferred out of her name, I am not satisfied that if I revoke the order for the appointment of the Public Trustee as administrator of her estate, the represented person's interest in those properties would be protected. I base that judgment on the history of this matter before the Tribunal, where it was clear that the represented person's interests were subservient to others.
Fortunately, the represented person is now living at home and is supported by her family, and the mental health clinic staff are monitoring her situation. The case manager can be involved, the doctor is involved, and the children take her to medical appointments. However, based on the history I am not satisfied that there are less restrictive alternatives that would properly protect the interests of the represented person in her estate other than the appointment of the Public Trustee as the administrator. Even if the represented person was capable of giving an enduring power of attorney as reported by Dr M, the general practitioner, I would not consider that that was an effective means to protect her interests.
I do not place weight on the general practitioner's report, particularly because it does not provide any information as to how capacity was assessed and is contrary to all of the other medical evidence before me.
Family members have agreed at the hearing that there is a need to continue the caveats (registered by the Public Trustee on the properties in which the represented person has an interest) and to have some monitoring of the financial arrangements for the represented person. The only way that can be achieved is through the appointment of the Public Trustee as the administrator of the estate. I do not consider that there are any less restrictive means by which the Public Trustee could maintain the caveats other than by his appointment as the administrator. The Tribunal does not play a role in monitoring, as was suggested by family members. The management of financial affairs is a matter for the Public Trustee as the appointed administrator. Monitoring of those financial affairs is part of that role.
Unfortunately, the history and the vulnerability of the represented person mean that she does need an administrator of her estate and there is noone other than the Public Trustee who can effectively play that role, independently protecting the interests of the represented person. That comes at a price to the estate because the Public Trustee charges fees. The represented person must pay for the services of the Public Trustee which she requires to protect her estate.
Because of the structure of the fees charged by the Public Trustee, the protection required might be able to be achieved by a limited order which includes the current assets under administration. The Public Trustee is asked to provide an estimate of the different fees which might be charged according to the order made. Once that submission is received the review will be concluded on the papers.
Based on the medical reports going back to 2006 and most recently from Dr SJ, a consultant psychiatrist who is her current psychiatrist, that the represented person's vulnerability will persist as a disability for the rest of her life, I consider that the order should be made for the longest period possible, being five years.
Following the hearing, a further written submission was received from the spouse and the represented person, but probably written by their daughter. It reiterated much of the material put in the hearing. Following an estimate of fees provided by the Public Trustee, the Tribunal issued orders that the Public Trustee be reappointed the limited administrator of the estate of the represented person, with the powers and duties of a plenary administrator, save for the collection of the represented person's Centrelink income. By this income being paid directly to the represented person, fees of around $3,211 were saved annually.

Orders

On an application for review under s 86 of the Guardianship and Administration Act 1990 (WA) of an order dated 8 May 2010 concerning the represented person, TL, heard before Member F Child on 14 December 2010, it is ordered that:
1.The order is revoked and an administration order in the following terms is substituted for it:
The Public Trustee of 565 Hay Street, Perth, Western Australia, is appointed limited administrator of the estate of the represented person with all the powers and duties of a plenary administrator, save the collection of the represented person's Centrelink income.
2.This order is to be reviewed by 5 January 2016.

I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER