VD - [2023] WASAT 19 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   VD [2023] WASAT 19
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
MS A KING, MEMBER
MS R BUNNEY, MEMBER

HEARD:   21 FEBRUARY 2023
DELIVERED          :   7 MARCH 2023
PUBLISHED           :   16 MARCH 2023
FILE NO/S:   GAA 4421 of 2022

VD
Applicant

Catchwords:

Guardianship and Administration Act 1990 (WA) s 17A – Review of decision by single member of Tribunal – Appointment of a guardian and administrator

Legislation:

Guardianship and Administration Act 1990 (WA) s 3, s 4, s 17A(1), s 43, s 44, s 64(1), s 68
State Administrative Tribunal Act 2004 (WA) s 27(1), s 27(2)

Result:

Guardianship and administration orders revoked
Private guardian appointed
Limited administrators appointed in respect of different parts of RP's estate

Category: B

Representation:

Counsel:

Applicant

N/A

Solicitors:

Applicant

In Person

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered extemporaneously on 7 March 2023 and have been edited from the transcript).

Outcome of review

The panel has decided that the correct and preferable decision to reach today is to change the guardianship and administration orders so that SLN is to be the limited guardian for VD, and GS, her uncle, is to be the limited administrator for VD.
Perpetual Trustee Company Limited will remain as limited administrator for the purposes for which it was appointed administrator in the previous orders.
There will be limited functions conferred upon SLN as guardian and GS as administrator.

Review application

VD has applied pursuant to s 17A(1) of the Guardianship and Administration Act (GA Act) for a review of a decision made by a single member of the Tribunal, Senior Sessional Member Lang, on 20 September 2022.
In that decision, Senior Sessional Member Lang declared that VD is:
(a)unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care, or control in the interests of her own health and safety; and
(f)in need of a guardian.
Senior Sessional Member Lang made orders appointing VD's grandmother, LD, as a limited guardian with particular functions, and appointing her as limited administrator with particular functions. The learned Senior Member also appointed the Perpetual Trustee Company Limited as limited administrator with particular functions relating to superannuation.
In these proceedings, it was accepted by VD and by all interested parties that she is in need of an administrator and guardian to make certain decisions for her.
The issue on review was who should be appointed to those positions.

The nature of the review

Section 17A(1) of the GA Act permits any party who is aggrieved by a determination made by the Tribunal consisting of one member to request the President of the Tribunal to arrange for a full Tribunal to review that determination.
Reviews come within the Tribunal's review jurisdiction.
In exercising its review jurisdiction, the Tribunal conducts a hearing de novo; that means that we are not confined to the matters that were before the Tribunal on the first occasion: s 27(1) State Administrative Tribunal Act 2004 (WA) (SAT Act). We are permitted, and did consider new material, including the evidence that we received in the course of the hearing.
The purpose of a review is to produce the correct and preferable decision at the time of the decision on review: s 27(2) SAT Act.
Before turning then to the specific facts of this case, it is important to note that in dealing with proceedings under the GA Act, the Tribunal is required to observe the principles which are set out in s 4 of the Act. First, that the primary concern of the Tribunal is the best interests of any represented person: s 4(2) GA Act. So, what we are most concerned about is what is in VD's best interests.
In addition, every person is presumed to be capable, among other things, of managing their own affairs and making reasonable judgments about matters relating to their estate unless the contrary is proved to the satisfaction of the Tribunal: s 4(3) GA Act.
That presumption applies in respect of every application under the GA Act. Section 4(7) also tells us that in considering any matter relating to the represented person the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the represented person.
Section 4(4) provides that an administration order should not be made if the needs of the proposed represented person could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
Section 4(5) says that a plenary guardian shall not be appointed if the Tribunal is of the opinion that the appointment of a limited guardian would be sufficient to meet the needs of the represented person.
Finally, s 4(6) provides that any order appointing a limited guardian or an administrator should be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
They are the principles that have guided us to our decision today.

The evidence before the Tribunal on the review application

We turn next to identify the evidence to which we had regard in making our decision today. Firstly, VD attended the hearing and was able to convey to us her views and wishes.
ME was with VD as her advocate, but that was almost unnecessary as VD was very clear with us about her needs, her views and her wishes and was able to express those very well.
A number of other interested people also attended the hearing and gave evidence: GM (who is VD's partner), LD, SLN (who is VD's maternal aunt), GS (who is her maternal uncle), SC of Perpetual Trustee Company Limited which administers the settlement funds that were paid to VD as a limited administrator with particular functions.
We also heard evidence from JP, who is a senior investigator from the Office of the Public Advocate. And we heard from PR from the Public Trustee. JB, who is the case coordinator for VD, also gave evidence.
In addition, there was evidence before the Tribunal in documentary form. We had regard to:
(i) a submission dated 7 November 2022 from VD herself;
(ii) a submission from GM and SLN that was collated by ME;
(iii)emails from ME to JP dated 14 November 2022; and
(iv)material that was provided by GM under cover of an email to the Tribunal dated 27 June 2022 which included a statement from VD dated 24 June 2022, and his own statement dated 24 June 2022.
There were also various documents that were provided by medical practitioners and health professionals who had treated VD. They included:
(i)a report of clinical psychologist, Mr C, dated 12 August 2022 and 29 August 2022;
(ii)a report of Dr R dated 30 July 2022;
(iii)a report from Dr B dated 3 May 2022; and
(iv)a report from associate professor MCD's care at various times.
JB, the case coordinator from Venu International, provided reports dated 31 October 2022, 30 May 2022, 13 July 2021 and 23 August 2021.
We also have in evidence and have had regard to:
(i)a Senior Investigator Advocate report dated 4 November 2022;
(ii)a Public Trustee report dated 19 July 2021;
(iii)a report from the Public Trustee dated 11 November 2022;
(iv)a letter from the Public Trustee dated 11 November 2022, and
(v)an email from MC of Perpetual Trustee Company Limited dated 11 November 2022 to the Public Trustee.
Finally, we had regard to everything that was said in evidence at the hearing before the learned Member on 29 June 2022. The transcript of that hearing formed part of the Hearing Book.

Appointment of guardian

The appointment of a guardian requires the Tribunal to be satisfied of matters which are set out in s 43 of the GA Act. It says that:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40
(a) has attained the age of 18 years;
(b) is —
(i) incapable of looking after his own health and safety;
(ii) unable to make reasonable judgments in respect of matters relating to his person; or
(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
(c) is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint —
(d) a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e) persons to be joint plenary guardians or joint limited guardians,
as the case may require, 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 a guardian, it shall also declare the matter or matters set out in paragraph (b) of that subsection of which it is satisfied.
…
(3)An appointment under subsection (1) or (2a) may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit.
(4)An order appointing a limited guardian shall specify the functions that are vested in the limited guardian under section 46.
If the Tribunal is satisfied that the represented person is over the age of 18 years, is either incapable of looking after their own health and safety, is unable to make reasonable judgments in respect of matters relating to their person or in need of oversight, care or control in the interests of their own health and safety or for the protection of others and is in need of a guardian, then the Tribunal is required to consider subsidiary questions such as who should be appointed the guardian.
We will look then at each of those criteria.

Age

VD is well over the age of 18. We mean no disrespect in saying that, but VD's birthday is April 1988 so that first criteria is satisfied.

Incapacity

The next criteria is about whether or not VD is incapable of looking after her own health and safety or unable to make reasonable judgments about herself, or is in need of oversight, care, or control in the interests of her own health and safety, or for the protection of others. It was not in issue in this case, and the evidence makes clear that VD is someone who is in need of a guardian. That was accepted by all parties. Regrettably, VD was involved in a terrible car accident some years ago and has an acquired brain injury as a result of that accident. Mr C, the clinical psychologist, says as a result of that acquired brain injury, VD cannot make medical and treatment decisions in her own best interests or make decisions regarding accommodation.
In contrast, Dr R said that VD could make medical treatment decisions but was not capable of making decisions in relation to accommodation and services because the brain injury has caused impairment in her executive functioning, short‑term memory, attention and concentration and has negatively impacted upon her ability to plan activities and tasks, her judgment, and her ability to regulate both her mood and impulsivity.
Dr B's report says that VD is capable of making decisions with the assistance of other guardians, health professionals, and related service providers.
JB's written report states that VD has problems understanding complex medical advice and direction and that she requires assistance with comprehension, working memory, and knowledge retention. JB gave oral evidence that VD wants to be more involved in decision‑making but that she is very impulsive, and the time it takes her to process things and her short-term memory deficit often lead to frustration and mood swings. JB reported that VD can identify problems, like not having enough money for something she wants in her bank account, but readily hands those problems over to her team to solve and expects those things to be done immediately for her.
JB says that VD is extremely vulnerable and has high care needs and, in her view, is in need of both an administrator and a guardian. She reported that VD currently receives 30 hours a week of paid care; that is external care, but that there is money available for, and a need for, more care to be provided for VD. JB gave evidence that it is difficult to find carers generally at the moment, and particularly ones who are compatible with VD and GM.
JB gave evidence that in the absence of sufficient paid care, GM has stepped in and is providing more care to VD himself, and because VD and GM are in a romantic relationship they want time on their own, and that means GM is the overnight carer.
The Office of the Public Advocate investigator, JP, told us that there is, in her view, a need for VD to have a guardian. JP identified decision‑making around services and legal actions as areas where a guardian should have functions.
In JP's view, the legal actions, other than those relating to VD's estate, need to be conferred on the guardian to deal with matters relating to arrangements for VD's son, TD, which might need to be negotiated or litigated with her former partner, who is TD's dad.
VD's position was that she can make her own decisions with informal support from people she trusts, and she told us that she does not need a guardian. However, in her submission, she also said that she accepts that that is not the view that others have and that she understands they think she cannot make many of her own decisions, and that she wants SLN and GM to be her joint guardians, and GM to be her administrator or, alternatively, for GS and GM to be her joint administrators.
On the basis of the evidence before us, we are satisfied that VD is someone for whom a guardian could be appointed because we are satisfied that the evidence established on the balance of probabilities that VD is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, and is in need of oversight, care, or control in the interests of her own health and safety.

Is there a need for a guardian or is some less restrictive means available

We turn then to the question of whether or not there is a less restrictive means available for decisions to be made on VD's behalf. Having regard to s 4(4) of the GA Act, we are satisfied that there is no less restrictive means available for the kinds of decisions that need to be made other than by the appointment of a guardian with particular functions apart from decision making in those domains.
There is no enduring power of guardianship in place and, on the evidence before us, we are satisfied that VD would not be incapable of making one. The decisions which need to be made around services and especially litigation are ones that could not be made informally.

Plenary/limited

As to whether the guardianship order should confer plenary guardianship or limited guardianship, s 4(5) of the GA Act provides that a plenary guardian shall not be appointed if a limited guardian would be sufficient to meet VD's needs. We are satisfied that the appointment of a limited guardian with specific functions will suffice in VD's case. We are satisfied on the evidence that the functions which were conferred by Senior Sessional Member Lang are appropriate to confer upon the guardian again today.
In the course of the hearing, we heard evidence that VD's son, TD, is now 14 and, due to his age, lawyers do not think there is really any utility in commencing proceedings in the Family Court that would result in an order that TD spend regular time with VD. LD gave evidence that she had spoken directly with TD about spending time with his mother, but that she found it difficult to progress the matter any further than that. We are told that TD is not keen on spending time with his mother and can now essentially make his own decisions about where he spends his time.
However, it was very clear to us from VD's evidence that the relationship with TD is of the utmost importance to her. We have formed the view that notwithstanding TD's age, it would be appropriate to confer an additional function on the guardian that would authorise the guardian to assist in arranging family counselling, advocacy or mediation between VD and TD, and perhaps VD and TD's father, which may assist them in bringing VD and TD closer together.
We recognise that endeavour may already be possible under the services function, but we have formed the view that conferring an express function for that purpose will avoid any unnecessary uncertainty and highlight it as something that might be engaged in for VD's benefit.

Who should be appointed guardian

Having decided that a guardian is needed, we next turn to consider who should be appointed guardian.
Section 44 of the GA Act sets out the criteria for whom may be appointed guardian. It provides:
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal —
(a) will act in the best interests of the person in respect of whom the application is made;
(b) is not in a position where his interests conflict or may conflict with the interests of that person; and
(c) is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible —
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person’s estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4) The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
In this case, LD, VD's paternal grandmother, confirmed that she no longer wished to continue as guardian, and did not wish to be considered for appointment. Whilst she considers that she has made decisions as guardian that are in VD's best interests she has come to see that VD found her appointment destructive of their relationship, and VD also did not find LD to be respectful of GM, or to communicate with her adequately.
We are not going to make any findings about those matters. That is not necessary for us to do today because we are not considering LD for further appointment as guardian, but we note that there was no evidence before us that any decisions that she has made were not in VD's best interests. However, LD now says that she wants to focus on rebuilding her relationship with VD as a loving grandmother.

GM has proposed himself as guardian. So too has SLN. GM wishes to be appointed jointly with SLN, but SLN has said she is not willing to be appointed as a joint guardian with GM. She would like to be joint guardian with her brother, GS, but GS has only proposed himself as administrator. That left us to consider the possible appointment of GM or SLN as sole limited guardian.
GM is VD's partner and provides a great deal of her care. He has told us, and we can see from the orders previously made, that he was appointed jointly with LD as guardian for some time. He explained that he ceased to be a guardian because, much like LD, he found that being guardian brought him into conflict with VD and led to difficulties in their relationship. That was evidence that was also given by the Public Advocate about why it was that GM ceased to be VD's guardian.
We then turn to consider whether GM meets the requirements of s 44(1) of the GA Act.
There is no doubt that GM is over the age of 18. He told us that he is 53 years of age, and he has also consented to act as guardian. SLN has consented to act as guardian, and she gave evidence that she is 60 years of age. So, both meet that threshold age and consent requirement.
Relatives are not taken to have a conflict of interest merely by virtue of the fact that they are a relative of the represented person. We are satisfied that SLN's interests will not conflict with those of VD, but we are not able to reach that same conclusion in relation to GM. We find that GM is in a position where his interests may come into conflict with VD's best interests. We come to that view because GM lives in VD's home, where all the costs are paid, and is provided with a car and benefits from services that are provided to VD. His limited source of funds, the $300 a week paid to him, comes directly from his role as VD's carer. Whilst there is no doubt in our mind that GM cares deeply for VD, which has been shown in his actions in caring for her and advocating for her for the last 11 years, decisions about services and accommodation which need to be made will directly impact upon his position and, understood in that way, GM may be perceived as having a conflict of interest.
We acknowledge that GM has made sacrifices, such as being unable to work outside the home because of his caring role which, we are satisfied, may exceed the amount for which he is being renumerated as he has filled the gaps when other carers have not been able to be sourced. We acknowledge VD would like GM to be able to sign documents for her and be able to speak on her behalf, however, the issues that we have identified put GM in a position of conflict with VD and make him unsuitable for appointment.
Outside the limited functions that we will confer upon the guardian, however, GM is still able to assist VD with decision-making and act on her instructions and wishes.
We recognise that it is VD's wish that GM be appointed as her guardian, however, we also heard VD say that she thinks SLN would be a good guardian. GS, who is proposed as administrator, said that he would not be able to work with GM, but would be able to work with SLN as guardian, and we have taken that into consideration in reaching our decision today.
VD and SLN have established good communication between them. The problems VD expressed with LD making decisions about her are unlikely to occur if SLN is appointed because she is cognisant of what happened while LD was guardian and will, according to both VD and LD, communicate well with VD. SLN has a good relationship with LD, and we find that she will support the maintenance of VD and LD's relationship. We are also satisfied that SLN is respectful of GM's relationship with VD.
VD gave evidence that it is her wish for GM to be shown respect, and for his views to be considered and not to be dismissed. We consider that the appointment of SLN will be consistent with the maintenance of existing family relationships including, importantly, the relationship between VD and GM. On the other hand, we have real concerns that appointing GM as guardian has the potential to result in the deterioration of VD's very important relationship with him as her de facto partner and main support. That is what has happened in the past, and we were not confident that it would not happen again because no evidence has been given that there has been any change or any greater insight developed between them that would suggest that that conflict would not reoccur.
The guardian may have to make difficult decisions that might be against VD's wishes from time to time. In our view, it would be better that that burden is placed on someone outside of the primary relationship that VD enjoys with GM in order to avoid any disharmony between them.
Finally, we are satisfied that SLN is able to perform the functions that will be conferred. She has extensive, indeed 38 years of experience in the disability sector having spent the last 17 years of those working for [redacted] in a role which she explained was similar to that of a registered nurse, being a carer at group homes. She works 10-hour shifts four days a week presently but is looking to reduce her hours so that she can do what is required as VD's guardian.
SLN gave evidence that she has done research into what is required of a guardian, and she has ideas about what she might be able to do to improve the relationship between VD and her son TD, and we are satisfied from her evidence that she will be able to make decisions in VD's best interests and will be able to perform the functions of guardian.
We are not satisfied that GM will be able to perform the functions of guardian. GM told us that he had been unable to manage to apply for a carer's payment. There were explanations given about him being unable to obtain the necessary information from Perpetual Trustee Company Limited, and that he had initially made the wrong application at Centrelink. In the end, he said he had abandoned making the application, and his evidence before us was that doing so was 'out of his league', to use his words.
Further, the evidence before us is that GM made demands of support workers to undertake tasks which were not appropriate given the services those particular workers were coming to the home to provide. When questioned about that, GM told us that he had not understood that different service providers performed different roles, and he thought they were just there to do the jobs which helped him out caring for VD.
Further, GM told us that when he was VD's guardian, his efforts to help VD spend more time with TD had been 'shut down', and he had tried to get help but did not get the right help. We appreciate that GM did his best in that regard but note that the matter did not progress. Additionally, he told us that he had relied on LD to do the paperwork, and that SLN could do the paperwork if they are jointly appointed. Of course, the role of guardian is to get the right help in the domains in which they are appointed.
While we appreciate the honesty of GM's answers, they lead us to conclude that he would not be capable of performing the functions which are to be conferred upon the guardian in this case.
We have therefore concluded that SLN should be appointed guardian with the functions which we have identified. Her extensive professional background and close familial links with VD as her maternal aunt provides the skills and motivation to perform this role for VD.
It is clear to us from the hearing that VD was grateful to LD for performing that role for her for so many years, but that VD wanted the grandmother relationship back without the complicating factor of LD being her guardian, and the associated tension that it caused between them. VD's evidence was that communication is the biggest issue for her. It is clear that VD takes an interest in her affairs, and she becomes very frustrated when she cannot get updated information about issues which are important to her.
SLN gave evidence that she understood this about VD, and people with disabilities in general, and that she was prepared to provide more frequent and regular updates in a way that is expected to satisfy VD. GM can remain as her supportive and loving partner and carer, and be assured that the role of limited guardian will be performed by someone else who is capable and who will be respectful of his position in VD's life.
GM will be protected from any frustrations VD may feel towards her guardian and, as GM is the closest person to VD and knows her best, there will still be many tasks that GM will be able to perform for VD as her next of kin.

Duration of the order

We next have to consider then how long the appointment should be before it is to be reviewed. The maximum time is five years and, in our view, we think it is appropriate to make these orders be reviewable in five years' time. That is the maximum period but, of course, if anything changes in the meantime people can apply for review earlier than that on the basis of a change in circumstances.

Administration

Appointment of an administrator requires that the Tribunal be satisfied as to matters set out in s 64(1) of the GA Act. That section provides that:
(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 —
(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 —
(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.
The three primary questions for the Tribunal on review of administration orders are:
1.first, whether the represented person suffers from a mental disability;
2.secondly, whether by reason of that mental disability the represented person is unable to make reasonable judgments in relation to matters relating to all or any part of their estate; and
3.thirdly, whether they are in need of an administrator for their estate.
If those questions are answered positively then we move on to consider who should be appointed the administrator.

Whether VD has a mental disability

The term mental disability is used in the GA Act. It is an unpleasant sounding term but it has a legal definition which is set out in s 3 of the GA Act which includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
That definition is not exhaustive of all of the things that might come within it, but it sets out things that definitely do. In this particular case, the evidence before us is that VD has an acquired brain injury and, as a result, is someone who we find has a mental disability as that term is used in GA Act. We have made that finding based on the medical evidence to which we have already referred.

Represented person is, by reason of a mental disability, unable to make reasonable judgments in respect of matter relating to all or any part of her estate

We turn then to explain why we are satisfied that VD is unable because of that mental disability to make reasonable judgments in relation to matters relating to her estate.
The consideration of that issue involves a subjective and an objective test. The Tribunal has to consider whether the person in respect of whom the application is made has the ability to make reasonable judgments about their estate. That is a subjective test because determining that requires us to assess that ability in relation to the actual estate. At the same time, the Tribunal has to consider whether the represented person has the ability to engage in the particular mental processes required in order to make that judgment, and that is an objective test.
The reference to a person's estate is a reference to the aggregate of all of their property, assets and liabilities, and in practice, encompasses the entirety of their real and personal property and all their financial affairs.
We are satisfied, and we find, that the evidence established in this case that VD is unable to make reasonable judgments in respect of matters relating to her estate.
VD has what might be regarded as a large amount of money under administration by Perpetual Trustee Company Limited, which was a result of a settlement of litigation arising from her car accident. But those funds do not form part of her estate for the purposes of our decision today. However, those funds do need to last VD's lifetime given that VD has high needs and no other source of income, and the evidence before us is that VD sometimes makes unreasonable demands on those funds. For example, she has and continues to seek to have the trustee of those funds purchase a $5,000,000 property in Broome. VD was able to tell us that she thinks it might be a good investment and could be rented for use by persons with disabilities, but it is patently clear that the expenditure of the majority of her funds on one property investment would not be in her best interests.
VD's estate, for our purposes, is the funds which are transferred from the trust funds managed by Perpetual Trustee Company Limited to VD for spending twice a week, and any funds which are paid into superannuation from those trust funds.
The funds which VD is paid for her own spending is presently $1,150 a week and that money is used solely for food and entertainment because all other bills are being paid by the monies under management by Perpetual Trustee Company Limited.
That is not an insignificant sum, but certainly not the bulk of her money. It is important to note that no one was asking to have the orders appointing Perpetual Trustee Company Limited as limited administrator with functions relating to superannuation revoked or varied, but we are dealing with a hearing de novo and we therefore need to formally deal with that part of her estate.
We can do that very briefly. In light of the fact that the applicant did not seek to have us disturb those parts of the orders, we will leave the position in relation to the decision-making in relation to superannuation as it is. The interrelationship between the funds managed by Perpetual Trustee Company Limited and VD's superannuation is extremely important. If Perpetual Trustee Company Limited are not the administrator of those funds, it seems unlikely that they would make any disbursement into superannuation of those trust funds, and VD would lose the tax benefits that come with having funds in superannuation.
We have concluded that the medical evidence about impulsivity and difficulties with executive functioning and retention of information in VD's short-term memory are such that we are satisfied that she is someone who cannot make reasonable judgments in relation to all or part of her estate. She cannot hold in her working memory the information needed to weigh up the pros and cons of any decision about how her money should be spent.
VD is impulsive and consequently vulnerable in relation to her finances. Section 64(1)(a) makes clear that inability to make reasonable judgments in respect of one's estate does not of itself constitute a sufficient basis for making of an administration order. Individuals without mental disabilities are entitled to make choices about their estate which others might regard as unreasonable.
People with a mental disability might, depending on the nature of that disability, be capable of making reasonable decisions in relation to their estate. It does not follow that simply because someone has a mental disability, they should have an administration order made for them. It is only if the Tribunal is satisfied on the evidence before it that a person has a mental disability, and that it is because of that mental disability that they cannot make reasonable judgments about their estate that the presumption in s 4(3) of the GA Act is displaced.
The meaning of the phrase 'by reason of' has been considered in many cases in a variety of statutory contexts. In this context, it means that there has to be a causal link between the inability and the mental disability. In our view, there is no doubt that the mental disability identified in the medical evidence is the cause of VD's inability to make reasonable judgments in respect of her estate. That is because we have been told that prior to acquiring a brain injury, VD was involved in financial decision‑making, very good at bookkeeping and was able to manage in that domain of her life without the need of an administrator.
The evidence is that now VD attends shops frequently without sufficient funds in her account to pay for items that she wishes to purchase and calls upon her support coordinators to sort the problem out for her, showing an inability to budget. The evidence also indicates that she frequently transfers money to GM, or allows GM to use her card and does not manage to live within her means even though the sum paid to her weekly is significant given the very few things that money is required to be spent on.
Whether that is due to problems with VD's short-term memory or impulsivity, we are not able to say, however, we are satisfied that the acquired brain injury is the reason for the inability. We are therefore satisfied on the balance of probabilities that VD is, by reason of her mental disability, unable to make reasonable judgments in respect of matters relating to all parts of her estate, and we are satisfied that the requirements of s 64(1)(a) of the GA Act are met in this case.

In need of an administrator and whether a less restrictive means is available

We turn then to explain why we are satisfied that VD is in need of an administrator. Having regard to the evidence discussed above as to VD's inability to make reasonable judgments in relation to her estate, there is no doubt that she requires assistance to make decisions about her estate other than perhaps of the simple kinds about what to spend limited funds on for food and entertainment. The question however is not whether VD needs assistance, but whether she is in need of an administrator.
VD would not be in need of an administrator if somebody like a family member could make decisions informally about her estate. We have taken into account the kinds of decisions that need to be made, and it is clear that decisions around the investment of trust funds into superannuation could not be made other than by the appointment of an administrator, and there is no enduring power of attorney in place, and part of the medical evidence is to the effect that VD would not be able to execute the enduring power of attorney in any event. We have been compelled to conclude on the evidence before us that there is no less restrictive means available for decisions to be made, and that VD is in need of an administrator.

Who should be appointed

We turn then to consider who should be appointed as VD's administrator.
Section 68 of the GA Act provides that an administrator needs to be an individual of or over the age of 18 or a corporate trustee who has consented to act and who, in the opinion of the Tribunal, will act in the best interests of the person in respect of whom the application is made, and is otherwise suitable to act as administrator of the estate. For the purposes of establishing suitability, the Tribunal has to have regard to the compatibility of the proposed appointee with the represented person, the wishes of the represented person, and whether the proposed appointee will be able to perform the functions which are to be vested in the administrator.

In this case, GM has proposed himself as joint administrator with GS, but GS has told us that he will not accept a joint appointment with GM. We consider each of them separately for possible appointment.
We find that the evidence establishes that GM is in a position where his interests conflict with those of VD. GM's financial position is directly tied up with VD's. Decisions about how much money is distributed to her weekly is determined in discussions with Perpetual Trustee Company Limited and the administrator, and if GM were in the role of administrator, he would directly benefit from an increase in any payments made to her.
GM explained to us that he feels that he is paid too little as VD's carer, and we do not consider that he will be able to put his personal financial interests to the side and only make decisions in VD's best interests if GM were to be appointed as administrator.
Further, GM told us in evidence that he did not lodge his tax returns for four years, and we are not satisfied that he would comply with the obligation to provide accounts to the Public Trustee in a timely fashion if he were appointed administrator.
Additionally, GM's inability to resolve his Centrelink carers application, and giving up because he did not get the right help leads us to conclude that he may not have the ability to manage complex financial record keeping and decision-making involved in acting as administrator.
In contrast, GS, VD's maternal uncle, has given evidence that leads us to conclude on the balance of probabilities that he will be able to do all that is necessary in the role of administrator.
GS is 50 years old and is willing to act as VD’s administrator. GS told us that he is not an accountant, but that he works as a project cost controller, a job that he tells us is typically held by accountants. He gave evidence that he has experience in budgeting and cost controlling and has worked very successfully in that field. He has always completed his tax returns, never been declared bankrupt or held a position in a company that has gone into administration or financial distress.
GS was frank that he had not had a very meaningful relationship with VD since her accident. His primary relationship was with VD's mother, his own sister who died some years ago now. He said in some respects he sees this as a positive in terms of his ability to perform the role of administrator because he is largely willing and able to make decisions that may not accord with VD's interests where he regards them to be in her best interests.
GS also said that his concern was for VD's best interests, not GM's, and he is alert to concerns about that conflict. GS is aware that VD's funds need to last for the remainder of her lifetime, and he will be alert to making sure that as administrator, he makes decisions that will not mean that she will exhaust her monies during her lifetime, even if that means he needs to tighten the budget.
GS said he is aware that VD's biggest concern with her current administrator has not been the decisions that have been made but the way in which she feels she has not been given information at all or in a timely way. GS told the Tribunal that he wants to be able to communicate well with VD to alleviate that distress.
For those reasons, we are satisfied that the correct and preferable decision today is to appoint GS as limited administrator with plenary powers in relation to VD's estate, save and except for functions and authorities given to Perpetual Trustee Company Limited as limited administrator.
We have also considered the time at which the administration orders should be reviewed. We intend to make the administration orders reviewable in five years. That keeps the guardianship and the administrative orders aligned for the moment. Of course, if things change, an application for an earlier review can be made, but it seems at the moment that five years will be an appropriate time because VD's need for an administrator will not change, and it will give people time to settle into the new arrangements.

Orders

The orders that we will make are as follows.
1. The guardianship and administration orders dated 20 September 2022 are revoked.

Guardianship

2. The Tribunal declares that the represented person, VD, is:
(a) incapable of looking after her own health and safety;
(b) unable to make reasonable judgments in respect of matters relating to her person;
(c) in need of oversight, care or control in the interests of her own health and safety; and
(d) in need of a guardian.

3. SLN of [address] Western Australia is appointed limited guardian of the represented person with the following functions:
(a) to determine the services to which the represented person should have access;
(b) as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person; and
(c) to provide advocacy or engage advocates or mediators on behalf of the represented person in relation to parenting matters.

4. The guardianship orders are to be reviewed by 6 March 2028.

Administration

5. The Tribunal declares that the represented person, VD, is:
(a) unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b) in need of an administrator of her estate.

6. GS of [address] Western Australia is appointed limited administrator of the represented person's estate with plenary powers save and except the functions and authorities given to Perpetual Trustee Company Limited by orders 7 and 8.
7. Perpetual Trustee Company Limited (Perpetual) of Level 29, Exchange Plaza, 2 The Esplanade, Perth, Western Australia is appointed limited administrator of the estate of the represented person with the following functions:
(a) from time to time to call upon funds from the compensation court trust administered on behalf of the represented person pursuant to the order of the District Court of Western Australia made on 17 June 2016 (District Court Order), for placement into an appropriate superannuation fund for the benefit of the represented person;
(b) to act on behalf of the represented person with respect to that superannuation investment;
(c) from time to time, to call for funds from the said superannuation investment for the represented person's benefit; and
(d) to receive such funds and to apply and expend the sum for the maintenance, necessaries, comforts and benefits of the represented person in such a manner and to such extent as Perpetual, having regard to the circumstances and the value of the represented person's estate, considers it proper and reasonable, including the option of depositing such funds back into the compensation court trust on the represented person's behalf.

8. Perpetual may be remunerated for the performance of its functions as limited administrator on the following terms:
(a) For the purpose of calculating the fees, any superannuation investment will form part of the total assets administered by Perpetual as trustee of the compensation court trust;
(b) For the performance of its functions as limited administrator pursuant to this order, Perpetual shall be entitled to be remunerated to pay by way of commission in respect of capital at the same rate of commission that applied to the ongoing management fees for the administration of the compensation court trust; and
(c) Perpetual is authorised to, and shall, calculate the fee for acting as administrator under this order as part of the total fee for the administration of the compensation court trust and (to the extent that it is permitted pursuant to the District Court order) to deduct the fee for acting as administrator under this order from the funds within the compensation court trust. For the avoidance of doubt, the intention of this provision is that Perpetual shall be entitled to only one fee for administering the superannuation investment under this order and the compensation court trust pursuant to the District Court order.
9. The administration orders are to be reviewed by 6 March 2028.

For the avoidance of doubt, the intention of this provision is that Perpetual shall be entitled to only one fee for administering superannuation investment under this order, and the compensation court trust pursuant to the District Court order. The final order is that the administration order is to be reviewed by 6 March 2028.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MA
Associate to Deputy President Judge Glancy
16 MARCH 2023