ZJK
[2005] WASAT 18
•28 FEBRUARY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: ZJK [2005] WASAT 18
MEMBER: MS H LESLIE (SENIOR SESSIONAL MEMBER)
HEARD: 22 JUNE 2004
DELIVERED : 28 FEBRUARY 2005
FILE NO/S: GU 281 of 2004
BETWEEN: ZJK
Applicant
Catchwords:
Administration - Capacity - Need - Relocation Overseas - Change of Circumstances
Legislation:
Guardianship and Administration Act 1990 (WA), s 4,s 64, s 49
Result:
Administration Order dated 1 April 2004 Revoked
Category: B
Representation:
Counsel:
Applicant: Self represented
Solicitors:
Applicant: Self Represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MS H LESLIE (SENIOR SESSIONAL MEMBER):
REASONS FOR DECISION
Preliminaries
Orders in this matter were made by the Guardianship and Administration Board on 22 June 2004. That Board ceased to exist as of 24 January 2005. The State Administrative Tribunal issues these Reasons under the relevant transitional arrangements.
Applications
An application in respect of the proposed represented person Mr ZJK (hereafter ZJK) was lodged on 4 June 2004 for review of the existing administration order (the application).
Previously applications to and orders by the Guardianship and Administration Board (the Board) have been made as follows. On 23 October 2001, the Board appointed the Public Trustee as Plenary Administrator for ZJK for five years. On 8 November 2002, ZJK requested a review of the order but did not attend the hearing. The matter was adjourned. It was subsequently relisted at ZJK's request and the order was confirmed on 6 May 2003 for a further one year. On 1 April 2004 the order was confirmed again for a further three years.
The applicant is ZJK. Although this is not clear from his written application, it is understood that the applicant seeks the revocation of the existing administration order.
The attitudes of other interested parties, in summary, are varied. ZJK's fiancée MS and his social worker support the application. The Public Trustee opposes it.
The issues for determination are therefore those of capacity and need.
Background
ZJK is a 45 year old man who suffers from Bi Polar Affective Disorder (BPAD). At the instigation of those in charge of his treatment, the original order was sought to halt ZJK's mismanagement of his financial affairs, to settle his debts, and arrange for the payment of his bills and the payment to him of an allowance for his personal expenses. At the time, in the absence of family or reliable close friends, the Public Trustee was appointed.
It appeared at the time of the current hearing that ZJK had formed a relationship with MS and was intending to marry and further that he and MS intended to relocate permanently to Poland within days of the hearing.
Capacity
The Board must consider the issue of capacity as a precursor to the consideration of application for orders relating to an adult person.
Section 4 of the Guardianship and Administration Act 1990 (the Act) states
"(1)In the performance of its functions the Board shall observe the principles set out in subsection (2).
(2)(b) Every person shall be presumed to be capable of
(i) looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the Board."
Section 64(1)(a) of the Act states that before making an administration order the Board must be satisfied that a Proposed Represented Person
…is unable, by reason of mental disorder, intellectual handicap, or other mental disability to make reasonable judgments in respect of matters relating to all or any part of his estate…
Evidence
The evidence from the Social Worker attached to the psychiatric team responsible for ZJK's care is that ZJK still suffers from BPAD, that his illness is chronic but that he is stable and "in good remission", that he may not be well enough to manage his finances completely himself but that he is well enough to make an Enduring Power of Attorney or otherwise to choose someone to assist him in the management of his affairs. This evidence is not challenged in the sense that any alternate clinical opinion is put forward.
The Public Trustee in her report to the Board simply restates the diagnosis and proffers the opinion that "we do not believe that Mr K is capable of handling his own finances unaided. Though his capacity has improved in recent months, his bipolar disorder is still active and in need of control. This causes a difficulty in planning and handling money for future concerns." Her recommendation was that the order remain in place" at least until all debts are paid and all property not transferred or transferable to Poland disposed of."
Findings
Having considered all of the evidence in this matter, the Board accepts that, although stable, ZJK may well not be able to manage all aspects of his financial affairs without assistance. This proposition is not really disputed by ZJK.
The Board is satisfied on the balance of probabilities that the requirements of the Act have been satisfied and that ZJK is a person for whom an order could be made.
Need
The Board is required to take into account the provisions of s 4(2)(c) of the Act which provides that
"[An] order shall not be made if the needs of the person in respect of whom an application … is made could, in the opinion of the Board, be met by other means less restrictive of the person's freedom of decision and action."
and, pursuant to s 64(1)(b), the Board may only make an order if it is satisfied that there is a need.
Evidence
The Board received and accepted evidence from ZJK and MS that they planned to return to Poland permanently in the short term and to marry and that MS is happy to and is able to assist ZJK with his money matters. She speaks Polish and is able to communicate well with him.
The Public Trustee's report indicates that ZJK is in receipt of a pension and that this will continue to be paid to him in Poland. He has his day‑to‑day domestic bills and an outstanding debt to Telstra currently standing at $1135.35. He has $436.77 remaining in the common fund after the purchase of his air ticket to Poland. He has no other assets of significance held under the Board's authority. He has a damages payout of approximately $9000 currently held by the Public Trustee pursuant to an order of the District Court. The disposition of these funds is not a matter for this Board. The Board however understands that given ZJK's imminent departure to Poland, the Public Trustee may give consideration to an application to that Court for the release of those funds to pay off the Telstra debt and to return the balance to ZJK or to the creation of some other sort of protective holding for them in Poland, potentially with MS's assistance.
In relation to the Administration order, the Public Trustee recommends the continuation of the order "at least until all debts are paid and all property not transferred or transferable to Poland disposed of." In relation to the later, it appears that the Public Trustee had in mind in particular ZJK's car. In the hearing it became apparent that ZJK had in fact already disposed of the vehicle for cash, given his imminent departure, and had retained the proceeds (approximately $1300) for his own use.
Findings
Having considered all of the evidence in this matter, the Board makes the following findings.
The Board takes the view that although ZJK needs assistance with his affairs, there is no need for an administration order; that this need can be met by the assistance that MS can give him, given the small and relatively straightforward nature of his estate. It seems to the Board that ZJK can be appropriately assisted in Poland this way, and that it is unnecessary for the Public Trustee in Perth to continue to manage his estate.
This is an option less restrictive of ZJK's rights but affording the necessary protection to him.
Wishes of the Proposed Represented Person
Section 49(2)(f) of the Guardianship and Administration Act 1990 (the Act) requires that the Board
"as far as possible, seek to ascertain the views and wishes of the [proposed represented person] as expressed, in whatever manner, at the time, or as gathered from the person’s previous action…"
In this case ZJK clearly indicated his preference that MS assist him informally.
Office Of The Public Advocate (OPA)
In this case the Public Advocate was not involved and made no recommendation to the Board.
Conclusion
In relation to all applications, the Board is required by s 4(2)(a) of the Act to consider the best interests of the Proposed Represented Person.
In all the circumstances, the Board considers that the revocation of the Administration order is in ZJK's best interests.
Orders
The Board, having considered all the evidence both written and given at this hearing, orders that the order of the Board dated 1 April 2004 be revoked.
I CERTIFY that this and the preceding six pages comprise the reasons for decision of the member who heard this matter.
_________________________
Ms H Leslie
Senior Sessional Member (SAT)
(Presiding Member of the Board at the hearing on 22 June 2004)
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