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[2007] WASAT 202
State Administrative Tribunal (WA)
2007-08-13
Original judgment source is linked above.
Guardianship and administration - Review of administration order for Aboriginal man - Reasonable judgment in respect of matters relating to his estate - Test of reasonable judgment has objective and subjective elements - Reasonable judgment is the outcome of a process that involves knowledge, understanding and evaluation - Cultural obligations - Personal autonomy as against a duty of care to his community - Administrator shall act in the best interests of the person under administration - Section 70 of the Guardianship and Administration Act 1990 enables an administrator to manage an estate according to the individual needs and requirements of a person
1 An Aboriginal man was involved in a motor vehicle accident in 1987 from which he sustained a head injury and permanent cognitive deficits. He received a compensation payout of approximately $178 000 some years later.
2 The man lived in an Aboriginal community in regional Western Australia.
3 In 1997 the Public Trustee was appointed the man's administrator by the former Guardianship and Administration Board. The order was confirmed by the Board in 2003 and again in 2004 before being reviewed by the Tribunal in March 2007.
4 In 2006 the man was assessed for his ability to make reasonable judgments about his financial affairs by a psychology service that specialised in assessing Aboriginal people. The report of the psychologist raised the concern that the tests used in the assessments were not sufficiently sensitive to the man's Aboriginal worldview and might therefore understate his capabilities.
5 The man was also said to have cultural obligations that were reflected in a duty of care to his community. He was said to be aware of these obligations but a concern was expressed by an anthropologist experienced in the man's ways that he would be unable to resist the demands for funds from his family and kin were he to regain control of his estate.
6 The Tribunal found that, as a consequence of his cognitive deficits, the man was unable to make reasonable judgments about his finances. He was found not to be able to assess and evaluate the standards of his cultural obligations as they applied to him.
7 The Tribunal reappointed the Public Trustee as the man's administrator as no alternative was presented that would displace the need for an order for administration.
8 The Public Trustee had raised a concern that requests for funding by the man which provided a benefit for his extended family could not be made except with the approval of the Tribunal, as they were in the nature of gifts. This reduced the flexibility available to the administrator to make appropriate financial decisions for the man.
9 The Tribunal took a different view of the relevant provisions of the Guardianship and Administration Act 1990 (WA) and found that it was open for the Public Trustee to consider these payments against the criteria that determine what is in the man's best interests.
10 The Tribunal had some sympathy for the proposition that the man might benefit from consideration being given to the employment of a mentor to encourage his participation in positive activities and to use his skills and standing to support his community. The Tribunal also agreed with the proposal that the Public Trustee consider making use of "cultural consultants" to obtain a better understanding of the man's situation and needs.
11 These reasons relate to a review of an administration order made for Mr S, an Aboriginal person who lives in a community in a regional area of the State.
12 Mr S was involved in a motor vehicle accident in December 1987 from which he suffered a closed head injury, various fractures and a collapsed lung. Some years later, by way of a consent judgment in the District Court of Western Australia, it was ordered that Mr S be paid the sum of $180 000 plus costs to be taxed or agreed. An amount of approximately $178 000 was ultimately made available to Mr S.
13 In November 1997 an application for administration was lodged for Mr S with the former Guardianship and Administration Board (the Board) by MC, an intermediary. By that time Mr S had received $10 000 from the damages funds which he had allegedly spent on the purchase of a motor vehicle said to be wrecked. According to MC, Mr S was seeking the release of further funds:
"...not so much for himself, but to demonstrate to others that he has the money to spend upon his friends and family in a manner that they (and he) see as right. Social obligation and reciprocation factors are elements he is motivated by."
14 Mr S's circumstances and the reason for the application were described by MC as follows:
"On a day to day basis [Mr S] is no more deprived than the major proportion of his kinsfolk. Admittedly he is incapable of sustaining employment and whilst in receipt of a disability allowance would have sufficient funds at his disposal to allow him to maintain a lifestyle not unlike other people of his age who are similarly disadvantaged educationally and socially. It would not be fitting simply to permit [Mr S] to squander the money in an uncontrolled manner, neither should barriers arise to restrict him from accessing the money to which he is entitled."
15 Three orders for administration were made by the Board in respect of Mr S prior to the Tribunal taking over the Board's functions in January 2005. The first, made on 5 December 1997, appointed the Public Trustee as his plenary administrator. The second, made on 18 September 2003, reappointed the Public Trustee as plenary administrator with a direction that Mr S be paid an allowance of $300 a week. The third order, made on 8 December 2004, reappointed the Public Trustee as plenary administrator with a direction that Mr S be paid a weekly allowance of an amount negotiated with him and two named people who at that time played an important part in his life.
16 Each order included a further direction that the administrator provide a statement of transactions to Mr S and certain named people either quarterly or half-yearly.
17 The current proceedings are to review the order made on 8 December 2004 and are undertaken pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) (the GA Act).
18 The review of the administration order was first heard by a single member of the Tribunal on 5 July 2005 and adjourned to enable Mr S to undergo an assessment of his capacity to manage his estate. The matter was also referred to the Public Advocate for investigation and report pursuant to s 97(1)(b)(iii) of the GA Act.
19 Another hearing before a single member of the Tribunal was held on 24 February 2006. The report of the assessment of Mr S's capacity was filed with the Tribunal on 17 February 2006. The hearing was adjourned to enable the matter to be heard before a three member panel with the President of the Tribunal presiding. It was also decided that the Tribunal should have the benefit of expert anthropological input to assist in questions relating to the cultural needs of Mr S as they relate to the order for administration.
20 A further directions hearing was held before two members of the Tribunal on 6 November 2006.
21 The substantive hearing for review of the administration order was held before the Tribunal on 30 March 2007. The hearing was conducted in Perth and in the town where Mr S resides. Two members of the Tribunal travelled to the town for the hearing and together with Mr S and B, a financial counsellor who assists Mr S with financial matters, attended by video link.
22 Dr C, an anthropologist, had been invited to assist the Tribunal as a witness with expert knowledge on the cultural practices and needs of Mr S's people.
23 The attendees in Perth were Dr C, three staff of the office of the Public Trustee (the Public Trustee) and two staff of the office of the Public Advocate (the Public Advocate).
24 The Tribunal has decided to reappoint the Public Trustee as the plenary administrator of the estate of Mr S. The Tribunal has directed the administrator to pay Mr S a weekly allowance, the amount to be negotiated with Mr S and those knowledgeable about his affairs. The Tribunal has further directed the administrator to send to Mr S and to those people acting in his affairs, a statement setting out the transactions, disbursements and fees for the period and a statement of the balance of the account of Mr S, on 15 January and 15 July each year.
25 The order for administration is to be reviewed by 30 March 2008.
26 Under s 90 of the GA Act, the Tribunal may, upon a review of an administration order, confirm, revoke or amend the order or revoke the order and substitute another order for it. A review of an administration order is a de novo hearing, that is, the matter is heard again from the beginning.
27 In deciding whether to appoint an administrator for a person, the Tribunal is required, by the provisions of the GA Act, to make findings about the person's capacity, need for an administrator and, if an appointment is made, to decide who that administrator should be (s 64 and s 68).
28 In coming to its findings and determinations, the Tribunal shall observe the principles set out in s 4 of the GA Act:
In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in subsection (2).
(2) (a) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b) Every person shall be presumed to be capable of -
(ii) making reasonable judgments in respect of matters relating to his person;
(iv) making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c) A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d) A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e) An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(f) In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions."
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
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 -
as the case may require, of the estate of the person in respect of whom the application is made.
Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.
(a) may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;
(b) may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given."
30 Relevantly, s 68 details who may be appointed as an administrator:
An administrator (including a joint administrator) shall be
(a) an individual of or over the age of 18 years; or
who has consented to act and who, in the opinion of the State Administrative Tribunal -
(c) will act in the best interests of the person in respect of whom the application is made; and
(d) is otherwise suitable to act as the administrator of the estate of that person.
The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that -
(a) there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b) the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible -
(a) the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(c) whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
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 an administrator unless there is no other individual or corporate trustee who is suitable and willing to act."
The medical reports from 1996 to 2005 in respect of Mr S's capacity
31 Professor D's diagnosis of Mr S was that in 1987 he suffered a brain injury causing intellectual impairment and left hemi-ataxia. The assessment revealed "... a significant impairment of both mental and physical function in this young man."
32 The brain injury was "almost certainly ... a diffuse cerebral injury with frontal lobe damage and possibly also residual temporal lobe damage which has resulted in his change of personality, slowness and general intellectual impairment." This impairment was considered by Prof. D to be a permanent condition.
33 Mr S was assessed as having become slower in his mental activity which included calculation but that the slowness was probably greater than expected from the brain injury alone. Professor D stated that the "significant decline of intellectual function" was difficult to assess with standardised intelligence tests because Mr S's "... educational and social background is so different from the norms used for those intelligence tests." Despite this, Prof. D was satisfied he was able to get a good enough insight into Mr S's general intellectual function.
34 Mr S was considered not to be able to engage in "normal" employment in the future.
35 At the time of this report Dr E had been Mr S's general practitioner for just under two years. He had the benefit of Prof. D's assessment.
36 Dr E stated that Mr S suffered from an impairment of intellectual and personality functions and that the impairment was unlikely to change. In respect of Mr S's financial affairs, Dr E stated that "cognitive difficulties with financial management are compounded by his educational and cultural background."
37 Dr F had been Mr S's general practitioner for four years when he completed his report. In the report Dr F stated that, in his opinion, Mr S could make reasonable decisions in relation to his financial affairs. Dr F commented "[Mr S] has [an] ATM card which he manages." He made the observation in respect of Mr S of "regular heavy alcohol use not out of [the] ordinary for his social milieu."
The current evidence and submissions as regards Mr S's capacity
16 February 2006 G, Psychologist for a service which specialises in Indigenous people
38 This assessment arose from the hearing of the Tribunal of 5 July 2005 and the referral to the Public Advocate (see above). G had read the reports of Prof. D and Dr F.
39 G states that her assessment was undertaken to determine Mr S's capacity to:
"Manage and make appropriate financial decisions that would be considered in his best interests, protect himself from being exploited financially, and respond appropriately to social pressure or suggestibility in a manner that indicates an ability to protect himself."
40 G interviewed Mr S on three occasions and also spoke with several important people in his life. Her assessment comments upon matters outside the strict scope of a capacity assessment and reference will be made to some of those comments later in these reasons.
41 G describes Mr S as "... a traditional Aboriginal male, who has a strong and positive affiliation with his Aboriginality ... He speaks his traditional [...] dialect, and operates within the skin system which defines cultural obligations, communication styles as well as lineage ... He does not report a strong sense of understanding or connection with mainstream Australian culture ..."
42 G says that at time of the assessment, Mr S was oriented to time, place and space. He relayed most of his experiences with clarity but with basic detail. His recent and long-term memory "... remained mostly intact." He was able to understand and respond appropriately to questions posed to him. According to G, Mr S demonstrated high levels of concentration as well as a good ability to process and make sense of the questions posed to him. She regarded Mr S's literacy as "adequate" considering that he sees English as his fourth language and that he is able to use basic mathematical skills which "... in practical terms ... means that he is able to understand money, pay bills, plan his purchases and know if someone has short-changed him."
43 G formally assessed Mr S using the "Weschler Adult Intelligence Test" (WAIS-III) although she qualifies the results citing "... cultural bias issues operating in the conversion of [Mr S's] raw scores." However, certain subtests of the WAIS-III were used to ensure "... recognised cultural strengths were represented adequately in the choice of these subtests." The subtests chosen were the 'Block Design' and a modified 'Digit Span'. Other assessment tools used were 'money recognition' and clinical interviews with Mr S, his family and support persons.
44 The results on the subtests are "indicative of cognitive deficits", however, the validity of this "diagnosis" should be considered against the assessment that Mr S has very good adaptive skills and the already mentioned "cultural bias issues". It is G's opinion that Mr S's score does not warrant a diagnosis of "intellectually deficient or mentally delayed." The results are more likely an underestimate of Mr S's abilities and it is G's view that the focus should be on more qualitative outcomes of testing such as observations of Mr S's learning styles, understanding of concepts in tests and feedback regarding demonstrated strengths and weaknesses.
45 Mr S struggled considerably with the 'Digits Backward' component of the 'Digit Span' subtest in contrast to his performance on the 'Digits Forward' subtest. As to the significance of this, G states:
"According to Kaufman (1990) and Lezak (1995) Digit Span is frequently lowered in those people with diffuse brain damage as is the case with [Mr S]. It suggests poor concentration and attention and if Digits Backward is significantly lower than Digits Forward, as is the case with [Mr S], this suggests a significantly reduced level of mental flexibility and problems with executive functioning. This is again consistent with closed head injury sustained in 1987 which was 'diffuse'. This is also often attributed to problems with executive functioning, or put simply, attending to information and being able to hold it in memory while also performing other mental tasks."
46 G states, however, that "cultural explanations" must be examined in respect of Mr S's performance, namely "... the abstract nature of this task and whether it makes sense in an Aboriginal worldview." She states that her interaction with Mr S should have minimised this concern and therefore "neurological and neuropsychological explanations should ... be explored further."
47 In relation to the block design Mr S is assessed as being very capable of working out complex patterns and cognitively manipulating visual information, requiring however, more time than non-Aboriginal people for whom this test was designed.
48 G tested Mr S's understanding of money, in particular his recognition of the value of money and a practical understanding of the value of money. The recognition test referred to the value of coins and dollar notes and the test of what could be done and purchased with money was limited to a sum of $185. Within these parameters Mr S demonstrated both excellent monetary recognition and also a good understanding of the value of money.
49 G assesses Mr S as having the capacity to deal with people attempting to access his money, "... however due to [Mr S's] need to process information slowly he may find protecting himself from being exploited financially is more difficult if he is being rushed or pressured to make hasty decisions." Mr S's speed of information processing is, according to G, consistent with a person who suffered a closed head injury but also consistent with "... 'usual' communication styles for Aboriginal people."
50 This capacity to deal with social pressure and suggestibility is also influenced by where the pressure is coming from, and Mr S would find it more difficult to withstand demands from within his family.
51 G states that Mr S understands the need to comply with non-Aboriginal values regarding money and material belongings. He has a "... highly developed capacity to cope with competing life concerns."
"In summary, in assessing [Mr S] it has been determined that he is a highly motivated and committed traditional ... Aboriginal male. He suffers from a closed head injury and resultant 'diffuse cerebral injury with frontal lobe damage and possibly also temporal lobe damage' sustained when he was in a vehicle accident in 1987. [Mr S's] current level of cognitive functioning suggests that while there is [sic] some obvious deficits in ability he does have the capacity to make informed decisions regarding his basic health and welfare needs. [Mr S] also has the capacity to manage his day to day money use (small amounts were considered during the testing process and as such these comments can only relate to small amounts). Overriding, or rather underlying [Mr S's] capacity issues is the need to recognise the nature of traditional Aboriginal culture, Aboriginal learning styles and meaning ascribed to family and community obligations. [Mr S] may indeed be 'exploited' by his family however this view would be a non-Aboriginal view and not one that has much meaning to [his] people where cultural obligations to care and support family over-rides any sense of individuation. Additionally, as these cultural obligations are reciprocal, all family members and community members are also obliged to care for [Mr S], even more so as he is considered to be more vulnerable than other community members and as such he is afforded more protection than others."
53 Mr S was interviewed by an employee of the Public Advocate prior to the assessment conducted by G. He states in his written report dated 21 February 2006, that "it was not immediately evident to myself in our conversation that [Mr S] was someone to whom the Tribunal would have the authority over [sic] to appoint an Administrator."
54 In the written report, the Public Advocate's view of G's assessment is that it shows that Mr S is capable of managing his estate which is "... contrary to the majority of the previous medical reports presented to the Tribunal." The report states:
"The way in which I have assimilated [G's] assessment and report is to refer to [Mr S] as being "culturally competent" to manage his finances and his affairs i.e. when I view him as a traditional [...] male I cannot form any other opinion. This opinion is shared by [his support people], as reported by [G] on page 16 as they "do not see [Mr S] as lacking capacity, but rather they see him as a traditional Aboriginal male who has strengths and limitations". However, I believe if we were to meticulously apply white man's law to [Mr S] and his situation then it is quite possible that he could be found incapable of managing his estate and affairs, despite [G's] assessment and report."
55 At the hearing, the representative of the Public Advocate (a different person to the one who wrote the report of 21 February 2006), states that Mr S is "probably" someone for whom an administration order could be made. Her view of G's assessment is that it indicates Mr S is capable "... if you take into account cultural aspects." (T:24) She does not concur with this analysis of G in that G has made a "big generalisation around small amounts of money to a larger amount of money." The Public Advocate's representative also disagrees with what she sees as G's assessment that the protection offered by Mr S's community obviates the need for an administrator. (T: 25)
56 Dr C prepared a written report for the Tribunal (for which she had the benefit of the written reports of G and the Public Advocate) and also attended the hearing. She has become knowledgeable about the cultural practices and requirements of Mr S's people through over 30 years' involvement with the community. She states she knows Mr S's family well, particularly his parents, but that she has not spoken with any of them about the review of the administration order.
57 In regard to Mr S's capacity, Dr C states that whilst she is not competent to make a psychological assessment, she is "... dubious about the accuracy of ... [the] claim [that Mr S is capable]." She states her further view that the fact that Mr S knows the relative value of amounts up to $50 and can manage small amounts for day to day spending "... is no indication of his understanding of the sum of his compensation funds."
58 Dr C states that G "provides no evidence" for the opinion that Mr S has the capacity to deal with people attempting to access his money.
59 The evidence of Mr S which bears on his ability to make reasonable judgments is this. B (financial counsellor) states that Mr S recently visited her because he wants funds to purchase a private residence in town. He no longer wants to live in his community because of the "humbugging" that is taking place (Dr C describes "humbugging" as people hounding and annoying others often late at night when they are hungry or need a place to sleep. It is also about money and about being insistent when people are known to have funds. Dr C suspects that when Mr S refers to humbugging he means all of those things.) (T:26)
60 When asked how much he would expect to pay for a house in town, Mr S says "$50,000". He anticipates it will be a big house in which he will live with his sister. (T:5)
61 In her evidence B says she was unaware Mr S wanted to purchase a house; she has been assisting him being placed on the public housing wait-list for which she expects he will have to wait for some years unless he is considered for priority housing. He will likely be entitled to a one or two bedroom unit only. As to the cost of private housing in town, B says prices range in the area of $500 000. The Public Trustee reports that Mr S has about $129 000 in cash funds in his estate.
The evidence and submissions on other matters relating to the administration order
16 February 2006 G, Psychologist for a service which specialises in Indigenous people
62 As earlier mentioned, the primary focus of G's psychological assessment of Mr S is to come to a view on his ability to make appropriate financial decisions and to protect himself from financial exploitation. This has been mainly dealt with at pages 16 - 21 of G's report. G, however, makes further comment in her report on matters that may have relevance to the question of whether the Tribunal should appoint an administrator for Mr S.
64 A summary of G's comments and views is as follows:
65 Mr S lives with his mother, sister, nieces and nephews, and when well enough his father also lives with them. Mr S's father's ill health means that he spends periods of time in hospital.
66 Mr S has completed his traditional education or "law" and he is now a teacher of young Aboriginal people "... as he is both trusted and well known to be very patient and tolerant while teaching or tending to their needs." His position as "law mentor" is said to be given only to those who are considered effective role models. As the oldest active male in his family Mr S is considered to hold a high status within his community.
67 Mr S relies on a certain trusted person to assist him in dealing with purchases and gathering quotes for the Public Trustee. In this process the person translates complex matters into easily understood concepts for Mr S and his family. At times, however, Mr S relies on the person when he might be capable himself to undertake the task. The example given is of Mr S waiting for the person to return from leave before asking why certain electrical goods had not arrived.
68 Two people who were contacted by G and who have a "law" relationship with Mr S "... do not see [Mr S] as lacking capacity, but rather they see him as a traditional Aboriginal male who has strengths and limitations."
69 G is of the view that there appears to be a lack of understanding of cultural practices and flexibility by government agencies (including the Public Trustee) that has "... severely impacted on [Mr S's] quality of life." She cites the example of the time when Mr S and his family were living in a motor vehicle. She states that it is unfortunate that "cultural consultants" have not been used to provide direction and advice to government agencies.
70 It is G's opinion that "... [Mr S] is very aware of providing for his family as he is able to articulate the traditional obligations that have been evident for thousands of years within the Aboriginal culture. He is also very aware that this cultural obligation is reciprocal and should he need assistance his family and elders (especially those with law relationships to [Mr S]) they [sic] are obliged to assist him as much as they possibly can."
71 G states that there is "little doubt" Mr S will purchase a motor vehicle should he gain control of his estate. At present he is unable to fulfil his cultural obligations to general and "law" business due to a lack of transport. This inability impacts on Mr S's status in his community.
72 Mr S's family and his community have expressed a desire to assist Mr S in making appropriate financial decisions by using the "old way" which is a process of meetings between Mr S, his family and the relevant elder to discuss financial issues and to attempt to reach a consensus (with, however, Mr S having the final say on how the money is used).
73 Dr C states in her written report that "... the core of the dilemma raised by [the review of the administration order is the] ... fundamental incompatibility between the values of [Mr S's people] and those informing the relevant legislation." She states further that "the values that shape the rules under which the Public Trustee operates do not accord with [the] values [of Mr S's people]".
74 Mr S belongs to a family and community who are very poor, who in the main survive on welfare payments and who are not familiar with concepts such as long-term saving and investment. They are not generally accustomed to "institutions and systems that many Australians take for granted."
75 Dr C agrees with G that despite Mr S's disabilities, he has the acceptance and support of his family and community, however, she does not agree that Mr S holds the status within his community to which G attests.
76 Mr S's people place a high value on reciprocity and kin obligations but it is the usual situation that the givers have only marginally more resources than the receivers.
77 The ideas of reciprocity and duty of care are not straightforward. Dr C puts it this way:
"... the dilemma, as it appears to me, is between individual autonomy, which is highly valued among [Mr S's] people, and the duty of care ... it's a complicated matter and [an academic] has written a fair bit about this high value on autonomy that people - it has - it's an egalitarian principle really that, "You are not a boss for me," you know, and nobody is a boss for anyone else in terms of the mundane activities that people participate in, but at the same time, people are to care for one another and that puts a demand on individuals who have access to money or whatever." (T:22 - 23)
78 Dr C goes on to say that people's culture and values are not fixed; changing circumstances require new ways of dealing with problems. She states:
"So while I think cultural considerations are important, I don't think we always can find an equivalent or we can't always expect to find within the cultural system of the people we are dealing with a mechanism for addressing a problem that is introduced from the outside. So I don't think there is a huge problem about using institutions that are not part of their tradition to help address problems that also are not part of their tradition ..." (T:35)
79 In relying on many examples of people of Mr S's community who have received lump-sum compensation payments, Dr C predicts "... that if [Mr S] were to take control of his funds they would be dissipated in a matter of months, at best. Not only would members of his immediate family expect him to share, but a wide array of kin and friends as well." In that regard the demands on Mr S would be "simply persistent and infinite" and those demands would expand to match the available funds. (T:17 and 18)
80 Dr C is of the view that greater weight should be placed on Mr S's longer-term needs as against the benefit he may derive from the funds in the immediate term (Dr C states that if a motor vehicle was purchased for Mr S then the initial cost and running expenses would probably consume Mr S's entire estate in a very short period of time). (T:19)
81 Whilst Dr C takes issue with aspects of G's report (in her written report Dr C states that there are "... excessive and inaccurate claims about [Mr S's history], status and competence"), she accepts G's view that Mr S's circumstances should not be as impoverished as they have been at times, with the funds available to him.
82 Dr C is sceptical of G's claim that Mr S's family and community stand ready to assist him to make appropriate financial decisions and finds the reference to the "old ways" unconvincing.
83 In her written report Dr C sees the preferred way as something she calls a "halfway position", that is, that Mr S's funds "... continue to be managed with greater flexibility so that he is able to draw on them to improve his and his family's lives."
84 At the hearing B was described as a financial counsellor for a local legal service whose role (including for Mr S) is to assist clients in financial matters and advocate for them with institutions and bureaucracies.
85 B states that she is currently helping Mr S obtain alternative accommodation. She says that he is reacting to the problem of "humbugging" (see par [59]) in his community where recently a ban on alcohol has been enforced. That does not stop people drinking and returning in an inebriated state to the community. B states that Mr S drinks "excessively" but usually returns to his home in the community to "sleep it off." (T:9) Mr S follows the community rules and does not want to be bothered by those who do not. (In that regard Dr C is of the view that even should Mr S secure accommodation outside of his community he will still be "bothered" by people who are inebriated and looking for a place to sleep.) (T:18)
86 B states that she assists Mr S in his dealings with the Public Trustee who she says is doing an excellent job as administrator. She says that the Public Trustee does his utmost to consider Mr S's needs and cultural responsibilities. The Public Trustee has a duty of care to disburse Mr S's money in a manner that enhances and promotes his socioeconomic status. (T:10)
87 In respect to Mr S's needs for transportation for "law" business, ceremonies and funerals outlined by G (see par [71]) and confirmed by Dr C (T:20), B states that Mr S is not necessarily in need of his own motor vehicle (he does not have a driver's licence). Communities have their own vehicles and there is an obligation to use them for law business, the Department for Community Development provides travelling money for attendance at funerals and in emergencies, the mail plane can be used. In her dealings with Mr S's community, B says only very rarely does a person get left behind and that is usually because they are intoxicated. (T:21 - 22)
88 B is of the view that having the Public Trustee manage Mr S's funds is to his benefit as it relieves him of having to deal with the stress of demands for his money. (T:29)
89 B states that Mr S would benefit from having something active to do such as voluntary work, and that some of his funds could be used to explore options for programmes or activities that promote his self esteem and assertion skills. (T:36 39) (Dr C proposes that funds could, if appropriate, be made available to provide a "coach" or a person to work one-to-one with Mr S.) (T:40)
90 B also sees a pressing need for funds to be spent for Mr S's dental needs. His teeth are badly damaged and are a health risk to him.
91 According to the Public Trustee's representative, Mr S's estate is not difficult to manage because it is not a large estate ($129 000). Mr S is paid $300 a week as an allowance and any ad hoc request is given appropriate consideration. (T:12)
92 About 12 months ago a request was made by Mr S for the purchase of two fourwheel drive vehicles on behalf of Mr S. Consideration was given for the purchase of one vehicle but the request did not proceed after information was sought in relation to the proposed driver of the vehicle (for insurance purposes) and how the vehicle was to be used. (T:14)
93 Given the modest size of Mr S's estate, it is acknowledged by the Public Trustee that the funds are not expected to last the remainder of Mr S's life. The aim is to use the funds to improve Mr S's lifestyle for a reasonable period of time and the allowance given to Mr S is structured to achieve that end. (T:15 16)
94 The Public Trustee relies mainly on people such as B and the "goodwill of other government agencies" to assist Mr S to communicate his financial needs (and cultural obligations), as there is no regional Public Trustee office. Requests for funds are decided in Perth. (T:12, 15 and 32) The Public Trustee will provide funds to Mr S to attend "law" business and funerals. (T:22)
95 An issue that has arisen is how "... the Public Trustee deals with the funds we hold on behalf of [Mr S] in relation to providing a benefit to his extended family. That is an ongoing issue for us. We are bound by the Guardianship and Administration Act, which specifically says - in s 72, I think - that we can't make benevolent dispositions ... or gifting. It makes it difficult for us to actually extend the financial benefit of [Mr S's] estate to his family, without the permission of the Tribunal." (T:12)
96 The Public Trustee is seeking guidance from the Tribunal on that particular matter.
97 At the hearing the Public Advocate's representative took the view that Mr S is "probably" someone for whom an administration order could be made and on the evidence presented, that he likely does not have the full ability to protect himself [from demands for his money]. (T:24 and 25; and par [55] above)
98 The Public Advocate accepts that there is already a degree of flexibility in the management of Mr S's estate by the Public Trustee, in that Mr S's weekly allowance exceeds his income and he is not obliged to pay his rent out of that allowance.
99 The first step in the determination of whether an administrator should be appointed is for the Tribunal to decide the question of whether a 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 or her estate: s 64(1)(a).
100 A person is presumed to be capable of making reasonable judgments in respect of matters relating to his or her estate until the contrary is proved to the satisfaction of the Tribunal: s 4(2)(b)(iv).
101 There needs to be a causative link between the person's "mental disability" and their inability to make "reasonable judgments".
102 The term "reasonable judgment" is not defined in the GA Act. The difficulties with its meaning and application are well described in XYZ v State Trustees Ltd [2006] VSC 444 at [36] - [46] and in the decision of the rehearing of that matter by the Victorian Civil and Administrative Tribunal in XYZ (Guardianship) [2007] VCAT 1196 at [52] - [59].
103 The Tribunal agrees with the comments of Deputy President Billings in XYZ (Guardianship) in citing Re MacGregor [1985] VicRp 85; [1985] VR 861, that the test of "reasonable judgment" is a subjective one (although only in part [see below]). That part of s 64(1)(a) of the GA Act that refers to "reasonable judgments in respect of matters relating to all or any part of his estate" is equivalent to s 46(1)(a)(ii) of the Guardianship and Administration Act 1986 (Vic).
104 Deputy President Billings states at [54] and [55]:
"In Re McGregor [sic] [1985] VicRp 85; [1985] V.R. 861 Starke J applied a subjective test and so did not follow Powel J in P.Y. v. R.J.S. [1982] 2 N.S.W.L.R. 700. (The legislation in Re McGregor [sic] contained the words "incapable of managing his affairs." The NSW legislation was similar). At p. 866 Starke J observed that the Act itself appeared to lay down a subjective test by speaking of "'managing his affairs', not the 'ordinary routine affairs of man'" and, he pointed out, the Court was "exercising its protective jurisdiction in respect of individuals, not a class of persons". Subsequent New South Wales authorities have followed P.Y. v. R.J.S.: see Re C (TH) and the Protected Estates Act [1999] NSWSC 456; EMG v. Guardianship and Administration Board of Victoria [1999] NSWSC 501; P. v. R. [2003] NSWSC 819; and Re GHI (a protected person) [2005] NSWSC 581.
If it were open but also necessary for me to choose between these Victorian and New South Wales decisions, I would respectfully prefer Re McGregor [sic] for the reasons set out in that case. However, section 46(1)(a)(ii) of the Guardianship and Administration Act 1986 contains further words that really distinguish these cases and reinforce the subjective nature of the test. Those words are "all or any part of her or his estate" (emphasis added). This surely involves the Tribunal considering the person's capacity in relation to his or her actual estate and not "ordinary routine affairs"."
105 That this reasoning likely applies to the GA Act is made clear by the words in s 64(1)(a) which are the same as in the Victorian legislation. The emphasis on the individual in the structure of the GA Act is reinforced by the second reading speech for the Guardianship and Administration Bill by the then Minister for Health, the Hon K Wilson MLA, in June 1990 (Hansard, vol 283, p 1914) when he said:
"The framework of the Guardianship and Administration Bill gives people the freedom to function independently if they have the competence. It recognises the existence of a wide spectrum of disabilities between what is judged to be absolute competence or absolute incompetence... [v]arying degrees of incompetence are acknowledged. Personal and individual independence will be encouraged for those who suffer from only slight mental handicap."
106 That the ability of a person to make "reasonable judgments" is to be assessed in relation to his or her actual estate (the subjective test) does not reveal what is involved in the making of such a judgment and when it is that a person (because of a mental disability) is unable to do so. The latter test is an objective one, that of an ability to engage in a particular mental process.
107 That mental process might be something like that described by the Court of Appeal of Queensland in Flemming v Gibson [2001] QCA 244; (2001) 34 MVR 40. In that case a question to be decided was whether the respondent, at the material times, should be taken to be under a disability while she was of unsound mind: s 5(2) of the Limitation of Actions Act 1974 (Qld). The basis of the unsoundness of mind relied upon was brain damage causing impairment of intellect and psychiatric disorder. The answer to that question would determine whether the respondent was able to manage her legal rights pursuant to a damages claim in respect of a motor vehicle accident.
"We regard the present case as falling very close to the line, because the level of outward functioning of the respondent does not, at first glance, seem markedly different from that of many other disadvantaged persons who maintain an independent existence despite disability and who manage their own affairs including, if necessary, litigation. However the relevant tests in the present matter touch upon the respondent's ability to give appropriate instructions to her advisers for the institution and conduct of proceedings, her capacity to understand matters upon which instructions might need to be given, her capacity to appreciate the nature and extent of the available claim and to exercise reasonable judgment upon possible settlement of it..." (emphasis added)
109 In the cognitive process outlined above the making of a "reasonable judgment" is the outcome of a process that involves knowledge, understanding and evaluation.
110 The effect of all of this as it relates to the operation of s 64(1)(a) of the GA Act, is to require the Tribunal to consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a "reasonable judgment" (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances.
111 The Tribunal is satisfied that Mr S has a mental disability (s 3 and s 64(1)(a) of the GA Act). He sustained a head injury and brain damage as a consequence of a motor vehicle accident in 1987. It is common ground that Mr S suffers residual cognitive deficits and the Tribunal accepts that these are permanent. It is now nearly 20 years after the accident and the most recent assessment of G (2006) confirms Prof. D's earlier view (1996) of the permanency of the injury.
112 The critical question is to what extent, if any, do the injury and the associated cognitive deficits impact on Mr S's ability to make "reasonable judgments in respect of matters relating to all or part of his estate": s 64(1)(a).
113 Whilst qualifying her assessment of Mr S in respect of his Aboriginality and consequent worldview, G (psychologist) draws some conclusions which the Tribunal is satisfied stand above Mr S's cultural circumstances. These are, for the Tribunal, objective pointers as to whether Mr S is able to make reasonable judgments. They are that Mr S:
114 The assessment of G is not inconsistent, in the Tribunal's view, with that of Prof. D made in 1996 particularly the assessment of a general decline in Mr S's functioning and "slowness" in his cognitive processes.
115 Any cultural factors that it might be argued qualify G's assessment (and to which G frequently refers), in the view of the Tribunal do not displace the fact that Mr S suffers particular cognitive deficits (as a consequence of a brain injury) and that these deficits interfere with his ability to process information to the extent necessary to make reasonable judgments under certain circumstances.
116 The Tribunal is satisfied that the reduction in Mr S's ability to make reasonable judgments extends to matters that relate to his estate as it is represented by a block of available funds of $129 000.
117 It is arguable that the reduction in ability to make reasonable judgments does not extend in every respect to Mr S's basic day to day living. On all the evidence, however, the Tribunal is not satisfied that this is the case. (See for example Mr S's alcohol consumption and his neglect of his dental needs.)
118 Evidence has been provided to the Tribunal on the cultural requirement of Mr S to share and to the interacting factors of individual autonomy and the obligation of a duty of care to his community.
119 G states that Mr S is aware of providing for his family "as he is able to articulate the traditional obligations that have been evident for thousands of years within the Aboriginal culture." G assesses Mr S as having the capacity to deal with people attempting to access his money although this capacity would be compromised by the effect of his cognitive deficits when having to make pressured or hasty decisions and when dealing with demands from his family.
120 Dr C predicts that, if the whole of Mr S's funds were made available to him the demands of family and a wide array of kin and friends would be irresistible and they would be dissipated in a matter of months.
121 The Tribunal prefers the more nuanced evidence of Dr C given her extensive anthropological knowledge and experience of Mr S's community (see for example her views on the tension between individual autonomy and group obligations). It is not helpful to refer, as G does, to obligations within Aboriginal culture as if there is an homogeneous culture in all such communities and groupings. Dr C speaks of a dynamic culture within Mr S's community, attempting to deal with new circumstances. The introduction of a "cash culture" of which Mr S's compensation funds are a representation, is such a new circumstance.
122 The way in which Mr S deals with this new situation (the availability of an amount of funds foreign to his ordinary living) is governed not only by the standards of his group (for example, autonomy vs reciprocity) but more fundamentally by his ability to assess and evaluate those standards or values as they apply to him.
123 It is the view of the Tribunal that on the evidence, Mr S does not have that ability and as a consequence he is unable to make reasonable judgments about his estate as a whole, represented as it is by cash funds of $129 000.
124 The Tribunal therefore finds the provisions of s 64(1)(a) of the GA Act satisfied.
125 Section 4(2)(c) of the GA Act states that the Tribunal shall not make an administration order if the needs of the person can be met by means less restrictive of the person's freedom of decision and action.
126 In her report, G states that Mr S's community has a desire to assist him manage his estate by using the "old ways", a consensus process between Mr S, his family and certain elders of the community. Dr C is not convinced by this argument.
127 Other than the statement of G, there has been nothing put to the Tribunal by way of a concrete proposal for a way in which Mr S's estate might be better managed, other than by the making of a formal order for administration.
128 It is difficult for the Tribunal to exactly establish the wish of Mr S in respect of administration but it is more likely than not that he would want the order revoked and to gain control of his finances: s 4(2)(f). The Tribunal is not satisfied for the reasons already given that it is in Mr S's best interests for his estate to be managed without an order but accepts that it could be managed more flexibly (see below).
129 The Tribunal is therefore satisfied that Mr S is in need of an administrator and that it is in his best interests that an administrator of his estate be appointed: s 4(2)(a), s 64(1)(b) and s 64(1)(c).
130 There have been differing views given to the Tribunal on the appropriateness of the Public Trustee to be administrator of Mr S's estate. These views refer in the main to the question of how a bureaucracy based in Perth can respond to the needs of Mr S in his unique circumstances. The circumstances are those of an Aboriginal man caught in the interface between the ways of his people and non-Aboriginal systems as they apply to people with a disability who receive compensation funds.
131 Dr C sees this as a problem introduced to Mr S's community from the "outside", and as such it might be appropriate to use institutions that are not part of his people's tradition to deal with that problem.
132 It is common ground that flexibility and cultural sensitivity are the cornerstones of a system of administration in Mr S's situation. Both G and Dr C question how effective that has been over the years of Mr S's administration. The Public Trustee rightly argues that, as administrator, he must manage Mr S's estate in such a way as to enhance his wellbeing but also to ensure a level of protection and prudence in the expenditure of Mr S's funds.
134 The Tribunal has some sympathy for the proposition put by B that Mr S might benefit from consideration being given to the employment of a mentor (or "coach" as put by Dr C), to encourage his participation in positive activities and to use his skills and standing to support his community. The Tribunal also agrees with the submission of G that the Public Trustee should consider making use of "cultural consultants" to obtain a better understanding of Mr S's situation, as well as continuing to have the assistance of people such as B who is an invaluable resource in the translation of Mr S's needs in the non-Aboriginal systems.
135 The Public Trustee has raised a particular matter of concern. He has taken a view that expending funds from Mr S's estate that provide a benefit to Mr S's extended family, fall for consideration under the provisions of s 72 of the GA Act. Section 72 states that an administrator is not allowed to make a payment or disposition of a charitable, benevolent or ex gratia nature without the authority of the Tribunal. To put it simply, the Public Trustee is concerned that payments in response to certain of Mr S's cultural obligations are in the nature of a gift and require the Tribunal's approval.
136 If this is the case then the Tribunal accepts it is an impediment to managing Mr S's estate in a flexible and culturally sensitive way.
137 The Tribunal, however, takes a somewhat different view of how the payments referred to by the Public Trustee might be categorised and it is this.
138 It is a requirement of an administrator that he acts in a person's best interests. This is provided for in s 70 of the GA Act which states, inter alia, that an administrator shall act:
139 The Public Trustee, in deciding whether a requested expenditure is in Mr S's best interests, should, in the first instance, consider that request with reference to the provisions of s 70. This, in the Tribunal's view, allows for consideration of Mr S's particular family circumstances and obligations.
140 Section 70 allows an administrator to manage an estate according to the individual needs and requirements of a person whilst otherwise preserving the fiduciary responsibilities of an administrator to the person under administration.
141 It should be said that reading s 70 in this way cannot and does not weaken the provisions of s 72 of the GA Act. Whether a payment is characterised as of a charitable, benevolent or ex gratia nature, and therefore needs to be approved by the Tribunal, is determined ultimately by the facts of the particular case.
142 The Tribunal is simply saying that s 70 provides administrators with some guidance, in the general management of a person's estate and in expenditure decisions that are made from time to time. This is particularly relevant in the case of Mr S when the Public Trustee, as administrator of his estate, is faced with his unique circumstances.
143 It is of course open to the Public Trustee to seek directions from the Tribunal concerning the management or administration of any property forming part of a person's estate: s 74(1).
144 The Public Trustee can ultimately make application for gifting (ex gratia or benevolent payments) under s 72 of the GA Act should a payment, in his view not be able to be categorised in another way.
145 As it currently stands, other than the Public Trustee, no one is proposed as Mr S's administrator. The Public Trustee is therefore appointed the administrator of Mr S's estate.
146 Consistent with the Tribunal's finding that Mr S is unable to make reasonable judgments about his estate as a whole (represented by his pension income and by cash funds of $129 000), the Public Trustee is appointed his plenary administrator: s 68(1).
147 The Tribunal has decided to direct the administrator in respect of the weekly allowance paid to Mr S and also to make available a statement of financial transactions on Mr S's estate to certain people each six months.
148 On 30 March 2007, the Tribunal made the following orders:
The Public Trustee of 565 Hay Street, Perth, Western Australia be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
I certify that this and the preceding [148] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(2001) 34 MVR 40