FY [2019] WASAT 118 (22 November 2019)

Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 4(3)(d), s 17A, s 17A(1), s 43(1), s 43(1)(b), s 64, s 64(1), s 64(1)(a), s 68

FS [2007] WASAT 202

Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd [1993] FCA 535; (1993) 46 FCR 301

Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202

March v E and MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161

Republic of Croatia v Snedden [2010] HCA 14, (2010) 241 CLR 461

S and SC [2015] WASAT 138

SAL and JGL [2016] WASAT 63

1. FY has applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for the review of a decision made by a single member of the Tribunal on 21 June 2019 (Review Application).
2. In that decision, the learned Member declared that FY was unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate, and was in need of an administrator of her estate. The learned Member made a number of orders, including an order appointing the Public Trustee as the plenary administrator of FY's estate with all the powers and duties conferred by the GA Act, and with authority to expend up to a total amount of $500 per annum on gifts on behalf of FY, and an order requiring a review of the administration order by 20 June 2021.
3. FY made the Review Application because she considers herself able to manage her own finances, wants control of her own finances, and is of the view that she has successfully managed her own finances in the past. FY proposed that the Tribunal 'can check a year later if I am doing ok'. FY also contended, in the alternative, that if the Tribunal were of the view that an administration order should be made, then her daughter, IY, should be appointed the administrator of her estate. In the course of the hearing on 21 June 2019, IY had expressed her willingness to act as the administrator of her mother's estate. She did not attend at the hearing of the Review Application to reaffirm that willingness.
4. For the reasons set out below, we concluded that the decision under review should be affirmed. We made an order to that effect on 18 October 2019, and indicated that we would publish our reasons for that decision shortly thereafter. These are our reasons for the order we made.

1. FY is a 41-year-old woman who was born in an African country. She experienced trauma during the civil war in that country and immigrated to Australia in the early 2000s. Quite apart from the stress of those experiences, she has experienced the deaths of several close family members, and has also experienced domestic violence in her close relationships. In addition, FY suffers from a very serious, ongoing medical condition. It does not affect her cognitive functioning, but requires ongoing medication and monitoring, and the support of service providers in allied health areas.
2. FY is divorced, with three children. Her eldest daughter, IY, is in her early 20s and has a young child of her own. In addition, FY has two younger children, a son who is in primary school and a daughter not yet of school age. FY also has at least one sibling: a married brother who lives in Perth.
3. It appears that FY has had very limited education. She is largely illiterate. She is able to speak English, but it is her second language. A friend accompanied her to the hearing of the Review Application to provide support, assist FY to understand the proceedings, and to assist her to be understood. (It was not suggested that FY required the assistance of an interpreter, and we were satisfied that she understood the proceedings to the extent of her ability to do so).
4. FY is presently unemployed and her only income is from fortnightly Centrelink payments. She has a large debt to Centrelink, and, until the Public Trustee was appointed as her administrator earlier this year, she also owed a very large sum to the Australian Taxation Office (ATO). The Public Trustee has since successfully negotiated the settlement of the latter debt on FY's behalf.

1. 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 the determination. As the Tribunal is exercising its review jurisdiction, the hearing of the Review Application was conducted as a hearing de novo. Consequently, the hearing was not confined to the matters that were before the Tribunal at first instance but involved the consideration of new material including evidence the Tribunal received in the hearing of the Review Application.[1]
2. The purpose of a review is to produce the correct and preferable decision at the time of the decision on the review.[2]
3. The issue for the Tribunal on the review is whether an administrator should be appointed in respect of FY's estate, which requires that the Tribunal be satisfied as to the matters set out in s 64(1) of the GA Act. That subsection provides:

(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

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.

1. The three primary questions for the Tribunal on the review, therefore, are:
   1. Whether FY suffers from a mental disability;
   2. Whether, by reason of that mental disability, FY is unable to make reasonable judgments in respect of matters relating to all or any part of her estate; and
   3. Whether FY is in need of an administrator of her estate.
2. If those three questions are answered 'yes', then the Tribunal is required to consider subsidiary questions, such as who should be appointed the administrator.

1. Before turning to examine each of the primary questions in more detail, it is appropriate to recall that in dealing with proceedings under the GA Act, the Tribunal is required to observe the principles set out in s 4 of that Act.
2. The primary concern of the Tribunal is the best interests of any represented person.[3] In addition, every person is presumed to be capable of, amongst other things, managing their own affairs and making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the Tribunal.[4] That important presumption applies in respect of every application under the GA Act, including the present Review Application. In considering any matter relating to a represented person, the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the person concerned.[5]
3. Furthermore, 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.[6] In addition, any order appointing an administrator should be in terms that, in the opinion of the Tribunal, impose the least restrictions possible, in the circumstances, on the represented person's freedom of decision and action.[7]

The evidence before the Tribunal on the Review Application

1. FY attended the hearing of the Review Application. We invited FY's views in respect of the Review Application, and took those into account.
2. The Tribunal also received evidence, by telephone, from Dr DP, FY's general practitioner, who has been treating FY since June 2006, and from IB, who is a social worker who has worked with FY for a number of years. It was IB who made the initial application to the Tribunal for the appointment of an administrator in respect of FY's estate.
3. Also in evidence before the Tribunal were a large number of documents and reports pertaining to FY, all of which we have taken into account. That evidence included the following recent reports:
   1. report of Dr DP dated 21 May 2019;
   2. report of Dr MW dated 29 March 2019. (Dr MW has treated FY for many years in respect of the other medical condition referred to at [5] above).
4. In addition, there were various documents prepared by medical practitioners and health professionals who treated FY in October 2015 when she was a patient at a hospital.[8] Those documents included, relevantly:
   1. discharge summary dated 9 November 2015;
   2. report of Dr BP, Clinical Neuropsychologist, dated 5 November 2015;
   3. report of Dr SS, Consultant Psychiatrist, dated 30 July 2015;
   4. outpatient notes of Dr SS dated 25 June 2015;
   5. outpatient notes prepared by Dr SS dated 12 October 2015.
5. There were also reports prepared by service providers engaged in FY's care at various times including:
   1. report of MI, Senior Social Worker, dated 6 May 2019;
   2. reports of IB, Social Worker, dated 22 October 2015 and 8 April 2019;
   3. reports and notes prepared by LD, occupational therapist, following assessments carried out in October 2015.
6. Also in evidence were reports provided by the Public Trustee and the Office of the Public Advocate for the purposes of the Tribunal hearing in June 2019, namely:
   1. report of the Public Trustee dated 7 June 2019;
   2. report of the Public Advocate dated 7 June 2019.
7. Finally, the documentary evidence before the Tribunal included a letter prepared by FY, after proceedings were commenced in the Tribunal, dated 25 March 2019.

1. The term 'mental disability' is defined in s 3(1) of the GA Act as follows:

mental disability includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia[.]

1. For present purposes, six features of that definition of 'mental disability' should be noted.
2. First, the definition is an inclusive one, rather than an exhaustive one. In other words, the ordinary meaning of the term 'mental disability' remains relevant. The Tribunal considered the ordinary meaning of the term 'mental disability' in S and SC.[9] As the Tribunal noted in that case, the ordinary meaning of the word 'mental' is 'of or in the mind'. The Tribunal noted that the word 'disability' has various meanings including 'a lack of some asset, quality or attribute that prevents someone doing something', 'a lack of competent power, strength or physical or mental ability', 'a particular physical or mental weakness or incapacity' and 'any restriction or lack of ability to perform an activity in the manner and within the range considered normal for a human being'.[10] The Tribunal also noted that the meaning of the word 'disability' when used in a legal context is 'an inability to perform some function' or 'an objectively measurable condition of impairment, physical or mental, that prevents a person from engaging' or 'the total or partial loss of a person's mental or bodily functions', including 'a disorder that results in a person learning differently to a person without the disorder and a disorder that affects a person's thought processes, perceptions of reality, emotions or judgments or that results in disturbed behaviour'.[11]
3. The ordinary meaning of the term 'mental disability' in the GA Act thus contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal, or which is objectively measurable. A mental disability may manifest in a variety of ways, including as a disturbance or limitation in a person's thought processes or their cognitive ability, in their perceptions of reality, emotions or judgments, in disturbed behaviour or in learning difficulties.
4. Secondly, the definition of the term 'mental disability' in the GA Act also expressly encompasses certain recognised medical conditions or diagnoses, each of which may result in some impairment in the functioning of a person's mind.
5. Thirdly, one of the 'mental disabilities' to which the definition expressly refers is an 'intellectual disability'. The word 'intellectual' means 'relating to the intellect', and 'intellect' means 'the power or faculty of the mind by which one knows, understands, or reasons, as distinct from that by which one feels and that by which one wills; the understanding or mental capacity, especially of a high order'.[12] The word 'intellect' also means 'that faculty, or some faculties, of the mind ... by which a person knows and reasons; power of thought; understanding; and analytic intelligence'.[13] An 'intellectual disability' contemplates that a person's power to understand or reason is affected by an impairment, incapacity or inability to function in a manner which is outside the normal range, or which is objectively measurable.
6. Fourthly, the definition does not contain any requirement that the 'mental disability' be permanent.[14] Some mental disabilities are permanent, and some (such as some psychiatric conditions) may be experienced transiently. Quite apart from their genetic make-up, an individual's mental ability at any stage of their life may be affected by a range of considerations, including their age, education, their overall health, including their mental health, and in particular any conditions, diseases or disorders which they may suffer or develop over their lifetime, and any injuries they may suffer in the course of their lifetime, which result in permanent or temporary impairment of their mental functioning. For the purposes of the GA Act, it matters not whether a person has a mental disability because they were born with an intellectual disability, whether they have developed an impairment in their mental functioning as a result of a disease or a medical condition, or whether they have experienced that impairment as a result of an acquired brain injury.
7. Fifthly, the definition of 'mental disability' does not require any precise degree of mental disability, measured by reference to some medical or scientific benchmark. That no doubt reflects the fact that a person's mental ability may be located at any one of an infinite number of points along a spectrum, or points plotted on a grid, which represents the various aspects of cognitive functioning, including the speed and ease of information processing, problem solving, reasoning, and memory. For the purposes of s 64 of the GA Act, the only relevant measure, in relation to a person with a 'mental disability', is whether the person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate.
8. Sixthly, nothing in the definition of 'mental disability' under the GA Act requires that a finding of the existence of a mental disability be based on a finding as to the existence of one, or more than one, recognised medical conditions or disorders. A finding that a person has a 'mental disability' may, of course, be referrable to the existence of one, or a combination of more than one, identified medical conditions. In other cases, the underlying cause of a person's mental disability may not be entirely clear, or susceptible to a particular medical diagnosis, but the existence of the mental disability may be beyond doubt.

1. Having regard to the evidence adduced in the present case, we were satisfied on the balance of probabilities, and we find, that FY is a person who has a mental disability, for the following reasons.
2. First, the evidence clearly established that FY was treated in a lengthy hospital admission in 2015 for a major depressive episode and continues to be treated for depression and has been diagnosed with chronic post-traumatic stress disorder (PTSD). In a psychiatric assessment of FY which was undertaken in 2015, Dr SS concluded that FY displayed 'classic chronic PTSD with prominent re-experiencing, avoidance and hyper arousal phenomenon', and a generalised anxiety disorder, 'in the context of multiple psychosocial stressors'.
3. Secondly, and more relevantly for present purposes, we were satisfied that FY has an impairment in her mental ability, with impaired cognitive functioning. The underlying causes or reasons for this limitation or impairment were not clear on the evidence. However, the existence of this mental disability was clearly established by the evidence. The evidence upon which we placed the greatest weight was the report of Dr BP dated 5 November 2015. Dr BP is a Clinical Neuropsychologist who tested FY's cognitive functioning, including by using tests based on visual tasks rather than language comprehension.
4. It is convenient to set out key aspects of Dr BP's overall assessment of FY:

Pre-injury Global Cognitive Functioning

Pre-injury global cognitive functioning refers to an individual's estimated level of general intellectual abilities. It is the benchmark against which current Neuropsychological functioning is compared. ...[P]re-injury global cognitive functioning was estimated to lie below the Low Average range. Test results were evaluated accordingly and revealed:

...

Information processing and complex attention

- [FY's] processing was generally quite slow and her attention span was very short. She seemed easily overloaded with information and lost concentration quickly. When required to mentally manipulate information, she became very overloaded and only held about 2 or 3 items in her mind at a time;

- [FY] was able to follow one [stage] and two stage commands quite well as long as she understood the words being used ... . Her ability to follow three stage commands was not reliable - however, this may have been affected further by the language barrier.

...

Higher level abilities

- [FY's] reasoning and problem solving abilities on non-verbal tasks were in the Extremely Low range;

- She demonstrated poor attention to detail;

- On planning tasks, [FY's] approach was impulsive and without forethought. She got stuck many times and struggled to generate solutions or other ways of solving the problem.

- [FY's] thinking style appeared rigid.

Practical reasoning and problem solving

- ... [I]n general, her understanding of her own finances (amounts that she receives, how much everyday items cost, bills etc) was good. Her reasoning breaks down at a higher level where [FY] has to budget, make complex calculations, and determine the remaining funds available to her and her children.

- [FY's] ability to apply her knowledge and experience from past events, to novel problems that arise seemed limited. She gets stuck easily and has the tendency to make rash decisions.

Formulation and Recommendations

FY is a 37 year old woman with a complex psycho­social situation ... . FY suffers from long­standing PTSD, depression and anxiety on a background of tremendous trauma and deprivation as well as ongoing family conflict. She has been estranged from most of her family and has limited social support. ... A neuropsychological assessment was sought to examine her cognitive strengths and weaknesses ... .

FY is essentially globally illiterate and her understanding of English is limited. On further neuropsychological assessment, there is evidence that FY's intellectual skill may be well below her age matched peers, possibly the Borderline range. However, due to the language and cultural differences, a reliable measure is difficult to obtain. Further, her attention, information processing as well as learning and memory are weaknesses over and above the language barrier. Therefore, FY's ability to take in, understand and retain complex information is very poor. ... FY was found to be highly rigid in her problem solving abilities. She struggles to find alternative solutions to problems and generate ideas. Consequently, FY is a very vulnerable individual who is also open to suggestion and exploitation.

...

FY would benefit from assistance with complex decisions, particularly when it comes to financial and legal matters. Although she can make basic decisions, for more complex matters, it may be helpful for a second person to supervise the process and ensure that errors are minimised ... .

1. A cognitive assessment was also undertaken in the course of FY's assessment by occupational therapists during her admission to hospital in October 2015. The results of that assessment were consistent with the findings of Dr BP. The notes of that assessment, which appear to have been prepared by LD, indicated that:

FY scored within the average range for 'level of consciousness', 'orientation', and 'comprehension'. Mild impairment was noted within the category of 'judgement', with FY scoring within the moderate impairment range for 'attention', 'naming', 'calculations' and 'constructional ability'. FY scored within a severe impairment range for 'repetition', 'memory' and 'similarities'. These scores are concerning and are certain to impact upon her general level of functioning ... .

1. LD noted that the results of the assessment were likely to have been impacted by a variety of factors including language barriers leading to comprehension difficulties at times, poor perseverance, limited schooling, and illiteracy.
2. In her written report dated 21 May 2019, Dr DP expressed the opinion that FY had a mental disability, and referred to the fact that FY had been treated for depression against a background of psychosocial stressors. In the course of her oral evidence, however, Dr DP explained that her opinion that FY suffered from a mental disability was based on the fact that she had been treated for depression and for some post-traumatic stress.[15] Dr DP also explained that FY's depression was presently under control with medication.[16] Dr DP's evidence was that the depression should not affect FY's ability to make day-to-day decisions and did not affect her daily functioning.[17]
3. As for FY's PTSD, Dr DP was asked how such a disorder might impact on an individual who already had difficulties with executive functioning. Her evidence was that it would depend on the enormity of the stress but that she was not able to make any particular comment on how PTSD might impact on FY's cognition.[18] Dr DP conceded that 'those two things might be related at certain points in time but not at every point in time'.[19] The position thus appears to be that FY's PTSD does not manifest in symptoms which are always present, but symptoms of PTSD may manifest at any time in response to stressors.[20]
4. Dr DP was at pains to make the point that she would not necessarily describe FY as suffering from a 'mental disability'.[21] In the course of Dr DP's evidence, we explored the basis for that opinion. It became clear that Dr DP's opinion was attributable to her assessment of the extent to which FY was able to make day-to-day decisions; to Dr DP's view that the challenges faced by FY were attributable, at least in part, to FY's lack of education and her illiteracy; and to Dr DP's resistance to using the label of 'mental disability'. Dr DP accepted that FY:

... does have an executive functioning problem but ... it's not a global intellectual disability, and [that] is why I wouldn't even necessarily call it an intellectual disability. She does have an executive functioning disability, and I think that is solely - almost - almost solely related to her level of education and hence - and because of that lack of executive functioning ability, yes, obviously she does need an administrator. She does need assistance with financial decisions without a doubt. But to classify her - to classify her as having an - an intellectual disability, a cognitive impairment, a mental disability - I think using those terms, I think, are just a little bit too harsh.[22]

1. Dr DP acknowledged in her written report, and in the oral evidence she gave to the Tribunal, that she had not undertaken any assessment of FY's cognitive capacities. Furthermore, Dr DP clearly did not have the specialist expertise of Dr BP in assessing cognitive impairment. Regrettably, Dr DP had not seen a copy of Dr BP's report. However, we summarised its conclusions for her, and Dr DP acknowledged that she did not dispute the conclusions reached by Dr BP.[23] In the end, therefore, Dr DP deferred to Dr BP's greater expertise on this issue.
2. In the course of her evidence, Dr DP became quite emotional. It was clear that Dr DP felt very strongly and sympathetically towards FY's particular circumstances, including her lack of education and illiteracy. However, Dr DP's emotional response led us to doubt the objectivity of her evidence.
3. For those reasons, we did not place any weight on Dr DP's evidence, in so far as she expressed the view that FY did not have a mental disability. However, in so far as Dr DP's evidence was not inconsistent with the opinions of Dr BP and Dr SS (in relation to FY's depression and PTSD) we accept that part of her evidence.
4. For completeness, we note that in her report dated 29 March 2019, Dr MW indicated that there was an 'unclear diagnosis' as to whether FY had a mental disability. However, Dr MW's care of FY has been confined to dealing with FY's other health issues, and it was apparent from Dr MW's report that she did not regard herself as qualified to make an assessment of whether FY had a mental disability.
5. We find that FY experiences depression, and that she suffers from PTSD and anxiety. These constitute psychiatric conditions within the definition of 'mental disability' under the GA Act. According to her general practitioner, Dr DP, at the time of the hearing before us, FY's depression was under control with medication. The nature of PTSD is that it may manifest at any time in response to stressors.
6. We also find that FY has another identifiable mental disability, namely the impaired mental functioning described by Dr BP. That mental disability does not appear to fall within a recognised medical condition or diagnosis, but for the reasons set out at [32] above, it constitutes a mental disability nonetheless. Given Dr BP's expertise, we placed the greatest weight on her opinion. The assessment conducted by LD was consistent with Dr BP's conclusions.
7. The nature of the mental disability described by Dr BP is that of a permanent disability. IB, who has had more recent contact with FY, confirmed that FY continues to manifest problems of the kind identified by Dr BP. IB's evidence was:

... I actually think that it was a really good report that really reflected what I've seen on a day-to-day basis, both in the past and recent months, even. So that definitely hasn't changed and I do think FY becomes very quickly overwhelmed and - and things become chaotic for her and she's not too sure where to go and she kind of shuts down a little bit when things become overwhelming, which I guess is, - is kind of a natural reaction.[24]

1. Having regard to that evidence, we find that FY still has the mental disability identified by Dr BP.
2. In summary, then, we find that FY presently suffers from a number of mental disabilities, which comprise the impaired mental functioning described by Dr BP, together with depression, PTSD, and anxiety.
3. We turn, next, to explain why we were satisfied that FY is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate.

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

1. Section 64(1)(a) of the GA Act requires that a person be 'unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate'. The application of s 64 involves both subjective and objective tests.[25] The Tribunal is required to consider whether the person in respect of whom the application is made has the ability to make 'reasonable judgments' about their estate. That constitutes a subjective test, because the person's ability falls to be assessed in relation to their actual estate. At the same time, the Tribunal must also consider whether the person has the ability to engage in the particular mental process which is required in order to make that judgment, and that test is an objective one. The Tribunal is thus required 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.[26]

1. An individual's ability to make reasonable judgments in respect of their estate may depend on a variety of factors, such as their health, particularly their mental health, at any point in time. Fundamentally, however, a person's ability to make reasonable judgments about their estate requires that they have the intellectual ability necessary to make decisions of that kind. An individual's ability to make reasonable judgments in respect of their estate requires that they have, amongst other things, the ability: to understand the need for, and sources of, income available to them; to understand the value of any income received relative to items of expenditure; to identify and calculate necessary expenditure for day to day living, together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their means; to identify and to assess the financial implications of particular items of expenditure or of financial decisions (for example whether to enter into contracts such as those for the purchase of a phone, household items, a car, or a house); to organise their affairs so as to be able to meet debts as they fall due; and to identify and implement problem solving strategies for resolving any unexpected financial issues.
2. The reference to a person's 'estate' is a reference to the aggregate of their property, their assets and liabilities, and in practice encompasses the entirety of their real and personal property and all of their financial affairs.[27]
3. We turn, first, to explain why we were satisfied that FY is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.

FY is unable to make reasonable judgments in respect of her estate

1. We were satisfied, and we find, that the evidence established that FY is unable to make reasonable judgments in respect of matters relating to her estate. The basis for that finding is as follows.
2. The report of Dr BP, which we have quoted above, referred to the difficulties FY demonstrated in dealing with financial issues and problem solving, other than for very simple matters, such as knowing her income and the cost of everyday items.
3. In addition, IB (who has known FY and worked with her over several years) was able to give more recent, practical examples, of the difficulties FY has experienced with financial decision making. In her report dated 7 March 2019, IB indicated that:[28]

FY does not ask for advice if she is unsure about any decisions, and signs legal documents ... even though she is illiterate and does not necessarily trust all the [information] the other parties provide to her. I had ... educated her on NOT signing any documents that she does not understand or has concerns that the person asking her to sign may not be giving her full or accurate [information]. I have advised her on options where she can gain impartial and correct advice ... . However FY has not taken this advice on board - unsure if this is because she does not fully understand or if she feels pressured into making such decisions by the other party. FY has also stated that she sometimes finds it difficult to 'think' and remember things.

1. In her oral evidence, IB indicated that while she had the greatest contact with FY in 2015/2016, she has had more recent contact with FY since the end of 2018 or the beginning of 2019. She indicated that:

... some of the financial concerns that were of a worry back in 2015/2016 hadn't really gone away when I met her again earlier this year and that's what prompted me and also concerned she's extremely vulnerable to exploitation as well[.][29]

1. IB's evidence was that the matters she had observed which led her to think that there was a problem with FY making reasonable judgments in respect of her estate were:

... a number of issues ... difficulties with filling in paperwork, for example, with Centrelink, Taxation Department and so on, because partly due to her illiteracy, but also she seems to have difficulty with appropriate help seeking and we had supported her through the neuropsychologist to complete some testing. ... I think she really just has difficulty keeping organised, understanding how to be organised ... . There's - there was a lack of organisation for her and oversight about where all her bills were. She has, to a certain extent actually quite a good memory in terms of retaining what she needs to deal with, but it does become [overwhelming] because she's unable to write things down to really keep on track with all her different bills, debts and so on. ... I think the problem is her lack of literacy and her inability to know when to ask for help and say 'I can't do this. I need someone to help me'[.][30]

1. In addition, in her report dated 7 March 2019, IB provided a number of examples of FY's difficulties in decision making connected with her finances. These included matters such as difficulties FY had had in dealing with simple commercial transactions such as a lay-by, and difficulty dealing with the terms of a housing lease in 2015 (due to her illiteracy, FY was unable to ascertain what was in the lease agreement) and had, according to reports, entered into two lease agreements for the same period of time. In addition, IB described how FY was vulnerable to others taking financial advantage of her. She recounted that FY's ex-partner had persuaded her to sign a mobile phone contract for him, for which she continued to pay the bill. On another occasion, a distant relative borrowed FY's car and incurred a substantial number of traffic fines but refused to pay them, which had resulted in FY being left with the liability to pay off those fines. Although the matter had been to court, it appears that FY did not know how to seek help to have the matter dealt with appropriately.
2. IB also recounted that FY recently spent $700 on a birthday party for her young son, and lacked insight into the fact that that was not an appropriate amount for her to spend, having regard to her income level.
3. Finally, IB reported that FY recently paid $5,500 to rent a shipping container to send a variety of goods to her birth country for her family to sell, apparently with the objective of raising money to pay for a family member's medical costs and for spending money for when FY next visits. FY financed the cost of the container through a loan from Centrelink. FY believed that she had made a profit on the transaction, but IB considered that that was unlikely, given the costs involved.
4. Others who have also had contact with FY, or who have assisted her, have expressed concern about her inability to make reasonable judgments in respect of matters relating to her estate. In occupational therapy assessments undertaken in October 2015, LD indicated that in relation to budgeting, FY was able to identify her income as being received from Centrelink but was unable to specify the amount received. LD also indicated that:

when queried regarding expenditure items, FY listed the following: both rents, gas bills, light (electricity) bill, clothes ... and internet. Required prompting to consider water bill, mobile phone credit and her smartrider. However she was able to identify approximate costs of these items. FY advised her younger sister frequently phones and asks for her money. She described being unable to refuse her sister and consistently granting her requests. When queried how she would respond if she only had $20 to last the fortnight for food for herself and the children and her sister requested this money, FY advised she would give it to her. Stated she would try and make the existing food in the home last or ask [ex-partner] for extra money.

1. In addition, in her report dated 6 May 2019, MI, a Senior Social Worker at a hospital, described FY's difficulties in making financial decisions as follows:

Self manages her Centrelink income support payments. Vulnerable when entered into private lease agreement of property ... . Lost bond payments after vacating property, could not negotiate with other housemates. Significant Centrelink debt. Sent shipping container with goods worth several thousands of dollars overseas recently. Not able to access child support payments.

...

Financial management becoming more complicated given debt and loss of income. Likelihood of her illiteracy, limited insight, issues with reasoning and capacity to plan which is limited. While she may have the best intentions, it is unclear how or where she seeks support - usually informally and vulnerable to exploitation.

1. In assessing whether FY has the ability to make reasonable judgments in respect of matters relating to all or any part of her estate, we took into account that FY's income is limited to a Centrelink income and she has no significant assets. In that sense FY's estate is not a complex one. We also took into account her own views about her ability to deal with her estate. She denied having any problems making decisions about money or about her bills or her finances generally. However, it was apparent that FY relied upon Centrelink to make deductions from her payments to pay her bills every fortnight. It was also apparent that if she received a form or a document, she required help to read and understand what that document meant.
2. We asked FY how she would deal with a financial dispute, such as a claim by Centrelink that she owed them money. (As we have noted, FY is currently repaying a large debt to Centrelink.) FY's answers suggested she had little comprehension of how she might handle an issue of that kind, much less to challenge the existence of such a debt or the amount owed. Her answer was that Centrelink would take the money from her fortnightly payment.[31] FY acknowledged that sometimes she felt that issues in relation to finances, such as arguing with Centrelink about the amount of money she owed, were too complicated for her but she said that that did not happen a lot.[32] She said that if things did become too complicated, she would just ask for help, but apart from indicating that she would ask Centrelink or that she would ask 'somebody [who works] with the government', she was unable to explain how she would handle such issues.[33]
3. We digress to observe that the fact that FY had accrued large debts to the ATO and to Centrelink were not, of themselves, indicative of a lack of ability to make reasonable judgments about financial matters. What was more significant, however, was the Public Trustee's report which indicated that following the appointment of the Public Trustee as FY's administrator, the Public Trustee contacted the ATO in relation to the debt it claimed was owed by FY, and that claim has now been resolved. We inferred that without the intervention of a third party, such as the Public Trustee, FY would not have been able to challenge the debt.
4. We also asked FY how she would deal with requests from others that she give them money. She said that that did not occur very much, although she did acknowledge that it occurred sometimes. FY suggested that she would just say that she had no money with her and denied that she would give them money if she did not want to.[34] In light of the evidence as to her past susceptibility to such requests, we were left with real doubt that she would, or would be able to, refuse such requests in the future.
5. We also asked FY about the allegation that she had spent $700 on a birthday party for her young child. Her response was that she had saved that money and if she wanted to use it she had to save it.[35] In view of her extremely limited income, and level of debt, such significant discretionary spending raised real doubts about FY's ability to undertake the process of reasoning about the pros and cons of discretionary expenditure which is essential in order to make reasonable judgments about the financial implications of such expenditure.
6. FY's evidence left us with real doubts as to her ability to assess the realities of her difficult financial position, and to make reasonable judgments, other than in relation to simple transactions or minor financial decisions. More significantly, FY's answers did not cause us to doubt the veracity of the matters raised by others, or the validity of their concerns.
7. Taking into account all of the evidence, we were satisfied, on the balance of probabilities, and we find, that FY is unable to make reasonable judgments in respect of matters relating to all or any part of her estate. We were satisfied, to that extent, that the presumption in s 4(3)(d) of the GA Act had been displaced by the evidence to which we have referred.

FY is unable by reason of her mental disability to make reasonable judgments in respect of her estate

1. Section 64(1)(a) makes clear that an inability to make reasonable judgments in respect of one's estate does not, of itself, constitute a sufficient basis for the making of an administration order. Individuals without a mental disability are entitled to make choices in respect of their estate which others might regard as unreasonable. Nor does the existence of a mental disability, of itself, constitute the basis for the making of an administration order. People with a mental disability may, depending on the nature of the mental disability, be capable of making reasonable decisions in respect of their estate.
2. It is only if the Tribunal is satisfied, on the evidence before it, that a person has a mental disability, and that it is 'by reason of' that mental disability that they are unable to make reasonable judgments in respect of their estate, so that the presumption in s 4(3)(d) of the GA Act is displaced, that the criterion in s 64(1)(a) will be satisfied.
3. The meaning of the phrase 'by reason of' has been considered in many cases and in a variety of statutory contexts.[36] The use of the phrase 'by reason of' in the context in which it appears in s 64 implies a relationship of cause and effect[37] between a mental disability and a person's inability to make reasonable judgments in respect of matters relating to all or any part of their estate. The context suggests that the meaning of the phrase 'by reason of' equates to 'because of' and 'due to'.[38] In determining whether that inability to make reasonable judgments has arisen by reason of a person's mental disability, the practical application of ordinary causation principles is required.[39]
4. In our view, there is no doubt that the mental disability identified by Dr BP - the impairment of FY's intellectual functioning, possibly in the Borderline range overall, together with the limitations in her cognitive functioning, which limit her ability to focus, to process and recall information, to understand and to retain complex information, and to solve problems - are the cause of FY's inability to make reasonable judgments in respect of her estate, other than in respect of simple financial matters. Indeed, Dr BP's report expressly identified that the limitations in FY's ability to reason manifested in the context of higher-level decision making, in relation to matters such as budgeting, making complex calculations and determining the remaining funds available.
5. For so long as FY's depression is adequately managed by medication, that aspect of her mental disability does not appear to impact on her ability to make reasonable judgments in respect of her estate.
6. As for FY's PTSD, the position appears to be that symptoms of PTSD may manifest in response to stressors. If those symptoms developed and were sufficiently severe, they might be a contributing cause for FY's inability to make reasonable judgments in respect of her estate at that point in time. However, that aspect of FY's mental disability does not appear to operate as a constant or ongoing cause of her inability to make reasonable judgments in respect of her estate.
7. The more difficult question was whether, and to what extent, FY's lack of education, and her illiteracy, may also be a contributing cause of her inability to make reasonable decisions in respect of matters relating to her estate. Initially, Dr DP's evidence was that FY's difficulties in financial decision making were attributable to her lack of education and her illiteracy, rather than to any mental disability.[40] However, after it was made clear to Dr DP that the Tribunal sought clarity on the extent to which, apart from her lack of education and her illiteracy, FY's difficulties in financial matters were attributable to an underlying mental disability, Dr DP accepted that:

'yes, look, she does fall into that. She does fall into that. I mean - I mean, I just think it's just - it's really sad that she's a person who has never had the opportunity to go to school'.[41]

1. Notwithstanding the views expressed by Dr DP, we were not persuaded that FY's lack of education and illiteracy are a cause of her inability to make reasonable judgments in respect of her estate. That is not to deny that FY's lack of education, and her illiteracy, makes it more difficult for her to manage her financial affairs. There is no doubt that those factors make financial decisions much more difficult for FY. The point is that while a lack of education or illiteracy may give rise to practical difficulties in making decisions in respect of financial matters, those factors do not, of themselves, render a person incapable of making reasonable judgments about financial matters. That is because practical difficulties of that kind may be overcome, provided that the individual concerned is able to pursue strategies to do so. They may, for example, need assistance to understand financial terms, or to read documents, but provided that assistance is obtained, they will be capable of making reasonable judgments in respect of matters relating to their estate.
2. Other than for the views of Dr DP, nothing in the evidence provided any basis for concluding that if FY had the opportunity to obtain some education, and so to overcome her illiteracy, that there would be any change in her ability to make reasonable judgments in respect of her financial matters. Having said that, we cannot exclude the possibility that if FY were to have the opportunity to obtain some education, and to improve her English literacy, a further, and perhaps more comprehensive, assessment of the extent of her mental disability may be possible.
3. Accordingly, we were satisfied, on the balance of probabilities, and we find, that FY is, by reason of her mental disability (as identified by Dr BP) unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
4. We were, therefore, satisfied, and we find, that the requirement in s 64(1)(a) of the GA Act is met in this case.
5. We turn to explain why we were satisfied that FY is in need of an administrator of her estate.

1. Having regard to the evidence discussed above as to FY's inability to make reasonable judgments in respect of her estate, there is no doubt that she requires assistance to deal with her estate, including to make financial decisions, other than of the most simple kind. It was apparent from IB's evidence and indeed from her initial application to the Tribunal for the appointment of an administrator, that she regards FY as in need of assistance to make financial decisions.
2. In addition, Dr BP expressed the view that:

FY would benefit from assistance with complex decisions, particularly when it comes to financial and legal matters. Although she can make basic decisions, for more complex matters, it may be helpful for a second person to supervise the process and ensure that errors are minimised.

1. Despite the reservations we had about other aspects of Dr DP's evidence, there was no reason to doubt her evidence that FY needed assistance with financial decisions.[42]
2. The question for present purposes, however, is not whether FY needs assistance to manage her estate but whether she needs an administrator to be appointed for that purpose. FY would not be in need of an administrator of her estate if another person, such as a family member, were available to assist her to make decisions.
3. At this point it is relevant to note that in 2015, FY granted an enduring power of attorney (EPA) to her brother and in his absence to her sister-in-law as a substitute attorney. However IB's evidence was that the EPA arrangement was not satisfactory as FY's brother had difficulty obtaining information from FY and found the situation to be unworkable. IB reported that in discussions with FY's brother and sister-in-law, they were agreed that an administrator may need to be appointed because the EPA arrangement had not worked. Consequently, in the orders made by the Tribunal on 21 June 2019, the EPA was revoked. In those circumstances, the revocation of the EPA was clearly the correct and preferable course of action.
4. As we mentioned earlier in these reasons, FY has an adult daughter, IY, who is in her early 20s. However, IY has a small child of her own, and in addition, has in the past expressed concern that 'Mum isn't going to tell me about everything that will need taking care of'. Furthermore, FY's daughter does not reside with her and while she is capable of providing some assistance, for example, to read documents, the evidence fell far short of suggesting that she was sufficiently well-placed to assist her mother so that it could be concluded that there was no need for an administrator to be appointed.
5. We have also taken into account FY's clear desire that the administration order be revoked based on her view that she does not need an administrator. Having regard to the other evidence to which we have referred and to our reservations about FY's insight into her own abilities, we are satisfied that FY is in need of an administrator of her estate.
6. We turn next to the question of whether or not there is a less restrictive means available for such decisions to be made For the reasons we have already given, an EPA is not a reasonable alternative and nor is it possible for any other person to provide the assistance FY needs in financial decision making.
7. We turn then to explain our conclusion in relation to the identity of the administrator who should be appointed.

The Public Trustee should be appointed the administrator of FY's estate

1. Section 68 of the GA Act provides that an administrator needs to be an individual of, or over, the age of 18 years 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 the administrator of the estate of that person. For the purposes of establishing suitability, the Tribunal has to take into account, as far as possible, the compatibility of the proposed appointee with the person and the wishes of that person and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
2. For the reasons previously outlined, it is apparent that neither FY's brother, nor her daughter, is in a position to act as an administrator of her estate. In any event, there was nothing before us on the review to indicate that they had, or would, consent to act as the administrator. We are satisfied that the appropriate person to be appointed the administrator of FY's estate is the Public Trustee.
3. We are also satisfied that it is necessary that the administration order confer plenary functions on the Public Trustee, in the best interests of FY.

1. The Tribunal is required to nominate a period of time by which a review of the administration order must be made. The maximum time allowed under the GA Act is five years. In this case, we consider that it is appropriate to review the order in 2021, as the Member concluded at the hearing on 21 June 2019. We have reached that view for three reasons. First it is possible that over time, FY's daughter may be in a position to act as her administrator. Secondly, at some stage in the future, as her younger children reach full time school age, it may be possible for FY to undertake some education, at the very least to improve her literacy. That in turn may permit a more precise assessment of the extent of her mental disability. Finally, it is possible that with the assistance of the Public Trustee, further improvements in the state of FY's financial affairs may be achieved (for example, in relation to her debts) and that may alter the overall complexity of the financial decisions that may have to be made as part of her estate in the future, which may also impact on the appointment and choice of an administrator. We consider that a review in two years would be a reasonable period within which to reconsider the appointment of an administrator, taking into account these possible variables.

The order we made on 18 October 2019 was as follows:

1. The orders made on 21 June 2019 are affirmed, namely:

The Tribunal declares that the represented person, FY is:

(a) unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and

The Tribunal orders:

Administration

1. The order made on 15 March 2019 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
2. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3. The administrator is authorised to expend up to a total amount of $500.00 per annum on gifts on behalf of the represented person.
4. The enduring power of attorney dated 14 November 2015 by which the represented person appointed PK to be their attorney, is revoked.
5. The administration order is to be reviewed by 20 June 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] State Administrative Tribunal Act 2004 (WA) (SAT Act) s 27(1).

[8] The Tribunal enquired as to whether the practitioners who treated FY in 2015 were able to provide current medical reports, but they declined to do so, as they had not had any clinical contact with FY since 2015 and were not in a position to add to the opinions they had offered at that time.

[9] S and SC [2015] WASAT 138 (Member Leslie).

[13] Oxford English Online Dictionary.

[14] In contrast, see for example the definition of disability in s 3 of the Disability Services Act 1993 (WA).

[21] ts 10 - 12, 14, 25 September 2019.

[25] FS [2007] WASAT 202 [106] (Barker J, Ms Toohey & Mr Mansveld); Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 [45] (Pritchard J).

[26] FS [110] (Barker J, Ms Toohey & Mr Mansveld); Public Trustee v Brumar Nominees Pty Ltd [45] (Pritchard J).

[27] SAL and JGL [2016] WASAT 63 [22] (Parry J, Dr B De Villiers & Ms Quinlan) ; see also Interpretation Act 1984 (WA) s 5; and see also the long title to the GA Act, which refers to the administrator providing assistance in the management of a person's financial affairs.

[28] Additional report of IB attached to the application to appoint a guardian or administrator (7 March 2019) 4.

[36] See the discussion of the cases in Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd [1993] FCA 535; (1993) 46 FCR 301, 321 (Lockhart J).

[37] Republic of Croatia v Snedden [2010] HCA 14, (2010) 241 CLR 461, [22] (French CJ); Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd [1993] FCA 535; (1993) 46 FCR 301, 321-2.

[38] Republic of Croatia v Snedden [2010] HCA 14, (2010) 241 CLR 461, [22] (French CJ); Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd [1993] FCA 535; (1993) 46 FCR 301, 321-2.

[39] Cf Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202, 213; see also March v E and MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515 - 519 (Mason J), 522 - 524 (Deane J), 524 (Toohey J), 525 (Gaudron J).