The applicant reports that 'neuropsychological findings [of the assessment of the represented person] show global cognitive impairments, including particular weakness in his reasoning and executive functioning skills'. The majority of his performances fell within the extremely low range including tests of his verbal intellectual abilities, visuospatial skills, working memory and speed of processing information. Overall findings are said to be consistent with [the represented person's] previous diagnosis of intellectual disability (mild to moderate).
The applicant asserts that the findings strongly suggest that [the represented person] does not have the capacity to execute an EPA or EPG or make reasoned decisions about his medical treatment or finances, by reason of a mental disability (intellectual disability).
The applicant says that the represented person signed an EPA and EPG without understanding the nature of these documents. In the report of the assessment the applicant refers to an EPA signed by the represented person on 13 May 2017 and an EPG dated 14 July 2017 which appoint his father as his enduring attorney and guardian.
Copies of the first pages of an EPA and EPG bearing these dates (but not the complete documents) were before the Tribunal.
The applicant reported that in his opinion the represented person's responses to questions suggested 'a limited understanding of the value of money'. The applicant says that the represented person provided grossly inaccurate estimates of his pension income and other financial information. The represented person had responded that his DSP was '300 grand' per week. The applicant says that the represented person confirmed this amount when challenged about the amount.
The applicant states that the findings of the neuropsychological assessment of the represented person were discussed with both parents of the represented person.
In the hearing, in response to criticism by the father of the conduct of the assessment of the represented person alone, that is without the father present, the applicant stated that the assessment was conducted over some hours and in accordance with standard testing protocols.
JA [2018] WASAT 68 | Case summary | Zoe
The findings of the neuropsychological assessment of the represented person were challenged by the father. In particular he said that he believed the represented person had become confused about a question about his DSP. He said the response of the represented person could be explained because they had been speaking about a potential back payment of underpaid wages and the represented person had adopted the figure of $300,000 as the amount of his DSP because this was the figure suggested to him by the father as a potential amount of back pay of his underpaid wages. The father reported that the represented person had received $24,000 in back pay of wages following the father's intervention.
The applicant agreed that the represented person may have been confused about this issue and that he can learn but said that the represented person's ability to retain more complex information is very limited and this impacts on his ability to make judgments about his finances.
The father says he recognises that the represented person has a mild intellectual disability but that he should not be considered to be incompetent in paying his bills and managing his assets.
The father says that under his supervision the represented person can bank online, pay creditors and meet costs for groceries, fuel and internet access. The father says the represented person will advise of the father's share of the household costs and he then transfers the amount to the represented person's bank account.
The father asserts that he is teaching the represented person financial management skills and they regularly review their finances together. The father states that the represented person embraces the skills the father has been teaching him with 'a passion'.
The applicant's assessment of the represented persons lack of understanding of his finances and the value of money is supported both by the evidence of his sister and by the report of the interview conducted by the Public Advocate's investigator with the represented person. The sister says the represented person does not understand the value of money giving the example that the represented person had given her three different figures of $50, $500 and $5,000 as the purchase price of a costume.
The report of the interview by the Public Advocate's investigator was that the represented person could not recall details of his wages, had to be prompted to report he had a pension and could not recall the amount. When discussing a housing loan to purchase a property together with his father the investigator reported that the represented person had suggested that he and his father would borrow $400.
The applicant reports that although the represented person is understood to have had multiple discussions with his father regarding the functions of an EPA and EPG prior to the neuropsychological assessment, that the represented person was 'unable to accurately describe the purpose of an EPA or EPG' when asked about this at the assessment. The Public Advocate's investigator reports the responses of the represented person regarding the EPA when interviewed. In those reported responses the represented person does not demonstrate an understanding of the nature and effect of these documents.
The applicant notes that these documents were 'rescinded' by the represented person on 22 February 2018. He says this occurred after he had raised his concerns about the represented person's decisionmaking capacity. In the hearing the father said that the documents had been destroyed.
The applicant also gives the opinion that the represented person lacks capacity with respect to medical treatment, accommodation and services decisions but that from the available information there did not appear to be a current need for such decisions to be made. However he did note that if there was to be a significant change in the represented person's accommodation and services that the represented person may require a guardian to be appointed at that time.
The applicant provided a number of historical assessments of the represented person by both school and Disability Services Commission psychologists, dated 1993, 1995, 1998, 2001 and 2010. The applicant asserts that his findings are consistent with previous assessments of the represented person which found that he had a moderate intellectual disability (2001) intellectual disability (2010) and that his adaptive behaviour fell within a 'disabled' range.
The Tribunal also received a report from the Local Coordinator of Department of Communities Disability Services dated 16 May 2018.
The Local Coordinator reports that the represented person:
was found eligible to receive services through the Disability Services (Commission) in 1993 following an assessment of an intellectual disability;
continues to need support with financial management as discussed with the father in planning sessions;
is supported in managing his finances by his parents with his father undertaking most of this within his role as the main carer;
has funded support to access the community and to develop skills;
is waitlisted for accommodation through the Department of Housing; and
both parents have sought information from the Local Coordinator about administration orders because of conflict around financial matters.
The Local Coordinator submits that:
the continuing provision of funding for development of money skills indicates the represented person needs assistance in this area;
the represented person's 'intellectual disability and willingness to trust others would certainly make him vulnerable to financial exploitation'; and
his 'main focus and longterm goal is to be able to live independently with friends in a rental house or home of his own'.
The father does not accept the assessment conducted by the applicant and rejects the conclusions drawn from the assessment regarding the inability of the represented person to manage his own financial affairs. The father did not challenge the opinion of the applicant that the represented person was incapable of executing an EPA and EPG.
The father did not provide any other professional or other medical assessments of the represented person's capacity but indicated that his nearly 30 years of personal experience regarding the represented person's memory and his capacity to manage his financial matters should be preferred to that of the assessment conducted by the neuropsychologist.
The mother of the represented person and his sister both agreed that the represented person cannot manage his own financial affairs. The Public Advocate's representative supports the applicant's opinion that the represented person is not able to independently manage his finances.
The applicant says that the represented person has always been supported in his financial management by family members and although there has been historical conflict between his parents about the management of his finances that the current arrangements are said by them to be working.
In respect of the informal management of the represented person's finances by his parents, it is agreed by all of the parties that during the period he was in his mother's and stepfather's care the represented person was able to save about $34,000 from his pension and wages and that through the efforts of his father that an under payment of wages was recovered in the amount of $24,000. The represented person now has $57,000 in his bank accounts.
It seems that the represented person's finances had been managed by his parents apparently effectively up until 2017 when the conflict between the parents arose which resulted in the transfer of his funds and the freezing of his bank accounts. From the statements of the father it seems that up until that time the mother would release funds on the request of the represented person or the father.
In his written submission dated 20 June 2018 the father states that following the refusal more than a year ago by the mother to give him the represented person's bank statements, passport and birth certificate, the father instigated an EPA and EPG [for the represented person] which 'allowed him to act on [the represented person's] behalf' with the represented person's 'full understanding and approval'.
The father says that in May 2017 he obtained seven years of bank statements on the accounts of the represented person and conducted an 'audit to determine if there were any discrepancies present'.
The father says that on the represented person's behalf and 'with his full and complete understanding', it was decided to freeze the represented person's primary savings account containing $34,000 until the mother clarified the discrepancies or agreed to transfer the balance to a newly created account.
The mother is then reported by the father to have arranged for the transfer of the funds to an account in her name. Later the funds were retransferred to another frozen account following intervention by the father and a complaint being filed with the bank.
A typewritten schedule was handed up in the hearing by the father. The father said that it was a list of unauthorised cash withdrawals or questionable expenditure by the mother from the represented person's bank account between September 2007 and July 2014. The father indicated that he had not provided this list of transactions to the Public Advocate's investigator prior to the hearing because he did not consider it was relevant.
The father asserted that there had been transactions by the mother on the represented person's account without the represented person's knowledge and that the represented person would remember transactions especially several large cash transactions made in 2010.
The father identifies an estimated potential loss to the represented person's estate of $22,000 from these transactions and says that there had not been a complete explanation for expenditures given by the mother but that he has no way to pursue any further investigation.
The mother said she had previously given an explanation for some expenditures to the father. In respect of the cash withdrawals made in 2010, the mother said she had approached the bank and had been told that these were effected by the represented person attending the branch and withdrawing funds himself. The father did not appear to accept this explanation.
The father's assertion that the represented person would remember the 2010 transactions (because of the amounts) was not supported by the applicant who said that the represented person would have at least as much difficulty remembering bank transactions from 2010 as any other person and probably more so.
The represented person did recall and was able to give an explanation of another of the challenged transactions (from October 2011) being a payment of $85 for a garden clean-up. The father alleged that the represented person's mother had benefited by this payment but the explanation given by the represented person in the hearing indicate that this was not the case.
The mother said she had attempted to provide some protection for the funds of approximately $34,000 which had been saved by the represented person from his pension income and his wages while living with her and his stepfather by creating an account in joint names of herself and the represented person and had not been aware that he was able to transact on the account without her.
The sister of the represented person supported the mother's explanation and asserted that her mother had never used funds of the represented person for herself but had acted only in interests of the represented person.
The evidence of the mother in relation to these matters appeared to the Tribunal to be credible and the assertion by the father that there had been, in his word 'misrepresentation of [the represented person's] funds' by the mother is not consistent with the saving of the large amount of money by the represented person from his pension and wages from supported employment when he was living in his mother's care.
Considering the timeline given by the parties, it is possible at the time of the cash withdrawals in 2010 that the represented person was living independently with some external supports. Given his reported mobility and access to the community and his engagement with services during the period it is possible that either the represented person or someone else accompanied him to the bank and accessed funds from his account.
In respect of the freezing of a bank account and the allegation by the father made in the hearing that the mother lied to the Tribunal about this event, this is not accepted. Both parents assert they independently took steps to freeze the represented person's bank account and this is possible. In any event nothing turns on this.
Where the evidence of the mother and father is in conflict in relation to this matter I consider is more likely than not that the mother has provided an accurate recollection of the events.
Although the schedule submitted by the father is said to identify questionable transactions which may amount to a loss to the estate of $22,000 it is not possible to conclude this from the material provided to the Tribunal. The father asserts that the mother is responsible for this potential loss but considering the whole of the evidence before the Tribunal this assertion is not accepted.
In respect of the question of whether the represented person lacks capacity to make reasonable judgments about his estate I prefer the evidence of the applicant regarding the represented person's intellectual disability, his memory impairments, lack of appreciation of the value of money his inability to reason and make judgments about financial matters, to that of the father's assertions that the represented person manages and has an understanding of his own financial affairs.
The opinion of the applicant is supported by the formal assessments conducted, is consistent with historical assessments, the represented person's registration with DSC, the report of the Local Coordinator by both the represented person's mother and sister and the Public Advocate's representative and with his responses in the hearing.
Although the father of the represented person says he rejects the neuropsychological assessment findings and maintains that the represented person can manage his own financial affairs his submission is not consistent with the father's own conduct and how the affairs of the represented person have been managed by him.
I accept the submission of the Public Advocate's representative that the 'audit' which the father says he conducted in May 2017 of seven years of the represented person's bank statements illustrates that the father believes that the represented person could not protect his own interests over that lengthy period such that an 'audit' of expenditure was required.
There are other examples where the father's conduct suggests that he believed that the represented person required assistance with decisionmaking and the management of his finances; the father's evidence of his close supervision of the represented person's online banking, his instigation of an EPA and EPG so he could act on behalf of the represented person, his actions to freeze the represented person's bank account, and his action to recover underpaid wages of the represented person.
I do not accept that the represented person had a full understanding of these issues as asserted by the father. In light of the reported impairments of the represented person, the evidence of other family members and his presentation in the hearing I find that the represented person was not able to initiate any of these actions on his own behalf and the father made these decisions.
I am satisfied, on the evidence before me, that the presumption of capacity of the represented person is set aside and I find that the represented person is unable, by reason of a mental disability being an intellectual disability, to make reasonable judgments in respect of matters relating to all of his estate, and is therefore a person for whom an administrator order may be made.
[2]
Is there a need for the appointment of an administrator
[3]
In determining whether the represented person is in need of an administrator, the Tribunal must first consider whether his needs can be met in a way that is less restrictive of his freedom of decision and action than a formal appointment.
The father says that the accusations he made against the mother and the 'audit' he undertook of the represented person's bank account caused the application to be made to the Tribunal. He says the application caused a lot of friction and was a waste of time and served no purpose.
The father says that there is no need for intervention and or oversight by the Public Trustee ( either as administrator or pursuant to s 80 of the GA Act where the Public Trustee can require a private administrator to submit accounts) and that the applications should be dismissed as unwarranted and unjustified as all disputes and conflicts have been resolved.
The statements of the father and his demeanour in the hearing demonstrate in the view of the Tribunal the continuing lack of trust between the parents about financial matters and the presence of conflict despite the father's repeated statements that the conflict has been resolved and he has moved on.
The father said there was no need for external oversight as he maintains the represented person's autonomy through training and learning and the establishment of his credit rating. The father said that no one was more qualified than he to undertake the management of the represented person's finances as he has a business background and only he as the direct carer can provide one-to-one assistance to the represented person.
The father said that no one understood the stress levels he is experiencing as a carer.
In his written submission the father says that he and the represented person have,
[4]
... formed long term plans including the construction of a home through Keystart. Unfortunately [the represented person] does not have sufficient income to service a mortgage on his own but with my income we will be able to apply for a home loan. [The represented person] clearly understands renting a home is not the preferred option. My share of the home would obviously be willed to [the represented person].
[5]
In the hearing the father confirmed these plans and said that the represented person would contribute his funds to the deposit on the property and that the father would contribute to the purchase price of the property through his contribution to the payment of the housing loan. It was intended that the property be held as tenants in common as a half share. The father said that the location of the property would not be a choice as such but be dictated by price.
In assessing the proposal that the represented person's finances continue to be managed informally, the Tribunal must consider whether the needs of the represented person would be met in this arrangement.
In his evidence the father said that in 2014 the represented person had moved back to live with his mother (from living with his father) because the father had closed his business for medical reasons, had declared bankruptcy, lost his home and was destitute. The father said he lived with his brother for three months at this time.
The father said that he was now on a DSP but was establishing a business and planned not to be reliant on the pension in the future. The father declined to answer any questions about his health as he said they were not relevant to the application and that he had been given a clean bill of health by his general practitioner.
The father said that he had been discharged from his bankruptcy in May 2017. He said that he had to wait two years after his bankruptcy and it would be August 2019 before he could make an application for a housing loan.
The father said that he and the represented person had spoken to a number of people and investigated their options in relation to the purchase of property. The father said that a third tenant may live with them in the proposed property to share the housing costs. He said that the represented person could not afford to purchase a property on his own. The father later agreed that he too could not afford to purchase a property on his own.
In response to the proposal for the purchase of the property by the represented person and her father, the sister of the represented person said that this decision should not be rushed and that the location where the represented person lived was extremely important to his functioning. She said that he needed to continue to be close to family members including to her and their mother and also to be able to access his employment.
The sister said that while the father and the represented person may have spoken to legal representatives and others that the rest of the family had not been involved in the decision and should be consulted. Any decision regarding long-term accommodation for the represented person needed to be closely considered by the family together.
To capably execute an EPA the donor must be of full legal capacity (s 104(1a) of the GA Act). The opinion of the applicant, which I accept, is that the represented person is unable to capably execute an EPA. The execution of an EPA for the management of the represented person's affairs is not an option for him. The EPA which had been executed has been destroyed.
The proposal by the father that the application be dismissed and that the operation of the represented person's continue as it has done for the past years is essentially a submission that the father continue to supervise the represented person's finances with no external monitoring.
As referred to above, the father asserts there has been a loss of several thousand dollars to the represented person's estate.
In respect of the allegations about financial mismanagement or misappropriation by the mother these allegations are not accepted. There is however a lack of certainty on the part of represented person and both his parents about the cash withdrawals made in 2010.
It may be the case that there was a failure to put in place sufficiently protective arrangements in light of the vulnerability of the represented person and what is understood to be his lack of appreciation of the value of money. The lack of certainty about the withdrawals in the past and the continuing vulnerability of the represented person reinforces the need for more formal arrangements for the management of his estate to be in place.
On his own evidence the father does not accept that the represented person's decision-making capacity is impaired. This, in the judgment of the Tribunal is likely to compromise his ability to provide an appropriate level of supervision and control of the represented person's expenditure.
The father states that he is experiencing carer stress and it is unclear how long he will continue as carer and be able to provide what he says is close supervision of the financial management of the represented person.
The father on his own evidence has experienced extreme financial circumstances describing himself at one stage as destitute. The father said in the hearing that he has no savings, his only income is a DSP. It appears that he is in somewhat difficult financial circumstances and that there is a disparity between the resources available to the represented person and the father.
The EPA which has now been destroyed appears to have been executed and acted on by the father during the period of the father's bankruptcy. Section 107 of the GA Act which sets out the obligations of a donee of an EPA, provides that if the donee of an enduring power of attorney becomes bankrupt the attorney is required to report that bankruptcy to the Tribunal. The Tribunal may revoke an EPA on receiving such a report. (see s 109(3) of the GA Act). In s 85(1)(e) of the GA Act the Tribunal is to review an administration order if the administrator is bankrupt.
These provisions alert the Tribunal to the consideration of whether it is appropriate that a bankrupt have the management and control of the financial affairs of either the donor of an EPA or a represented person. I consider that they also provide guidance regarding the appropriateness of any proposed less restrictive alternative for the management of an estate of an incapable person. The past bankruptcy of the father is a relevant consideration when assessing his proposal for his informal supervision of the represented person's finances as a less restrictive alternative to the appointment of an administrator of the represented person's estate. The best interests of the represented person and as part of that, the security of the estate from any loss must be the primary concern of the Tribunal.
The Public Advocate's investigator submits that there may be a conflict between the father managing or overseeing the finances of the represented person and the purchase of property as proposed by him. It is the case that the father did not appear to have considered the disparate contributions to the purchase price of the property or the issues raised by the sister in respect of the needs of the represented person regarding the location of where he lives.
I am satisfied, on the evidence before me that in the current circumstances there is no less restrictive means to meet the needs of the represented person for oversight and appropriate control of his financial affairs.
I find that it is in best interests of the represented person that there be accountability and oversight through the appointment of an administrator and the likely requirement that the Public Trustee will require that administrator to file accounts (s 80(1) of the GA Act). This oversight should reassure all members of the family that the represented person's affairs are managed in his interests and may reduce conflict.
In addition to the need for day to day oversight and accountability for the management of the represented person's estate which he does not have the capacity to undertake himself, I accept the submission of the Public Advocate that there is a need for an independent assessment of the proposal by the father that the funds of the represented person be applied to the purchase of a property for the represented person and the father.
In these circumstances the order should be a plenary one.
[6]
Neither parent proposed their appointment. The father said there should be no orders as there was no need of supervision and the mother supported the appointment of the sister of the represented person.
The father did not support the proposal that the sister of the represented person be appointed as the administrator and said she was not qualified to handle it because he said she had approached him to seek assistance for a house deposit from a nephew who had received a large inheritance.
The sister proposed herself for appointment and said she had no doubt she could manage the estate her only concern was the 'argy-bargy' meaning the potential conflict in the family. This point was also raised by the Public Advocate's representative who expressed concern about the possible impact on relationships of the appointment but confirmed it was the wish of the represented person that a family member be appointed. The Public Advocate supported the appointment of the sister and a shortterm order to assess the operation of the order in light of these concerns.
The sister of the represented person is aged 30 years, is employed and her job involves purchasing for a family business. She expressed her willingness to support her brother and from the information before the Tribunal lives close to him and is in regular contact with him.
The estate is not a large or complex one involving as it does a pension income and wages from supported employment and accumulated savings. The represented person has daytoday expenses which must be met and housing and utility costs shared with his father.
The Tribunal is satisfied that the sister is able to perform the functions required of the administrator of the estate. Her statement in the hearing about the considerations involved in determining whether the represented person should purchase a property indicated a thoughtful approach to the issue and an ability to assess his needs.
The Tribunal is satisfied that the sister will work cooperatively with the represented person and with other family members. The only complexity is likely to arise is in the navigation of the conflictual family relationships. The father was agitated in the hearing when the order was announced and it was clear that the represented person was aware of this, attempting to reassure those present that his father was not like this at home.
The represented person expressed his wish that either his parents or his sister be appointed as the administrator. It was clear in the hearing that he and his sister had a warm and close relationship and that the sister could provide to him the hands on support that the father asserts the represented person needs to maintain his independence. The Public Advocate representative supported the appointment of the sister, as administrator
The Tribunal is satisfied that the sister is suitable for appointment and that her appointment is consistent with the wishes of the represented person as expressed in the hearing and to the Public Advocate's investigator. The appointment of a family member is the least restrictive order possible in the circumstances.
Although, given the evidence about the represented person's capacity and vulnerability, I consider he will likely be in need of a substitute decisionmaker in the longer term, I accept the submission of the Public Advocate's representative that the order should be made for a shorter period to assess how it is working to meet the needs of the represented person.
[7]
For the reasons given, the Tribunal declares that the represented person, JA;
[8]
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
[9]
SA is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
The administrator is authorised to expend up to a total amount of $300.00 per annum on gifts on behalf of the represented person.
The administration order is to be reviewed by 20 December 2019.
[10]
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.