AA
[2024] WASAT 42
•8 MAY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: AA [2024] WASAT 42
MEMBER: DR E MARILLIER, SENIOR MEMBER
HEARD: 11 APRIL 2024
DELIVERED : 11 APRIL 2024
PUBLISHED : 8 MAY 2024
FILE NO/S: GAA 1440 of 2024
AA
Proposed Represented Person
COMPLEX NEEDS COORDINATION TEAM
Applicant
Catchwords:
Guardianship and administration - Acquired brain injury - Cultural and linguistic barriers - Complex needs - Suitability for appointment
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(7), s 40, s 44, s 44(2)(d), s 68, s 84
Result:
Private limited guardian appointed
Public Advocate appointed limited guardian with separate authorities from the private limited guardian
Public Trustee appointed plenary administrator
Category: B
Representation:
Counsel:
| Proposed Represented Person | : | In Person |
| Applicant | : | In Person |
Solicitors:
| Proposed Represented Person | : | N/A |
| Applicant | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This application was made by the complex needs coordination team (CoNeCT team) at Royal Perth Hospital. It seeks the appointment of a guardian and an administrator for AA under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act). AA is 41 years old.
AA sustained a severe acquired brain injury in 2007, which has left him with post traumatic epilepsy, cognitive impairment and behavioural challenges. Currently he finds himself homeless, banned from the religious community at which he wishes to worship, and coming to the attention of police via the Fixed Threat Assessment Centre.
The CoNeCT team became involved in his case after AA missed several hospital appointments.
AA has received support from members of his community, particularly friends M and IA, and support worker A.
I made orders on 11 April 2024 appointing IA as AA's limited guardian for two functions and the Public Advocate as his limited guardian in other domains. I also appointed the Public Trustee as his plenary administrator. Because of AA's difficulties with memory and comprehension and the language barrier for him and his friends, I decided to provide the reasons for my decision in writing, so that they can have the opportunity to review them without being rushed. These are those reasons.
The principles to be observed
In making a decision the Tribunal must observe the following principles:
•the Tribunal's primary concern is the best interests of the person concerned;[1]
•every person is presumed to be capable of looking after their own health and safety; making reasonable judgments in matters relating to their person; of managing their own affairs; and of making reasonable judgments in respect of matters relating to the estate; until the contrary is proven to the satisfaction of the Tribunal;[2]
•orders shall not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action;[3] and
•the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned.[4]
[1] GA Act, s 4(2).
[2] GA Act, s 4(3).
[3] GA Act, s 4(4).
[4] GA Act, s 4(7).
Capacity
Dr ST, a rehabilitation physician, reviewed AA and wrote a letter summarising her findings on 20 March 2024.
Dr ST indicated that AA suffered a traumatic brain injury including subdural haematoma requiring surgery in 2007. He has subsequently had multiple hospital admissions for seizures and episodes of loss of consciousness. She noted he has also suffered a motor vehicle accident in 2021.
Imaging with MRI in 2021 and repeat neuroimaging in 2023 demonstrated permanent changes to multiple areas of AA's brain, with encephalomalacia.
Dr ST documents clinical assessment by herself and an occupational therapist demonstrating that AA has significant impairments in cognitive, functional and neurobehavioural domains. Particularly she noted global impairment of cognition including memory, attention, orientation, executive function, problem-solving, judgment and insight.
Dr ST documents history from AA and his friends that he is homeless, being brought food by them, and unable to comply with personal hygiene even with prompting and provision of facilities. Friends are also concerned that AA has no knowledge of what is happening with his Centrelink payments and is frequently without funds for basic essentials.
AA's contact with the Fixed Threat Assessment Centre due to aggressive behaviour, being overly familiar with children, and using water in a public area in a religious setting to wash himself and then walking around naked are detailed in Dr ST's report as examples of the behavioural challenges arising from his brain injury.
Oral evidence from his friends and from the CoNeCT team is consistent with the evidence from the doctor.
AA himself during the hearing gave evidence that he is very grateful for the support of his friends. It was clear throughout the hearing that AA was having difficulty remembering the answers to questions given only minutes earlier. He asked repetitive questions and was unable to comprehend the role of the Tribunal despite the assistance of his trusted friends and a professional interpreter.
AA did identify that he has struggled to achieve long-term accommodation or access to the National Disability Insurance Scheme (NDIS). He indicated that he would like help with securing accommodation, assistance with transport, shopping, accessing religious facilities, and making and attending appointments.
Social worker DT provided a written report and oral evidence. He noted the complexity of the situation and AA's needs. During his involvement, it has been apparent that AA is unable to remember appointments or to make plans to attend them. He has been unable to take his required medications without daily support and is unable to arrange his own accommodation.
All of the evidence is consistent, and I am satisfied, and I find that by reason of a mental disability (traumatic brain injury) AA is not able to make reasonable judgments about either his estate or his person. I am satisfied that he is not able to look after his own health and safety or to manage his own affairs. The presumption of capacity is set aside.
Need
Secure accommodation, appropriate supports, advocacy in financial and legal spheres, and medical treatment decisions are all unmet needs in AA's case.
The informal support provided by AA's friends, and the CoNeCT team's involvement have not been sufficient to alleviate the risks to AA's health and safety that exist as a consequence of his acquired brain injury.
I am satisfied and I find that there is a need for the appointment of both an administrator and a guardian for AA.
Who should be appointed
AA's friend IA indicated that he was willing to be appointed as the guardian but not the administrator for AA.
I have considered the criteria in s 44 of the GA Act which set out the factors which should be taken into account by the Tribunal when determining who may be appointed as guardian, and s 68 which is the equivalent section in regard to appointing an administrator.
AA supported the appointment of IA. IA expressed a strong sense of moral obligation to care for AA. I have no doubt that IA would seek to make decisions in the best interests of AA.
My concerns about appointing IA to be the substitute decisionmaker in all the domains where AA requires that assistance arise from doubt about whether he will be able to perform the functions vested in him (s 44(2)(d) of the GA Act). This is because AA's needs are extremely complex and arise across multiple intersecting areas of Australian bureaucracy. IA and AA face cultural and linguistic barriers that make an already challenging situation far more difficult to navigate.
The Public Advocate investigator recommended that split authorities by which IA would be the limited guardian for medical treatment and accommodation decisions, and the Public Advocate would be the limited guardian for services decisions, restrictive practices decisions under the NDIS, and legal advocacy, might be the optimal arrangement.
M who is IA's wife, indicated that she herself was not willing to be appointed, due to her responsibilities as the mother of small children. She was very supportive of AA, but not in a position to take on the additional responsibilities of being his guardian and administrator. M supported the recommendation of the Public Advocate for split authorities.
A indicated that she believed split authorities with at least legal decision-making sitting with the Public Advocate would be best for AA, due to the complexity of the situation.
DT recommended that either the Public Advocate be appointed for all functions, or split authorities.
DT noted that due to the very close friendships between support worker A and AA's friends M and IA, it was important that the services authority, by which ongoing support arrangements for AA would be determined, sat with an independent decision-maker.
I am satisfied, and I find, that IA is suitable to be appointed as the limited guardian for AA with the functions of medical treatment decision-making and accommodation. I believe that with the assistance of interpreters, he will be able to support AA in those domains. In the other areas of need, I find that the level of complexity in AA's needs, and the potential for conflicts of interest in services decision-making preclude IA's appointment in those domains at this time, as I am not satisfied he will be able to perform those functions currently.
Consequently, I must appoint the Public Advocate as AA's limited guardian for services, NDIS restrictive practices, as next friend and guardian ad litem, and to seek legal advice and representation and advocate on AA's behalf in relation to any police investigation or criminal matter.
There is no alternative to the appointment of the Public Trustee as the plenary administrator for AA.
Term
The Tribunal must specify a period within which the orders must be reviewed.[5] In this case, because AA has a supportive friend willing to be appointed in a wider scope than is currently in his best interests, I have determined to review the orders within 2 years in the hope that the circumstances may have changed significantly for AA, and it may be possible to alter the allocation of the functions of the guardian between the private and public guardians.
[5] GA Act, s 84.
For those reasons, on 11 April 2024 I made the following orders.
Orders
The Tribunal declares that the represented person, [AA] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)in need of an administrator of his estate;
(c)incapable of looking after his own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to his person;
(e)in need of oversight, care or control in the interests of his own health and safety; and
(f)in need of a guardian.
The Tribunal orders:
Administration
1.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).
2.The administration order is to be reviewed by 11 April 2026.
Guardianship
3.[IA] of [address suppressed] is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live; and
(c)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA).
4.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to provide information to and receive information from any treating health professional of the represented person;
(b)to determine the services to which the represented person should have access;
(c)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;
(d)as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person;
(e)to seek legal advice and representation on behalf of the represented person, and to advocate in relation to any police investigation, criminal charges or related proceedings;
(f)to decide whether to give or withhold consent to the use of any restrictive practices proposed in any behaviour support plan developed from time to time for the represented person in compliance with the requirements of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018.
5.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
6.The guardianship order is to be reviewed by 11 April 2026.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, SENIOR MEMBER
8 MAY 2024
0
0
1