AL - [2012] WASAT 206

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AL [2012] WASAT 206

MEMBER: MS F CHILD (MEMBER)

HEARD: 28 JUNE 2012, 2 AUGUST 2012 AND 18 SEPTEMBER 2012

DELIVERED : 5 OCTOBER 2012

PUBLISHED : 12 OCTOBER 2012

FILE NO/S: GAA 1345 of 2012
GAA 1346 of 2012

BETWEEN :AL
Represented Person

Catchwords:

Guardianship and administration Applications for guardian and administrator for a woman with intellectual disability and diagnosed psychiatric condition evicted and property seized and sold History of hoarding behaviour Need for guardian to decide where to live and with whom to live Need for an administrator to manage proceeds of sale of property because of woman's intellectual disability and risk of potential relapse of psychiatric condition

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 41(1), s 43(1)(b), s 43(1)(c), s 51, s 64, s 115
State Administrative Tribunal Act 2004 (WA), s 35

Result:

Public Advocate appointed limited guardian
Public Trustee appointed limited administrator

Category: B

Representation:

Counsel:

Represented Person : Ms McCahon

Solicitors:

Represented Person : Legal Aid Commission of Western Australia

Case(s) referred to in decision(s):

FS [2007] WASAT 202
ML [2012]WASAT 184
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications were made to the Tribunal by a representative of Keystart Loans Limited for the appointment of a guardian and an administrator for a 63yearold woman following her eviction from a property that she was purchasing on a shared equity basis with Keystart. Some months prior to the applications, the woman and her adult daughter had been evicted from the property pursuant to a property seizure and delivery order. This order had been obtained by Keystart because, despite the woman being up-to-date with her mortgage payments, she was in breach of the loan agreement with Keystart due to her property being declared by the local shire to be unfit for human habitation under the Health Act 1911 (WA). The evidence before the Tribunal was that the woman had a diagnosis of intellectual disability and bipolar affective disorder.
When the applications were made to the Tribunal, the woman was homeless and was reported to be living in a park with her daughter, who also suffers a mental illness. The property from which they had been evicted was sold, and the woman's share of the proceeds of sale of approximately $140,000 was due to be paid to her. The applicant said, however, that she was 'mentally deficient' and could not make reasonable judgments about those funds.
The woman said she had not received notices of any of the legal proceedings. She had not been represented, nor had there been an application for the proceedings in the Supreme Court to be conducted by a guardian ad litem on her behalf. Notwithstanding this, the woman's legal representative in the proceeding before the Tribunal said that all the obligations for notice to her of the Supreme Court proceedings for recovery of the property had been complied with.
The Tribunal found that the woman had been unable, because of her intellectual disability and her mental illness, to address the issues raised in the Health Act notice or to respond effectively to the property seizure proceedings, because she did not understand either the significance of the proceedings or the notices she received.
The woman did not agree that she needed assistance; however, the Tribunal found that she was unable to make reasonable decisions about her person, and needed a guardian to decide where she was to live and to consent to services on her behalf. The background of hoarding behaviour in properties in which she had lived with her daughter increased the complexity of the situation facing her.
The Tribunal found that she needed an administrator to manage the funds received from the proceeds of sale of her home. This was not only due to her intellectual disability and her inability to manage complex problems, but also because of her diagnosed mental illness, which was a fluctuating one and which could deteriorate and put at risk the proceeds of sale which were her only asset.
As there was no one in the woman's life who could provide any assistance, either informally or formally, the Public Advocate and the Public Trustee were appointed guardian and administrator.

Application

The original applicant in this matter is the credit manager of Keystart Loans Limited (Keystart). The application filed on 19 April 2012 states 'we have taken possession of [the represented person's] house and she and her daughter are now homeless'.
The applicant states that the represented person needs an administrator because:
I believe she is mentally deficient and incapable of looking after herself and her daughter. When her home is eventually sold I estimate that [approximately $130,000 $140,000] will be available to her and I do not consider [that] she is capable of handling these funds.
The applicant indicates in the application that the represented person has an 'intellectual disability'. The applicant states 'I believe she and her daughter are incapable of making rational decisions'.
In respect of guardianship, the represented person is reported in the application to be 'homeless and living under the [location deleted] Bridge as reported in the [local press]'. The applicant says that '[s]he and her daughter need accommodation, medical treatment and care'.
The application is said to be urgent because the represented person and her daughter, Y, are 'homeless and living rough'. The application notes that the represented person is of 'no fixed address'. The space on the application form for nomination of medical professionals to provide evidence to the Tribunal is completed 'not available'.
Referral was made to the Public Advocate's office to attempt to ascertain the whereabouts of the represented person so that personal service of the notice of hearing of the applications could occur, as is required pursuant to s 41(1) and s 115 of the Guardianship and Administration Act 1990 (WA) (GA Act).
The Tribunal listed the application for directions on 29 May 2012, as the whereabouts of the proposed represented person were unknown and no medical evidence had been identified to support the making of the orders proposed in the applications.
The represented person attended the directions hearing on 29 May 2012 with her daughter and her legal representative. It is understood that the represented person was advised of the hearing by a welfare worker following information provided by the Public Advocate. The welfare service arranged for advice to be sought from Legal Aid. When the represented person attended the Tribunal's premises, she was served with the notice of the proceeding. The directions hearing was also attended by the applicant, welfare and mental health caseworkers, and a representative of the Public Advocate.
An adjournment was sought as there had been no time to take any instructions, other than that the represented person opposed the orders sought. The applications were adjourned for investigation by the Public Advocate as to whether the represented person is a person for whom orders could be made, whether she was in need of a guardian and an administrator, and the views and wishes of the proposed represented person.
The Tribunal endeavoured to identify sources of medical evidence regarding the represented person's capacity to make decisions regarding her person and her estate. Evidence of this nature is fundamental to the question of the Tribunal's jurisdiction to make the orders sought in the applications.
Records were also ordered to be produced, pursuant to s 35 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), from Keystart regarding the legal action in respect of the allegations of the breach of the loan agreement and action for seizure of the property, and from the local government authority regarding the Health Act notices.
Although the original applicant asserts that the Keystart documents were not relevant to the proceedings before the Tribunal, the Tribunal ordered that they be produced, both as essential background information to the applications before the Tribunal and as relevant to the question of capacity of the represented person. The issue of capacity arose in respect of this material because the original applicant said that all notice obligations had been complied with, but the represented person denied she had received any notices regarding the Health Act notice or the proceedings for seizure of her property.
Medical records were also sought from Mental Health Services and from Royal Perth Hospital.
The original applicant sought to withdraw at a hearing on 26 June 2012. He was highly critical of the Tribunal's process in the conduct of the proceedings, particularly the delay in bringing the application to hearing because of welfare concerns due to the represented person being homeless. He was advised that leave would not be granted to withdraw the applications.
With her consent, the Public Advocate was later substituted as the applicant. A further hearing was held on 2 August 2012 to clarify the availability of medical reports and to establish that the funds from the sale of the property were secured prior to the determination of the applications. The application was listed for final hearing on 18 September 2012. The represented person attended with her daughter and was legally represented at the final hearing. The Public Advocate's representative and representatives from Mental Health Services and the welfare service providing support services to the represented person also attended. The decision on the applications was reserved for delivery of brief oral reasons on 5 October 2012. The represented person had expressed, at the final hearing, that she would prefer the orders and reasons to be delivered orally rather than in writing.

Background

AL (represented person) is a 63-year-old widow who, until October 2011, lived with her daughter in a property she was purchasing through a shared equity scheme loan agreement whereby the represented person held an 83% interest in the property and Keystart held a 17% interest.
The property had originally been purchased under the loan agreement by the represented person and her husband in the late 1980s and the represented person had lived there continuously until her eviction. The represented person's husband died in 1997; however, the property was not transferred from his name on his death.
Keystart issued a default notice to the represented person through its solicitors on 22 May 2009 asserting the represented person was in breach of the loan agreement because she had failed to insure and maintain the property and it had been declared unfit for human habitation. The notice required the breaches be remedied by 25 June 2009. (The represented person maintains that she had insured the property and produced evidence of this to the Tribunal in the course of the proceeding.)
The material before the Tribunal shows that the Shire of Mundaring (Shire) had declared the represented person's property as unfit for human habitation pursuant to the Health Act 1911 (WA) (Health Act) on 29 April 2009. Notice of the declaration was given to both the represented person and to Keystart as the owners of the property. A copy of the letter to Keystart dated 29 April 2009 advises of rights of review to the Tribunal. Presumably, the letter to the represented person contained the same information. No action appears to have been taken in response to the declaration, either by Keystart or the represented person. It is reported in the material produced to the Tribunal from Keystart that the represented person and her daughter continued to live in the house in breach of the notice until it was secured, and even after that. They are reported to have either slept on mattresses in the yard or lived in a shed on the property, entering the house only at night. It seems that they were hiding from, and avoiding contact with, persons coming to the property, including those serving documents.
A letter dated 30 September 2010 to Keystart and the Manager of Health and Community Safety Services for the Shire sought assistance from Keystart in:
… either assisting the [represented person and her daughter] in an ongoing program to ensure that the dwelling is maintained in a clean state or that the [names deleted] are prevented from accessing the dwelling and the dwelling is subsequently cleaned and repaired.
Reference is made to possible legal action against the represented person for her continued occupation of the property in breach of the Health Act notice and the potential for a court imposed fine. Although, at the time of the letter, legal action was considered 'unrealistic' to prevent the represented person and her daughter living in the property, it appears that sometime later, the represented person may have been prosecuted for the breaches. Her daughter said in the final hearing that the represented person had been summonsed to appear in the Midland Court, but had not attended. The represented person states that she does not recall this.
The proceedings for the repossession of the property were commenced in the Supreme Court by Keystart in October 2010, and culminated in a property seizure and delivery order made on 5 September 2011. It appears from the material before the Tribunal that no application was made for the appointment of a guardian ad litem in the Supreme Court proceeding, despite the view of the original applicant that the represented person had an intellectual disability.
The property seizure and delivery order authorised the eviction of the represented person from the property. The eviction was effected in early October 2011. The property was then sold by Keystart, with settlement due in August 2012. The funds are held in the trust account of Keystart's solicitors until the Tribunal determines the applications.
Although the represented person denies receiving any documents from the Shire or from Keystart or its solicitors regarding these matters, she concedes that there was some correspondence from the Shire about the state of the house, but she said in the hearing that this had 'passed'. By this statement, it is understood that she did not appreciate that the notice and her breach of it continued. Counsel for the represented person states that, having reviewed the material provided by Keystart, the process for recovery of the property appeared to be regular and that all notice requirements were complied with. Substituted service of the writ (by fixing to the front door) and of notice of the chambers summons for entry of default judgment (by registered post) were ordered by the Supreme Court. Although the represented person agrees she was living at the property in the period, she says she did not go to the letterbox and denies she received any letters over the period.
The records before the Tribunal from Royal Perth Hospital show that, in August 2009, in the months that followed the Health Act notice in April 2009 and the default notice from Keystart in May 2009, the represented person suffered a relapse of her diagnosed bipolar disorder and was admitted to Royal Perth Hospital. On discharge, she was referred for follow up by Swan Clinic.
The report of the clean up of the property following the eviction of the represented person indicates that the property had deteriorated to the point where it would have been an obvious risk to the health and safety of the represented person and her daughter.
Following the eviction, after a period of homelessness and a period in emergency accommodation about which, it is said, Health Act declarations were also initiated, the represented person was hospitalised, initially at Sir Charles Gairdner Hospital and then later in Royal Perth Hospital, for pneumonia. The represented person's daughter was admitted to Graylands Hospital.
At the time of the final hearing, the represented person was living in supported accommodation as a temporary measure. Her daughter had been discharged from Graylands Hospital to temporary accommodation at another location. The represented person expresses the wish to return to live with her daughter independently.

Material and evidence before the Tribunal

The material before the Tribunal includes:
•the original application;
•documents produced to the Tribunal from Keystart;
•correspondence and reports from doctors, social workers and mental health case managers; and
•submissions from the Public Advocate.
The medical evidence includes a report from Dr M, psychiatrist, dated 17 July 2012, which reports that the represented person has a diagnosis of 'manic depressive illness' and 'appears to have limited intellect'. Her condition is described as a fluctuating one. Dr M states that he is 'not sure' whether the represented person can make reasonable judgments about her personal health care, her living situation or her financial affairs. He notes that the represented person 'recently became ill with a serious pneumonia possibly related to recent homelessness'. In respect of capacity to make reasonable judgments about her living situation, Dr M states that a 'recent history of homelessness indicates an impaired judgment in this area'. In relation to financial affairs, he reports the represented person 'can manage her affairs except when manic and when influenced by her daughter (whom she is dominated by and of whom she is afraid)'. He goes on to say that the represented person 'is a vulnerable lady [whose] recent eviction has been contributed to by an enmeshed relationship with her daughter and an inability to care for herself'.
Dr S, general practitioner, in a report dated 11 June 2012, states that he has known the represented person for 10 years. He states that she has a diagnosis of 'bipolar disorder and schizoaffective disorder' and states that he is 'not sure' of her capacity to make reasonable decisions about personal or financial affairs.
In a letter dated 18 June 2012 from Dr D, psychiatrist, the following is reported:
[The represented person] was a patient of Swan Community Mental Health Service from 2009 until she was discharged in 2012. Prior to discharge she was last seen in January 2012 and lost to follow up. At that time they were living in [deleted] but lost their accommodation. In spite of our efforts to locate them we have been quite unsuccessful and neither have we heard from [the represented person].
The letter concludes:
When I last saw her she was on medications for her medical problems as well as Bipolar Affective Disorder Type 1.
A Royal Perth Hospital discharge summary for hospitalisation of the represented person from 5 August 2009 to 1 September 2009 is before the Tribunal. The summary records an admission through the 'ED' (Emergency Department), escorted by PET (Psychiatric Emergency Team). The notes refer to:
… [three] weeks of elevated … mood … loud rapid speech (to the point of disturbing her neighbours) … increased spending to a total of over [$7,000].
The report notes:
The only apparent stressor associated with this relapse was the recent hospitalisation of [the represented person's] sister who suffers chronic paranoid schizophrenia.
The report notes a background of 'a long period of stability with the last admission to Graylands in 1997'. The diagnosed conditions include:
•Bipolar Affective Disorder Type 1
•Diabetes Mellitis
•Hypertension.
Later in the report, it is recorded:
Fair insight, aware that she is manic. Judgment impaired.
RISK ASSESSMENT:
high risk of further damage to finances.
Special points of concern:
Risk to finances when unwell prior to admission [the represented person] spent all of her savings and accrued debts to various family members also to a total of [approximately $7,000]. As such[,] she has the potential to do great damage to her finances if she were to relapse again in the future.

The report notes the 'need to stay on Lithium or a similar agent and remain stable for at least 5 years before considering stopping this agent' and that follow up after discharge on 1 September 2009 is to Swan Valley Community Mental Health Service and the general practitioner.
Reports were received from Sir Charles Gairdner Hospital dated 14 June 2012 and 15 June 2012 from a psychiatric registrar and social worker following an admission of the represented person to that hospital for an 'acute stress reaction' following being 'evicted from a bush camp'. The report of the psychiatric registrar is that no cognitive impairment is noted, and she concludes that the represented person is 'probably capable'. The social worker reports that, in his limited contact, she is articulate and knows what she wants, but makes 'lifestyle choices' (of keeping numerous animals). A case manager's report from the mental health team dated 24 July 2012 states:
[the represented person] also has limited intellect though has managed her finances reasonably well. Her daughter causes issues by purchasing animals that they [cannot] care for. …
Her judgment is impaired at present [and] high level of influence by [daughter]. …
Prior to the final hearing, the represented person was admitted to Royal Perth Hospital with pneumonia. She was hospitalised for some three weeks, during which time she was treated in intensive care. She was later assessed by a neuropsychologist, Ms RZ, as to her capacity. The report of Ms RZ dated 18 September 2012, addressed to a consultant psychiatrist at Royal Perth Hospital, is before the Tribunal.
The report notes the history of the represented person with incomplete schooling, the recent eviction of the represented person from her own home 'due to squalor and hoarding' and the loss of emergency accommodation obtained following the eviction due to the 'unhygienic and unsafe condition of the property'. The report notes:
Psychiatrically, she has a diagnosis of bipolar affective disorder, with depressive episodes at ages 10 and 18 and manic episodes at ages 48 (1997) and 60 (2009). Additional diagnoses of hoarding, schizoaffective disorder and probably panic attacks have been made. There is a strong family history of Schizophrenia (twin sister, daughter, mother and brother). Additionally her father has a diagnosis of probable bipolar disorder. Her twin sister is also said to have a probable intellectual disability.
The report refers to the neuropsychological assessment and testing for intellectual functioning undertaken and the represented person's cooperation with that process. The findings are reported as consistent with:
… a mild intellectual disability in respect of attention, working memory and speed of processing.
The report notes:
… both her attention span and working memory (the ability to hold in mind and manipulate several items of information at once) were very weak (extremely low range).
In respect of her memory, the report notes:
… consistent with her performances on other tests, [the represented person] scored poorly within this domain. She demonstrated a reduced capacity to learn and, by default, her delayed recall is weak compared to age matched peers...
In respect of executive functions, which include a number of high level cognitive abilities that help guide and control behaviour, such as planning, mental flexibility, inhibition of inappropriate responses and generation of novel responses and ideas. There is evidence of generalised executive dysfunction, with her producing extremely low scores on tasks of switching, inhibition and generativity.
In respect of decisionmaking capacity, the report states that the represented person's:
… cognitive profile, especially her low level of intellect, poor memory and generalised executive dysfunction, raises significant concerns regarding her decisionmaking abilities. The nature and extent of her cognitive impairment is such that she is considered to lack the cognitive capacity to make informed or reasoned decisions on matters of any real complexity.
The report concludes
In summary[,] the results show generalised cognitive impairment and are considered most consistent with longstanding intellectual disability. Specifically[,] there is evidence of significant attentional, working memory and processing speed deficits. Her language skills are poor and her visuospatial processing is grossly abnormal. Her memory performance is very weak though don't show any rapid forgetting and are considered commensurate with her general level of intellect. There is generalised executive dysfunction.
…
Her general intellectual, executive and memory deficits raise significant concerns regarding her decision[]making capacity in all domains. This will be further impacted on by any psychiatric illness. Her documented functional difficulties in the community are felt to reflect her underlying impairment of her decision[]making capacity. Appointment of substitute decision[]makers in both financial and lifestyle domains is recommended.

Relevant legislation

To appoint a guardian, the Tribunal must be satisfied that the represented person is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person, or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others, and is in need of a guardian: (s 43(1)(b) and s 43(1)(c) of the GA Act).
To appoint an administrator, the Tribunal must be satisfied that the represented person is unable, by reason of a mental disability, of making reasonable judgments about any or all of her estate and is in need of an administrator of her estate: (s 64 of the GA Act).
These provisions are subject to principles in the legislation, set out in s 4 of the GA Act, which provides that the primary concern of the Tribunal in dealing with matters under the GA Act must be the best interests of the represented person. There is a presumption that people can make their own decisions about their person and about their financial and legal affairs unless there is evidence to the contrary. The principles also state that orders should only be made if there are no less restrictive ways of meeting the represented person's needs, and that any orders that are made should be made in the least restrictive terms possible.
In dealing with any matter under the GA Act, the Tribunal must ascertain the wishes of the represented person.

Issues to be determined

The issues which arise in this case are:
1)Is the represented person a person for whom an administration order can be made?
a)Does she have a mental disability?
b)Is she unable, by reason of that disability, of making reasonable judgments about her estate?
2)Is she a person for whom a guardian can be appointed?
a)Is she unable to look after her own health and safety?
b)Is she unable to make reasonable judgments about her person?
c)Is she in need of oversight and care in the interest of her own health and safety?
3)Is she in need of orders or are there less restrictive means by which her needs can be met?
4)What should be the scope of any order made?

Is the represented person a person for whom administration and guardianship orders can be made?

Counsel for the represented person does not challenge the report of Ms RZ, the neuropsychologist, and her finding that the represented person has an intellectual disability, and the represented person accepts she has a diagnosis of bipolar disorder. The description of hoarding behaviour at the properties of the represented person is also accepted in the submissions made on her behalf. Although the final report of Ms RZ was received immediately before the hearing, no adjournment was sought, when offered, to consider the report further.
When asked at the final hearing, counsel made no request for crossexamination of any of the providers of reports which are before the Tribunal.
Counsel submits that, based on the history of difficulty with her housing associated with hoarding behaviour, the represented person accepts that she is in need of a guardian to assist with accommodation and services. However, the represented person said later in the hearing that she does not agree with the assessment by Ms RZ, as it was conducted while she was in hospital and recovering from pneumonia, and that she does not believe she needs someone else to decide where she should live or to manage her money.
Although the diagnosis of bipolar disorder is accepted, counsel argues that there have only been two hospitalisations of the represented person for exacerbation of that condition; at Graylands Hospital in 1997 and at Royal Perth Hospital in 2009. It is submitted that the represented person has maintained her medications, even throughout periods of homelessness, and that her psychiatric condition is controlled. It is asserted that there is no evidence that the represented person cannot manage her own money. That is, even though it is accepted that the represented person has a mental disability, it is submitted that she is not, by reason of that mental disability, unable to make reasonable judgments about her estate and therefore is not a person for whom an administration order may be made. It is submitted that prior to the eviction from the property, she had always maintained her mortgage payments, and the allegation which formed part of alleged breach of her loan agreement that she failed to insure the property is incorrect. The represented person produced to the Tribunal evidence of a refund of insurance premiums paid following her eviction.
It is argued that the represented person has no significant debts and is paying for her current accommodation by direct debit, and that she pays for health insurance. The represented person has also placed funds of $2,100 in her daughter's account to protect those funds, as she fears orders will be made in favour of the Public Trustee.
In FS [2007] WASAT 202, the Tribunal found that there needs to be a causative link between the person's 'mental disability' and their inability to make 'reasonable judgments'. This case was cited with approval in The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 at [45]:
The application of s 64 of the GA Act involves both subjective and objective tests. 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.'
The report of Dr C from Sir Charles Gairdner Hospital, which states that the represented person is 'probably capable', does not reveal any assessment undertaken to support that opinion.
The other psychiatric evidence (of Dr M and Dr D) and that of the general practitioner is consistent that the represented person has a diagnosed psychiatric condition of bipolar affective disorder. Ms RZ states, following her assessment with which the represented person cooperated, that the represented person has a mild intellectual disability. Despite the represented person's submission that the assessment occurred when she was recovering from illness, the Tribunal accepts the assessment of Ms RZ. The findings are consistent with Dr M's opinion that the represented person is of 'low intellect' and that her judgment is impaired. These opinions accord with the original applicant's view and other evidence before the Tribunal about the represented person's functioning in the face of the processes which led to her eventual eviction. Based on the material, the Tribunal finds that the represented person does have a mental disability, as defined in s 3 of the GA Act, being a psychiatric condition and an intellectual disability.

Is the represented person unable, by reason of that disability, of making reasonable judgments about her estate?

Ms RZ reports that the mild intellectual disability experienced by the represented person means she lacks capacity to make informed or reasoned decisions 'on matters of any real complexity'.
Having accepted the assessment of Ms RZ and Dr M's opinion, the question is whether the represented person's existing estate involves matters of any real complexity. To consider that question, it is revealing to consider the history of the matter which brought the applications to the Tribunal.
Critically, despite her evidence, it is more likely than not that the represented person received at least some of the letters and formal notices from both the Shire and Keystart regarding the property. Counsel for the represented person states that all notice obligations in respect of the repossession of the property were complied with. When questioned about the notices from the Shire, the represented person acknowledges that there had been some problem with the Shire about the state of the property, but that this had 'passed'. She says that she continued to live at the property despite the Health Act notice, but says she did not go to the letter box to collect mail. On the face of it, the represented person appears not to have responded in any way to the Health Act notice or the action by Keystart to recover the property. That she did nothing in response over the lengthy period of these processes illustrates, in the Tribunal's view, the functional difficulties she experiences, which are referred to in the report of Ms RZ. The represented person did not seek help from any services, attempt to get legal advice, or contact the solicitors acting for Keystart or Keystart directly. The represented person either cannot now remember any correspondence received, or simply did not understand the significance and the implications of the information contained in letters and notices. She was unable to address the issues raised or apparently take any steps to seek help, with the eventual outcome being the seizure and sale of her home and significant financial loss to her estate.
The Tribunal is satisfied that the failure of the represented person to appreciate or respond to the processes which led to the seizure of the property is due to her intellectual disability. Alternatively, or in addition to the intellectual disability, it is likely that her diagnosed mental illness played some part in the hoarding behaviour which led to the Health Act notices and her inability to address the issues raised in notices, which ultimately led to her eviction.
It should be noted that following her hospitalisation in from Royal Perth Hospital in 2009, she was discharged for follow up to a mental health clinic. The case manager from the Street to Home Service currently working with the represented person reports that the clinic was aware of the Health Act notices. The represented person was a patient of the clinic, as evidenced by the letter of the psychiatrist, Dr D, during the period that she was subject to the Health Act notice, the property seizure proceedings and the eventual eviction. However, she reportedly did not seek assistance from the clinic or any other service provider. The Tribunal considers this significant to the question of the represented person's capacity to make reasonable judgments about her estate. Nevertheless, this case also shows a failure of an appropriate response to the issues by both the clinic charged with caring for the represented person's mental health and Keystart. The Tribunal does not in any way minimise the challenges faced in relation to the property; that much is clear from the report of the clean up of the property following the eviction. However, given that the original applicant recognised that the represented person had an intellectual disability and an inability to make reasonable judgments, this suggests that a different response was required from Keystart to the request made in 2010 by the Shire for intervention in the situation, other than to proceed with the application for the recovery of the property with the obvious outcome that the represented person would be made homeless. Indeed, if the Supreme Court application proceeded at all, consideration should have been given to the need that it be conducted with the represented person having had a guardian ad litem appointed to respond to the application, given that the representative of Keystart recognised that the represented person was 'mentally deficient'. However, no such application was made to the court.
The report of Ms RZ refers to disabilities experienced by other members of the represented person's family, and it is likely that she had no one to turn to within her family when faced with these proceedings.
The position of the represented person can be contrasted with that of another case before the Tribunal: see ML [2012]WASAT 184, which has similar facts and involved a client of a mental heath clinic who had been served with Health Act notices by the local government authority in relation to a property she owned. In that case, following the declaration under the Health Act, the client was involuntarily admitted to hospital under the Mental Health Act 1996 (WA) (MH Act) for her safety and to ensure that she did not breach the notice. She was assisted by a social worker from the clinic to seek review of the Health Act declaration in the Tribunal. Applications were also made for the appointment of a guardian and administrator under the GA Act, which she opposed, to represent her interests and address the matters in the notice. The Public Advocate, as appointed guardian, consented to temporary accommodation on her discharge from hospital, while the Public Trustee, as administrator, arranged for representation at the Tribunal on the Health Act review application and in mediations conducted with the local government authority. The Public Trustee, also as administrator, arranged for the assessment, clean up and repair of the property.
The outcome for the represented person in this matter has been markedly different; as her house has been sold, her estate has been significantly diminished, she is in temporary accommodation which does not meet her needs, and she faces an uncertain future in obtaining future accommodation.
An effective approach to working with persons experiencing hoarding and squalor issues is reported to have been developed by Catholic Community Services in New South Wales in 2008 to assist housing providers, local government, and health and welfare services to address these issues in practical ways, and to prevent homelessness amongst this vulnerable group.
Despite the expressed wishes of the represented person that orders not be made, the Tribunal finds that she is a person for whom orders may be made, that orders are needed, and that there are no less restrictive means by which her needs may be met.
At the final hearing, the case worker from the welfare service reports that debt negotiation had been undertaken on behalf of the represented person and her current outstanding debts include:
•$2,600 to Telstra for two accounts (one of which was in the hands of debt collectors);
•$443.85 owing to Avon;
•$400 owing to the [name deleted] hotel; and
•an unknown amount owed to St John Ambulance.
The represented person accepts all but the debt to St John Ambulance.

Money is also said to be owed to the emergency housing provider for 14 weeks of unpaid rent and property damage. The original amount was reported to be in the order of $11,000 but, following insurance claims for some of the property damage, was reduced to around $3,000, of which nearly all was the unpaid rent. In the course of the hearing, the possibility that there were unpaid fines for prosecution for breaches of the Health Act notices was raised as a further potential liability.
The evidence regarding the nonpayment of the rent for the emergency accommodation is in conflict. On the one hand, it is reported by the Public Advocate that the housing provider allowed access to the property to the represented person and her daughter on an emergency basis, but when attempts were made to collect rent and to have a direct debit agreement signed for payment of rent, the represented person was not available to sign and then the locks were changed. The represented person and her daughter say that they expected the rent would be collected from them. They deny that the locks were changed by them as asserted by the housing provider, saying only that they had problems with the locks. What is uncontested is that rent was not paid for 14 weeks. Further, in the Public Advocate's report of 26 June 2012, it is said that the represented person and her daughter were evicted from the emergency accommodation following complaints about the state of the property and the numerous animals that had been brought to live at the property without permission. The Public Advocate's report also refers to the represented person and her daughter being evicted from the hotel where they stayed because 'her daughter brought animals into the hotel'. This report is not challenged by counsel for the represented person.
Although the represented person has debts, one of which is in the hands of debt collectors, it is likely that most of these debts can be satisfied from the proceeds of sale of the property. It is unknown whether there are any fines owed by the represented person arising from any prosecution of breaches of the Health Act. The crucial question is whether the represented person's estate now involves decisionmaking of such complexity that an administrator should be appointed. Because of the history of hoarding behaviour, the need for the appointment of an administrator and a guardian are interrelated. The inability of the represented person to appreciate and respond to the Health Act notices and property seizure proceedings and a background of domestic squalor, both at her own home and later at emergency accommodation occupied by the represented person and her daughter, indicates an inability to make reasonable judgments about her estate and about her person in the past. This, together with the failure to pay rent at the emergency accommodation which was not a matter of any complexity but which again led to her eviction and homelessness, leads the Tribunal to the conclusion that she continues to demonstrate significantly impaired decisionmaking. Since her eviction, the represented person has continued to experience difficulty in maintaining accommodation until recently, when she moved to a hostel. The Tribunal finds that, as a consequence of the loss of her home and subsequent homelessness, the represented person faces complex, perhaps overwhelming, difficulties in reestablishing a home for herself and her daughter.
The represented person proposes that, on receipt of the proceeds of sale from the property seized, she will borrow $200,000 from the Commonwealth Bank and, together with the balance of her funds of about $140,000, will purchase a property for herself and her daughter. She reports that the bank will loan her $200,000 if her daughter lives with her. This proposal presents significant risks to her estate, including entering into a loan which she could not service.
Given the evidence regarding her impairments and the process required to locate and to purchase a property, even if it was financially feasible, it is likely to be beyond her. She would be vulnerable to exploitation in any negotiation to obtain a property.
The inability of the represented person to make reasonable judgments about her estate is against a background of a diagnosed mental illness of bipolar affective disorder, which is a fluctuating condition, although it is argued that the represented person has been stable and on medication since 2009. This condition led to a manic episode in her illness in the past, and is reported to have caused the represented person to spend accrued savings and run up debts of around $7,000. The Royal Perth Hospital records from that hospitalisation indicate that the represented person may be at risk of relapse in the future, and may be at risk of financial harm should that relapse occur. This is so, despite the long period of stability she reports since her last admission in 2009, because of the fluctuating nature of that condition.
The Tribunal does accept that the represented person has managed some of her financial affairs, including the payment of her mortgage (reported in Ms RZ's report as $167 per fortnight), and the payment of her psychiatric hostel fees by direct debit arrangement on her pension.
Although the Tribunal accepts that the represented person has been upto-date with her mortgage payments and had insured her property, there is evidence that the represented person has incurred debts, both while living at her home and after her eviction, and that she needs assistance with debt negotiation to prevent legal action being taken against her.
The Tribunal finds that she is, by reason of her mental disability, unable to make reasonable judgments about her estate, and is in need of an administrator of her estate for the protection of the remaining asset of any significance, being the proceeds of sale of the property.

Scope of the administration order

In relation to the administration of her estate, the Tribunal determines that the needs of the represented person for financial management and protection of her estate can be met by a limited order which excludes her pension and personal bank account from management by the administrator.
As suggested by Ms RZ in her report, a direct debit or Centrepay arrangement could provide a less restrictive alternative to support the represented person in the management of her day-to-day financial affairs, such as payment for accommodation or utilities. However, the funds produced from the proceeds of sale of her home is the only significant asset of the represented person, and could be put at risk because of her vulnerability to impaired decisionmaking and the risk of exploitation, which arises from her intellectual disability and the risk of potential overspending should she have a relapse of her bipolar affective disorder.

Is the represented person unable to make reasonable judgments about her person or in need of oversight and care in the interests of her own health and safety

Although counsel states that the represented person is willing to have a guardian appointed in relation to accommodation and services, the represented person does not accept that she needs a guardian to decide where and with whom she should live. It is reported that the views of the represented person have been variable about this, but she confirmed this was her position at the final hearing. As noted, she proposes to buy a house and live independently with her daughter.
In some of the reports before the Tribunal (Dr M, Ms RZ, case managers Ms H and Mr O and in the Public Advocate's report) there are references to the relationship between the represented person and her daughter. The represented person is described as dominated or influenced by her daughter, and the relationship is described as 'enmeshed'. The evidence at the hearing on 26 June 2012 of Ms H, the case worker from Mental Health Services, is that the represented person's tenancy at the temporary accommodation prior to her admission to Royal Perth Hospital was 'undermined' by her daughter, and she had been given a warning that she could be evicted (T:18, 26.6.2012). In her report, Ms RZ refers to the potential impact her daughter might have on the represented person, as it was suggested that the allegations in relation to the Health Act notices related to animals the daughter owned.
In the hearings, the Tribunal was unable to clarify whether, in fact, the represented person considers her daughter responsible for the Health Act notices at both addresses and for the problems at the emergency and temporary accommodation they have used. Her daughter had, in an earlier hearing, contended that she, in fact, helped her mother in relation to the care of the property until she became too unwell with her own mental illness; this is supported by a comment made by the represented person as recorded in the Public Advocate's report. Whatever the position, although it is acknowledged by counsel for the represented person that the represented person had difficulties managing her property, and the description of hoarding is accepted, the consequences of that history do not appear to be appreciated in the represented person's proposal for future housing.
The Tribunal does find that the represented person is unable to make reasonable judgments in respect of her person and that she is in need of oversight and care in the interest of her own health and safety. The represented person's health was likely to have been affected by the squalid conditions in which she was living, but she was unable to take any steps necessary to address those issues, even, it seems, to ask for assistance from mental health services or welfare services. Her health did deteriorate following a period of homelessness, and the Tribunal accepts the opinion of Dr M that her hospitalisation for pneumonia was likely to be associated with the period of homelessness. The represented person is now a woman in her sixties with a range of significant health problems, and she would be highly vulnerable if she was again made homeless. The critical need of the represented person is to establish a home for herself, but that is a complex problem, given that she has insufficient funds to purchase a home, that she is probably ineligible for public housing because of the funds held, and that there are limited housing options which might meet her needs. She wishes to live independently with her daughter, but they have a history of problems maintaining accommodation related to hoarding and squalor caused, at least in part, by animals kept at the properties. The represented person does not see her present accommodation as a longterm option, and the mental health caseworker reports that the conditions there are 'awful' and that it is not 'home like'.
The represented person is reported to be influenced, to her detriment, by her daughter, but this relationship is clearly one of significance to the represented person.
There is a need for a guardian to decide where and with whom the represented person is to live, having fully explored with her and with the Public Trustee, as administrator, and the relevant services providers, her housing options. This decision should be made bearing in mind the obligations set out in s 51 of the GA Act, that the guardian acts in the best interests of the represented person if they advocate for the represented person to live in the general community and make the decisions to the extent possible that are consistent with the wishes of the represented person, and to take account of supportive family relationships.
In relation to medical treatment matters, the Tribunal does not accept that the represented person needs a guardian to make treatment decisions. The Tribunal accepts counsel's submission that the represented person may not have appreciated the seriousness of her condition prior to her admission to Royal Perth Hospital for pneumonia, but it does not follow that she is not able to make reasonable judgments about seeking medical treatment. The Tribunal accepts the evidence that the represented person manages the monitoring of her diabetes herself and has maintained her medications. With support services such as described by the mental health case worker at the final hearing, any problems the represented person may experience in the future in seeking appropriate health care might be met less restrictively than appointing a guardian for this purpose.
In relation to psychiatric care, the picture is different; the admission to Royal Perth Hospital in 2009 was not a selfpresentation by the represented person appropriately seeking help, as submitted, but rather, a referral from the Psychiatric Emergency Team, which was apparently precipitated by the represented person's disturbed behaviour. Since 2009, after her discharge from Royal Perth Hospital and referral to Swan Clinic until her eviction, there appears to have been a breakdown in the delivery of services to the represented person by mental health services, and she received her medications from her general practitioner. It is conceded that the represented person does need a guardian to engage services on her behalf. The Tribunal considers that services provided by mental health services could be included in the services accepted by a guardian on her behalf. Failing that, should her mental health deteriorate, involuntary treatment could be provided under the MH Act if this is assessed as warranted.

Scope of the guardianship order

The needs of the represented person can be met by orders appointing a limited guardian with the functions to decide where and with whom she is to live, and to consent to services on her behalf.
The Public Advocate is appointed, there being no one else proposed for appointment. The only family member who has attended the hearings before the Tribunal is the represented person's daughter who, herself, has a diagnosed psychiatric condition. As noted, the material before the Tribunal indicates that the represented person has family members, but no one who is in a position to assist her or provide any informal support.

Orders

Administration

1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed limited administrator with all the powers and duties of a plenary administrator save for the collection of the represented person's Centrelink pension and the management of her personal bank account.
2.This order is to be reviewed by 24 September 2013.

Guardianship

1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia 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; and
(b)to decide with whom the represented person is to live.

2.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.
3.This order is to be reviewed by 24 September 2013.

I certify that this and the preceding [90] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER