As and AA - [2007] WASAT 54

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AS and AA [2007] WASAT 54

MEMBER: MR J MANSVELD (MEMBER)
MS D DEAN (MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)

HEARD: 28 SEPTEMBER 2006

DELIVERED : 23 FEBRUARY 2007

FILE NO/S: GAA 1284 of 2006
GAA 1285 of 2006

BETWEEN: AS
Applicant
AND
AA
Proposed Represented Person

Catchwords:

Guardianship and administration Need for a guardian - Less restrictive alternative - Plenary guardianship - Functions of a guardian - Guardian and the represented person in a parentchild relationship - Plenary guardian to intervene in a generalised sense in the affairs of a person - Guardianship removes decisionmaking rights from a represented person - Need for an administrator

Legislation:

Criminal Law (Mentally Impaired Defendants) Act 1996 (WA)
Family Court Act 1997 (WA)
Guardianship and Administration Act 1990 (WA), s 4(2)(a), s 4(2)(b), s 4(2)(c), s 4(2)(d), s 4(2)(f), s 43(1), s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44(5), s 45, s 45(1), s 64(1)(a), s 64(1)(b), s 64(1)(c)
Mental Health Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 78

Result:

A guardian and administrator are appointed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Proposed Represented Person : N/A

Solicitors:

Applicant: Self-represented
Proposed Represented Person : N/A

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

LGW [2004] WAGAB 4
NCK [2004] WAGAB 6

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications for guardianship and administration were made for a 30 year old woman by a mental health service.
The woman had been diagnosed with an intellectual disability and a mental illness. She was assessed as having very few problem solving abilities, lacked insight into the consequences of her decision-making and manifested severe oppositional behaviour in her daily life. The applicant was of the view that the woman was unable to meet her daily living needs and was currently living in inappropriate accommodation.
The woman's parents supported their daughter as best they could but were at the limits of their skills and emotional resources. The strain was affecting their health and relationship.
The woman was reported to be at risk of abuse and exploitation.
The Tribunal appointed the Public Advocate as the woman's plenary guardian. The Public Advocate did not support the appointment, submitting that the woman's father was the person who could get her to do things better than anyone else and there did not need to be a guardian appointed for him to continue to do the best he could in that role. In addition any appointed guardian would face the same difficulties as was currently the case, namely that the availability of services for the woman appeared to be very limited and she was so oppositional that it was questionable whether a guardian could enforce any decisions made.
The Tribunal disagreed. The woman's needs were significant and it was beyond the capacity of her parents to deal with all her issues. The provisions of the Guardianship and Administration Act 1990 (WA) referred to the role of a guardian in the context of a parent-child relationship and in doing so placed a wide range of responsibilities and obligations upon a plenary guardian. It was not sufficient to argue against the appointment of a guardian on the basis that the guardianship appointment would be a very difficult one.
The Tribunal was mindful that a plenary order in its ultimate effect removed the personal decision-making rights of the woman and that such a determination should not be made lightly. For that reason the order appointing the Public Advocate was set to be reviewed by the Tribunal in 12 months so that a determination could be made in a timely manner as to the extent of the ongoing need for guardianship.
The woman's father was appointed her plenary administrator. Despite the concerns about the extent to which the parents could continue to assist the woman within the limits of their physical and emotional resources, it was decided that such an appointment would be complementary to the appointment of the Public Advocate as guardian, in that it could provide flexibility in financial decision-making for the woman in the circumstances of her oppositional behaviour and chaotic living situation. The administration order was also made for 12 months.

Background

These reasons relate to applications for guardianship and administration in respect of AA, a 30 year old woman (the represented person). The applications had been made by AS, a social worker with a metropolitan mental health service.
The relevant legislation is the Guardianship and Administration Act 1990 (WA) (the GA Act).
The applications were heard on 28 September 2006. Orders were made appointing the Public Advocate as the represented person's plenary guardian and RA, the represented person's father, as her plenary administrator.
On 20 October 2006, the Tribunal received a request from the Public Advocate for written reasons for the decision to appoint her as the represented person's plenary guardian.
These reasons are provided pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA).

The hearing

The hearing was attended by RA, father of the represented person, JA, her mother, NS, the applicant and KD representing the Public Advocate.
The represented person did not attend the hearing. She had been served with the notice of hearing pursuant to the relevant provisions of the GA Act. The applicant states that the represented person refused to attend the hearing and this was confirmed by her parents. It was put to the Tribunal that she would refuse to attend any hearing and that her behaviour is severely oppositional.
The Tribunal decided to continue with the hearing in the represented person's absence.

The application for guardianship and submissions

The applicant states that the represented person has an intellectual handicap and has also been diagnosed with a psychotic disorder. At the time of the application (June 2006) the represented person was living in short‑stay supported accommodation. By the time of the hearing she was living in a caravan with the father of one of her children. She has two children one of whom is cared for by her parents; the other is with the biological father.
The represented person is under a Community Treatment Order pursuant to the Mental Health Act 1996 (WA) (MH Act) to ensure she takes her antipsychotic medication. The applicant says this is not likely to be an ongoing response by mental health authorities to the represented person's behavioural issues. The parents question exactly why it is the represented person is being prescribed such medication although JA (mother) states that it seems to have some positive affect on her outlook.
The applicant and the parents submit that the represented person's present accommodation is not appropriate for her. JA says that the represented person's current relationship is violent and that the man with whom she lives is a drug addict. At the time she was discharged from hospital there was no place else for her to go. The represented person is reported to have said she did not want to return to the caravan but felt she had no choice.
The applicant states that the represented person had earlier in the year been evicted from supported accommodation because she urinated over the couch in the residents' lounge; she would not comply with the house rules. Every time the represented person was admitted to hospital the applicant says she would discuss the need for appropriate and safe accommodation with her, however, the represented person refused to attend appointments, read brochures or attend interviews with prospective accommodation providers including the Richmond Fellowship. The applicant is of the view that the represented person living independently is "…totally out of the question" (T:33). She has attempted to obtain support for the represented person from the Disability Services Commission without success.
The parents say that at one time they purchased the represented person a house for her to live, however her boyfriend "trashed" the house and the accommodation could not be sustained.
The parents have provided the represented person with accommodation when there is no alternative but the typical situation is that she causes significant disturbance and will not leave. In one recent instance, the police needed to be called to remove the represented person from her parents' home. During this process the represented person assaulted a police officer and the applicant states that criminal charges are pending.
The issue of what to do with the represented person when she presents at her parents' home has caused difficulties in the parents' relationship. JA (mother) says she cannot have the represented person home any more and after the incident with the police says "I was going to commit suicide" (T:43). Despite this, the parents say that they cannot allow their daughter to be homeless.
In her social work report in support of the application, the applicant states that the represented person, who was then living in supported accommodation:
"…does not comply with her medication, her activities of daily living are severely compromised. [The represented person] remains incontinent and refuses to wear a pad or clean up after herself when she wets the bed or her clothing. [The represented person] hides the soiled linen and clothing denying she has a problem. [The represented person] has also poor hygiene often smelling of urine and has to be prompted to shower and put on clean clothing."
At the hearing the applicant put her concerns in this way:
"Well, I think the issues that I've mentioned previously, [the represented person's] inability to make rational, clear decisions. Her vulnerability is of great concern, and that she is at risk because she is not able to see things in clarity and the ramifications of [her] behaviour. And my concern for her too is that without someone helping [the represented person] make decisions or making decisions on her behalf if it's necessary, to make sure that she is safe and that she has a safe, secure place to live, and decisions regarding both her physical and mental health can be made in conjunction so that [the represented person] doesn't have the capacity to do these things. And from me, both her financial and her activities of daily living, for want of a better way to describe it, [the represented person] does not have the insight to be - - she can't categorise things. Like putting clean clothes on or taking care of her personal hygiene, or having proper meals. That was one of the problems at the hospital, [the represented person] would not sit down and have a meal. She'd come back an hour later and eat with her hands." (T:24:25)
The applicant also states as a grave concern the risk that the represented person will fall pregnant again; "…she never thinks, she refuses to take birth control" (T:25). As earlier mentioned, the represented person has two children neither of whom is in her care and who had previously come to the attention of the Department for Community Development. The applicant reports that JA is considering applying for formal care and control of the child who currently lives with her and RA.
The applicant proposes the appointment of an independent guardian and to remove that responsibility from her parents:
"[The represented person] [is] dearly loved by both of her parents but it has caused a great deal of difficulty between [them] to the point that [her mother's] own mental health has been compromised." (T:26)
The applicant believes the represented person does ultimately respond to authority particularly if she sees that authority as "government or state".
The Public Advocate does not support the appointment of a guardian and her submission in respect of the application is this: the represented person's father (RA) is the person who can get her to do things better than anyone else (with this the applicant and the represented person's parents agree) and there does not need to be a guardian appointed for RA to continue to do the best he can in that role. It is not accepted that the represented person will listen to another authority figure and this contention is supported by her recent history in the supported accommodation. Any appointed guardian will face the same difficulties as is currently the case, namely that the availability of services for the represented person appears to be very limited and she is so oppositional that it is questionable whether a guardian could enforce any decisions made. The only protective measure that seems to be successful is the involuntary admissions to hospital under the MH Act. As for the represented person's current accommodation:
"Although this situation at the moment for [the represented person] is not ideal, it is not placing her at huge risk. She's not too bad there, we've had discussion and it's the best of the worst possible situations for [her]. And although it's not ideal, while [the represented person] [is] non‑compliant with going anywhere, it's probably a situation where the parents are actively monitoring the situation and can be actively involved in that." (T:51)
The parents also do not believe that the represented person will take any notice of an appointed guardian and do not see a benefit in an appointment. RA states:
"And I think if she's just let loose, or believe herself that she's left to live the life as best as she can without anybody's going to come in and tell her this and come in and tell her - - she won't have any of it, so we just oversee that. Now that she lives there, we just put up with that and of course we care." (T:38)

The application for administration and submissions

The represented person is in receipt of the disability support pension. RA says that she has not drawn funds from the account for some time and has accumulated $12 000 to $13 000 in her bank account. The applicant says she has been told by the represented person that the funds are to be used for her funeral.
RA states that the represented person has not paid for anything herself for upwards of 18 months. The applicant says that when the represented person was in supported accommodation she agreed to withdraw funds from her bank account to pay for her board and lodging, however, when she was taken to the bank she refused to do so. Eventually arrangements were made with Centrelink to have the board and lodging fees automatically deducted from her pension.
It appears that the represented person does not pay any child support for her two children. JA states that she receives the Centrelink parenting payment for the child she cares for, as well as an allowance from the Department for Community Development.
RA has proposed himself as administrator and this is supported by the Public Advocate. He says he is confident he can make appropriate funds available to the represented person and also negotiate with the person with whom the represented person currently lives, to pay for her share of living expenses. He does not expect that the represented person will make this difficult; JA says the represented person "[has] got no interest in money at the moment" (T:72).
The applicant supports the appointment of RA as long as JA agrees with the proposal. JA states that she would be prepared to keep a cash book of the transactions of the administration.

The represented person's capacity

In respect of guardianship, the Tribunal must first 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 and control in the interests of her own health and safety or for the protection of others, before it can consider whether she is in need of a guardian (s 43(1)(a), s 43(1)(b) and s 43(1)(c) of the GA Act).
In respect of administration, the Tribunal must first be satisfied that the represented person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate, before it can consider whether she is in need of an administrator (s 64(1)(a) and s 64(1)(b) of the GA Act).
The represented person is presumed to be capable until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b)).
The Tribunal had the following reports provided to it; they are in chronological order:

9 August 2005 Neuropsychological assessment by DM, Clinical Psychologist

The represented person had been admitted to a mental health facility as a consequence of seeming inability to care for herself and her children such that her house had deteriorated to a state of squalor.
According to DM, the neuropsychological test results were consistent with the represented person's "…apparent poor judgment and inability to identify the appropriate course of action". The test scores were also associated with hostility to her environment and impulsive and concrete thinking. The represented person's verbal fluency masked her low level of functioning.
In conclusion DM stated:
"[the represented person] is likely to need ongoing support to develop compensatory skills/strategies required for successful self‑care and parenting and ongoing monitoring of her situation to detect if her coping becomes compromised as new situations develop."

28 June 2006, Social Work report by the applicant

The applicant states that the represented person has an intellectual handicap and has also been diagnosed with a psychotic disorder. She is said not to be able to care for herself or make decisions that impact on her mental health. The represented person displays little insight into appropriate socially acceptable norms of behaviour and has limited insight into her ability to live independently. She is considered to be at risk.

28 June 2006, Doctor's Guide (Tribunal form) by Dr RI, Psychiatrist. Dr RI also gave evidence at the hearing.

Dr RI is of the view that the represented person is incapable of making reasonable judgments about her personal health care, living situation and financial affairs. He assesses her as having an intellectual disability and behavioural problems manifesting mainly in oppositional behaviour. An example of this behaviour is what Dr RI describes as "wilful incontinence behaviour" having ruled out an organic cause for that condition. Dr RI further describes the represented person's problem behaviour as "an extreme adult passive-aggressive behaviour".
The represented person is said to have very few problem solving abilities and a total lack of insight ("She never thinks that anything is wrong with her, and any of her behaviours are inappropriate, nothing" (T:20)). The behavioural deficits are considered permanent and manageable only by control of the represented person's environment.
Dr RI is of the view that the represented person will subvert all accommodation placements.

The Tribunal's findings on the represented person's capacity

The Tribunal is satisfied on the evidence that the represented person is unable to make reasonable judgments in respect of her personal and financial affairs.
In respect of guardianship, the evidence also shows that she is incapable of looking after her own health and safety and is in need of oversight, care and control. The Tribunal accepts that the represented person has a profound lack of insight into all her personal needs and has a consequent inability to plan for those needs, including ensuring she has safe and secure accommodation. She appears unable to engage with anyone (other than perhaps with her father from time to time) due to her extreme oppositional behaviour and she is at inherent risk of abuse and neglect. She is unable even to appropriately manage her activities of daily living as her incontinence would seem to demonstrate.

As regards her finances, the evidence is that the only decision she has made over the last 18 months or so is not to access her money in any way for her needs. The evidence of DM (clinical psychologist) and Dr RI suggests, and the Tribunal accepts, that this decision is the product of the represented person's inability to plan and problem solve and her oppositional behaviour.

In need of a guardian and administrator

When a person is found to be incapable, pursuant to s 43(1)(b) (guardianship) and s 64(1)(a) (administration) of the GA Act, the question that next has to be considered is whether she is in need of a guardian and administrator. Such need is read subject to s 4(2)(c) of the GA Act, which provides that a guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of this Tribunal, be met by other means less restrictive of the person's freedom of decision and action.

Is the represented person in need of a guardian?

The submission against the appointment of a guardian put by the Public Advocate and resigned to by the represented person's parents, is this: the represented person's current circumstances, her living in a caravan with the father of one of her children, is the best that can practically be arranged for her. She decided this herself, although reluctantly, and it is only decisions that she makes for herself that she will act on. Her situation, while it is accepted is far from ideal, is able to be monitored by her parents. It might be added that when the represented person decides her circumstances are intolerable, she seeks the assistance of her parents and historically they have offered her temporary accommodation and other assistance. The represented person's parents do what they can, her father in particular has some success in connecting with her and he can continue in that role without the need for formal guardianship. The Public Advocate also submits that the only protective measure that has been ultimately successful is when the represented person has been at such risk so as to require involuntary detention under the MH Act.
It appears to the Tribunal that this submission conflates the determination of need with the difficulty a guardian might experience undertaking his or her role. In the case of the represented person it is argued that the informal arrangements currently in place meet her needs as best as can be done (albeit inadequately) and, because of her oppositional behaviour, that there is little point in intervening in her life to the extent of a formal appointment because it will not be effective.
Another problem with the submission of the Public Advocate is that it isolates the determination of need from the role and functions of a guardian.
These matters were addressed by the Full Board of the former Guardianship and Administration Board in LGW [2004] WAGAB 4.
In LGW, The Full Board appointed a guardian despite the fact that the person was being held in custody under the then Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) and many of her rights had been subsumed in custody. In deciding whether the person was "in need of a guardian" the Full Board took as its "…starting point [a] look at the statutory statement of the functions of a guardian to consider what role a guardian is intended to play" (par [26]).
The functions are set out in s 45 of the GA Act:
"45. Authority of plenary guardian
(1)Subject to section 43(3), where a person is appointed as a plenary guardian, or 2 or more persons are appointed as joint plenary guardians, he or they have all of the functions in respect of the person of the represented person that are, under the Family Court Act 1997, vested in a person in whose favour has been made -
(a)a parenting order which allocates parental responsibility for a child; and
(b)a parenting order which provides that a person is to share parental responsibility for a child,
as if the represented person were a child lacking in mature understanding, but a plenary guardian does not, and joint plenary guardians do not, have the right to chastise or punish a represented person.
(2)Without limiting subsection (1), a plenary guardian may -
(a)decide where the represented person is to live, whether permanently or temporarily;
(b)decide with whom the represented person is to live;
(c)decide whether the represented person should work and, if so, the nature or type of work, for whom he is to work and matters related thereto;
(d)subject to Division 3, consent to any treatment or health care of the represented person;
(e)decide what education and training the represented person is to receive;
(f)decide with whom the represented person is to associate;
(g)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; and
(h)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.
(3)A plenary guardian may not -
(a)vote in any election;
(b)make a will or other testamentary instrument;
(c)consent, under section 17 of the Adoption Act 1994, to the adoption of a child or under section 69(1)(a)(ii) of that Act to the adoption of a represented person; or
(d)under the Marriage Act 1961 of the Commonwealth, give consent in relation to the marriage of a minor, sign a notice of intended marriage or take part in the solemnization of a marriage,
on behalf of a represented person; or
(e)consent to the sterilization of a represented person except in accordance with Division 3."
It is helpful to quote from the decision in LGW at some length ([33] to [35]):
"…The scope of guardianship is therefore defined by the reference to the provisions of the Family Court Act. Section 68 of the Family Court Act defines 'parental responsibility' as 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'…
In this regard, amicus pointed the Board to Dickey, Family Law (1997 Third Edition) which states that parental responsibility involves the power to determine such matters as the form of education that a child is to receive, the religion that the child is to be brought up in, the name by which a child is to be known, the place where the child is to reside, the diet the child is to receive and the persons with whom the child may associate. Dickey also specifically acknowledges that parental responsibility includes the power to make representations on behalf of the child. In the context of adult guardianship, this might take the form for example of making enquiries, obtaining information, seeking assistance, marshalling services or making submissions on behalf of the represented person as well as being the 'voice' with legal standing to assert the best interests of the represented person. Dickey also notes that even under the narrowest view of guardianship, the concept signifies duties to the child ab extra, that is, a warding off, the defence, protection and guarding of the child, or his property from danger, harm or loss that may enure from without, as opposed to custody which essentially concerns the control, care and responsibility for a child in regard to his day‑to‑day needs, food, clothing, instruction and the like [citingWedd v. Wedd [1948] SASR 104 at 106‑107.] On this view, the description in s 45(1) encompasses not only 'authoritative' decision‑making but all the other duties, powers and responsibilities that a parent may exercise in relation to a child.
… In the end, we are driven back to the text of the legislation. It appears to us that the description of the functions in s 45(1) is clear in its terms. The references to the provisions of the Family Court Act in our view describe a bundle of responsibilities that often include decision-making but may also cover a range of other functions, duties and powers that attach whenever one has the equivalent of parental responsibility for the long‑term and day‑to‑day care, welfare and development of a represented person. This includes acting to assert and protect the rights and interests of the child against third parties and making representations on behalf of a person."
And at [40]:
"We consider that for someone to be in need of a guardian there must be some issue that requires the Board to intervene to vest someone with clear legal authority in respect of matters 'relating to [her] person'. (see s 43(1)(b)(ii)). This will often be the need for a decision to be made with legal authority, but in an appropriate case can involve other functions within the compass of parental responsibility even though the ultimate authority to make a particular decision lies in the hands of another. Thus, we do not consider that the concept of need in s 43(1)(c) is restricted to the need to make an 'authoritative decision'. The question is whether there is a need for legal authority to act on behalf of the person with disability. We believe this view is consistent with the observations made in Re MM (2001) 28 SR (WA) 320 referred to above."
At the time of the LGW decision, s 45(1) of the GA Act referred to the then "specific issues order" which conferred responsibility for the day-to-day and long‑term care, welfare and development of a child. The change in the Family Court Act 1997 (WA) (and consequential change to the GA Act) to "parenting order" maintains the reliance on the definition of "parental responsibility" as noted in LGW. Although the terminology is different the scope of responsibility remains the same.
The relevance of LGW to the current case is twofold. Firstly, the extent of guardianship (as it relates to "parental responsibility") is very wide and includes decision-making, advocacy, making representations, seeking assistance, marshalling services and ensuring protection.
Secondly, "need" is not to be determined by reference to the difficulty the guardian might encounter in carrying out his or her function(s). The duty of "parental responsibility", that a guardian has for a represented person under s 45(1) of the GA Act (as if the latter were a child lacking in mature understanding), carries within it the successes and failures encountered by any parent in undertaking the parental role.
The evidence before the Tribunal is that the represented person is manifestly in need of a guardian. It would seem she is unable to adequately care for herself at the most basic level and is extremely vulnerable to exploitation. She is unable to plan or problem‑solve for her future and appears to be able only to react to her circumstances as they immediately present to her. The applicant is of the opinion that the represented person is not capable of living independently and the Tribunal has some sympathy with that view. As a consequence the represented person exposes herself to the possibility of abuse in the decisions that she makes.
The behaviour, actions and needs of represented person appear to have nearly overwhelmed the resource of her parents and the alternatives available to them and the mental health system, the latter being the focus of State involvement in the represented person's life.
There appears not to be an aspect of the represented person's life that does not require intervention including accommodation, support services, health care, contraception, her children, the reported criminal charges and advocacy and representations on her behalf within the mental health system and disability services. Her needs would seem to fit into the full range of duties and responsibilities of a parent encapsulated in "parental responsibility" and it is the view of the Tribunal that an order for plenary guardianship is the most appropriate response to those needs and in the represented person's best interests (s 43(1) and s 4(2)(a) of the GA Act).
The Tribunal does not accept that the informal arrangements currently in place meet the needs of the represented person, in particular the reliance on the represented person's parents to assist when they can and to monitor her living situation. The evidence shows that a significant effect of this arrangement is to place great strain on the parent's relationship and this cannot be in the represented person's best interests (s 4(2)(a) and s 4(2)(c)).
The Tribunal has considered the apparent wish of the represented person not to have a controlling authority such as a guardian in her life, but takes the view that her needs are such that her wishes must be overridden in her best interests (s 4(2)(a) and s 4(2)(f)).
The Tribunal accepts that the represented person's cognitive impairment and oppositional behaviour is likely to make the task of the guardian a very difficult one. The difficulty of giving effect to a guardianship order is what the Full Board of the Guardianship and Administration Board in NCK [2004] WAGAB 6 likely contemplated when placing the determination of need in the context of "… whether there is, or may be, a need for a guardian to intervene, in a more generalised sense, in the affairs of [a] person…" (at [64]).
It is to this "generalised sense" in addition to the more particular needs of the represented person, that the Tribunal has determined the value of the appointment of a plenary guardian.

Who should be appointed guardian?

Except where she is appointed to act jointly with another person or persons, the Tribunal must not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act (s 44(5) of the GA Act).
The evidence shows that the represented person's parents are at the limits of how their skills and emotional resources can respond to her overwhelming needs. They appear to be resigned to the situation as it is, which given the difficulties they have faced with their daughter, is understandable.
It is the view of the Tribunal that someone external to the family system (and for that matter external to the somewhat blunt authority of the mental health system), is needed to assume the responsibility of a guardian for the represented person. The guardian must be in a position to determine the extent to which the represented person can be assisted and to advocate for her complex needs with the agencies of the State.
The applicant has proposed that the Public Advocate be appointed the represented person's guardian and with that the Tribunal agrees. The Public Advocate is to be given plenary authority.
The Tribunal is mindful that a plenary order in its ultimate effect removes the personal decision‑making rights of the represented person and that such a determination should not be made lightly (s 4(2)(d)). For that reason the order appointing the Public Advocate will be reviewed by the Tribunal in 12 months so that a determination can be made in a timely manner as to the extent of the ongoing need for guardianship.

Is the represented person in need of an administrator?

The evidence shows that the represented person, in a practical sense, does not currently manage her estate. She is in receipt of the disability support pension but does not use that income for her needs; it is simply accumulating in a bank account.
There is evidence to indicate that the represented person is at significant risk of exploitation and it is surprising her funds have not been dissipated.
There are two clear needs in relation to the represented person's income and funds; they must be protected and they must be appropriately used for her day to day living requirements. It is the Tribunal's view that this cannot happen unless an administrator is appointed.
The Tribunal is therefore satisfied the represented person is in need of an administrator (s 64(1)(b)). There is no less formal way in which her estate can be protected.
Despite the represented person's oppositional behaviour, it is not submitted by any of the parties that an administrator is not necessary for her. As with guardianship it is the view of the Tribunal that the represented person's best interests should take priority over her apparent wish not to have anyone control her finances (s 4(2)(a) and s 4(2)(f)).
It is the decision of the Tribunal that the administrator be given plenary authority given the represented person's inability to manage any aspect of her estate.
The represented person's parents propose that provision be made to allow the administrator to make gifts from her estate from time to time to her two children. The Tribunal accepts this submission and will allow up to $500 per annum for that purpose.

Who should be appointed administrator?

The represented person's father (RA) has proposed himself as administrator and this is supported by the applicant and Public Advocate.
Despite the concerns about the extent to which the parents can continue to assist the represented person within the limits of their physical and emotional resources, it is arguable that such an appointment would be complementary to the appointment of the Public Advocate as guardian, in that it can provide flexibility in financial decision‑making for the represented person in the circumstances of her oppositional behaviour and chaotic living situation.
The Tribunal is prepared to appoint RA as plenary administrator for the same initial period of 12 months as the guardianship appointment, in the expectation that he together with the Public Advocate can provide the best means currently available to deal with the represented person's needs.

Orders

On the application for appointment of an administrator for the represented person the Tribunal orders that:
1.RA be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
3.This order is to be reviewed by 28 September 2011.
On the application for appointment of a guardian for the represented person, the Tribunal orders that:
1.The Public Advocate be appointed plenary guardian of the represented person.
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 28 September 2007.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER