BB
[2014] WASAT 2
•8 JANUARY 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: BB [2014] WASAT 2
MEMBER: MR J MANSVELD (SENIOR MEMBER)
HEARD: 18 OCTOBER 2013
DELIVERED : 8 JANUARY 2014
FILE NO/S: GAA 4315 of 2012
GAA 4345 of 2012
MATTER :BB
Applicant and Represented Person
Catchwords:
Guardianship and administration Represented person seeking review of orders Represented person has history of alcohol misuse Acquired brain injury Executive dysfunction Represented person living in restricted environment for own health and safety Best interests decision by guardian Represented person to be encouraged to live in the general community consistent with his wishes and his proper protection Decision involves degree of risk when taking into account represented person's autonomy and need for his protection
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2), s 17A, s 43, s 43(1)(b), s 43(1)(c), s 44(5), s 51, s 64, s 64(1)(a), s 68(5), s 70, s 86, s 90, s 113, Sch 1 Pt B, Div 3 Pt 5
Result:
Guardian and administrator reappointed
Summary of Tribunal's decision:
BB was a 50-year-old man under guardianship and administration orders. He was residing in a secure aged care hostel.
BB sought review of the guardianship and administration appointments and was seeking revocation of those orders.
BB was placed in the secure aged care hostel by his guardian because he had reached a point where he was manifestly unable to live safely in the general community due to extreme self-neglect as a consequence of alcohol abuse. He was at high risk of falls and in previous falls he had sustained injuries to his brain.
The submission of BB was that in the over 12 months he had been in the hostel he had not consumed alcohol; he had made a commitment to himself that he would continue to abstain from alcohol and he had been effectively rehabilitated to the extent that he should be permitted to make his personal and financial decisions.
The Tribunal accepted the evidence of BB's treating psychiatrist. He had known BB for many years and had an intimate understanding of his addiction and its consequences. The evidence of the treating psychiatrist was that BB continued to have executive dysfunction impacting on his ability to generate plans and strategies that would place him in an environment where the risk of alcohol abuse would be minimised so as to protect his health and safety.
The Tribunal continued with the guardianship and administration appointments.
The Tribunal noted that in the statutory requirement to make a decision in BB's best interests, the guardian was obligated to pursue a course of action (as far as that was possible) which worked towards BB living in the general community in a way which was consistent with his wishes and his proper protection. The course of action had to be the subject of ongoing consideration and was a positive obligation in the sense that the guardian had to initiate and explore all reasonable possibilities for that to occur.
Category: B
Representation:
Counsel:
Applicant and Represented Person : Ms C Huynh
Solicitors:
Applicant and Represented Person : Corser & Corser
Case(s) referred to in decision(s):
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
BB is a 50yearold man currently residing in a secure aged care facility (hostel) upon a decision of the Public Advocate (guardian) appointed as his guardian under the Guardianship and Administration Act 1990 (WA) (GA Act).
BB is also the subject of an order for administration appointing the Public Trustee (administrator) as the administrator of his estate pursuant to the relevant provisions of the GA Act.
BB has sought review of the guardianship and administration appointments and is seeking revocation of those orders.
The applications were made by BB in late 2012. The reason for the delay in dealing with the applications has been twofold. On 19 February 2013 the Tribunal directed the guardian to seek separate legal representation for BB. This was eventually secured in May 2013. On 9 May 2013 BB was granted an adjournment of the hearing set down for 13 May 2013 to enable further capacity reports to be obtained. Those reports were filed with the Tribunal on 23 August 2013. Some further time elapsed in setting a hearing date that would enable the care manager at the hostel and BB's treating psychiatrist to attend the hearing to give evidence.
The applications were finally heard on 18 October 2013. In attendance was BB, his legal representative, the guardian, the administrator, the hostel clinical service manager and BB's treating psychiatrist.
The decision was reserved. What follows is the decision and reasons. The names of the parties have been anonymised as required by the confidentiality provisions of the GA Act (s 113 and Sch 1 Pt B).
Background
BB has been subject to guardianship and administration orders since October 2010.
In August 2010 applications were made by the rehabilitation team in a teaching hospital. BB had earlier been admitted to an acute hospital bed after sustaining a head injury from a fall. BB had a history of significant alcohol misuse, alcohol related seizures and depression. The latest brain injury was the third in 10 years.
Reports from BB's treating psychiatrist showed that his alcohol dependency went back to at least 2005.
BB underwent a neuropsychological assessment in August 2010. The assessment revealed that although BB had many intact cognitive functions, this masked a significant executive dysfunction resulting in memory loss and a lack of insight into his difficulties such that he was not taking his limitations into account when making decisions. The neuropsychologist recommended a further assessment in 12 months to monitor any cognitive change, noting that should BB remain abstinent and should he not sustain any further neurological trauma then his cognition might improve.
Subsequent to his own discharge from rehabilitation, BB had been evicted from the men's lodging house where he had been living. He had been found collapsed from excessive alcohol consumption (his drink of choice being the mouthwash, Listerine), his room at the lodging house was soaked with urine, the television had been destroyed and the room was in general disarray. It was reported that BB had been assaulted and his wallet and credit cards stolen.
It was also reported that BB had substantial debts and had been involved in a divorce and property settlement with his former spouse. He has three children.
On 14 October 2010 orders were made appointing the Public Advocate as BB's limited guardian to decide where and with whom he was to live, both permanently and temporarily; to determine his support services; to make treatment decisions; to decide matters of restraint and to act as guardian ad litem. The Public Trustee was appointed his plenary administrator and an enduring power of attorney BB had made on 14 August 2010 was revoked. The administrator was given the authority to make gifts of up to a total amount of $1,000 per annum. The orders were set for review in five years.
On 25 October 2010 BB sought review of the guardianship and administration orders by the Full Tribunal. Under s 17A of the GA Act a party aggrieved by the decision of a single member can seek an internal review by the Tribunal comprising of a judicial member and two other members.
On 6 December 2010 the Full Tribunal confirmed the order for administration and amended the guardianship order, removing the restraint function.
On 14 August 2012 the guardian made an urgent application for review of the guardianship order. The relevant aged care assessment team had assessed that BB's care needs could no longer be supported in the community and that he needed secure hostel care. The guardian sought a reinstatement of the restraint function because BB had refused to leave hospital to move to the hostel.
The hostel accommodation was supported by BB's treating psychiatrist who stated in a report from August 2012 that BB's cognitive deficits had deteriorated gravely over the years. BB was said to be severely compromised by his impaired ability to learn new information and had severely impaired planning and organisational skills. The treating psychiatrist assessed BB as being exceedingly vulnerable and required supported, supervised accommodation.
On 14 August 2012 the Tribunal refused to grant the restraint authority and confirmed the existing guardianship order. In the event BB eventually agreed to move to the hostel.
The current applications
BB
The evidence and submissions of BB are straightforward. He states that he is now well enough to live in the community and make his own personal and financial decisions. In that respect he disagrees with the assessment of his treating psychiatrist that he is unable to learn new information and with the clinical service manager of the hostel that he continues to need supported accommodation (see below).
BB states that he has made a commitment not to consume alcohol although he says that he accepts that there is always a risk of relapse. He says that proof of this commitment is the fact that he does not participate in the regular 'happy hour' at the hostel at which alcohol is consumed by other residents. He has not asked to be given alcohol and he is aware of a resident who is allowed to keep some alcohol but he has not attempted to take advantage of that situation.
BB states that he is independent in all aspects of his care; he showers regularly and does not need to be prompted, and attends at mealtimes also without prompting. He says he is compliant with his medication for anxiety and depression.
If the guardianship and administration orders were revoked, BB states that he would seek rental accommodation through a real estate agent but also that he has some friends with whom he would approach to live for support. As regards his financial affairs, BB states that he would continue to make the debt repayments currently managed by the administrator; however, he disagrees with the administrator as to his income tax liability and the extent of some of his credit card debts.
In the written material accompanying his application BB sets out the history of his tertiary education and qualifications, his work history at senior public service levels and some of the attempts he has made at rehabilitation from alcohol abuse. He disagrees with the report of the administrator (see below) that whilst renting a unit privately in 2011 and 2012 the property effectively became unfit for habitation due to his neglect consequent upon ongoing alcohol abuse. BB says he does not know why he was evicted from the unit but in his view it was not because of the condition of the property.
In the written material BB states that the main issue for him continues to be the refusal of his former spouse to allow him to see his children. One of the reasons he does not like the hostel is that he prefers to live closer to his children so he can have contact with them. His children have not visited him since he has lived in the hostel. BB emphasised this point in his oral evidence.
The clinical service manager
The clinical service manager states that BB presents as alert and with a strong sense of his perceived needs. She assesses BB as lacking the capacity to understand and acknowledge the circumstances which resulted in his placement in the hostel.
Although initially of the view that BB is totally dependent on hostel staff to support him in all his daily living activities, upon questioning, the clinical service manager conceded that BB wakes himself up in the morning and makes his own way to breakfast; will make a greater effort to present himself appropriately when he has an appointment outside of the hostel; and is compliant with his medication and may, when necessary, remind staff if his medication is late.
The clinical service manager states that whilst BB is encouraged to maintain a degree of independence, the hostel is a highly structured environment. Meals are provided and meals are at set times, as are the times medication is dispensed. The residents' laundry is done by hostel staff and a resident's day is otherwise filled with structured activities. On the occasions that BB has left the hostel he has been supervised.
The clinical service manager states that BB is not prevented from attending the 'happy hour' sessions when alcohol is given to certain residents but that he is not one of the residents who is currently permitted to have alcohol. The limited consumption of alcohol by the residents is very strictly controlled; however, BB has made no attempt to procure alcohol since being in the hostel. As a consequence there has been a marked improvement in BB's physical health.
The clinical service manager continues to have reservations that should BB not live in a structured, supported environment he would be at risk of relapse into alcohol abuse.
The treating psychiatrist
BB has been under the care of the treating psychiatrist since the end of 2005 or the beginning of 2006. His most recent assessment of BB took place on 25 July 2013.
In letters from 2009 to BB's former solicitor and employer, the treating psychiatrist presents a brief history of BB's alcohol dependency since 2005. He assesses BB as having a serious and dangerous alcohol addiction disorder. He describes several attempts at rehabilitation and BB's subsequent relapses. In a letter to the solicitor dated 24 August 2009 the treating psychiatrist states:
[BB] has maintained abstinence in the approximate 4-5 months that he has been in [a rehabilitation facility] under strict supervisory care. [BB]'s cognitive condition is improving, and the obvious deficits that were present on his discharge from [a psychiatric clinic] have [sic] are less prominent.
…
Long term prognosis appears more favourable than in April of this year, but relies upon continuing abstinence and is still a process in evolution.
In a letter to BB's former employer also from 24 August 2009, the treating psychiatrist states:
His cerebral executive functions have deteriorated significantly, and the concern is how much is relatively transient and how much will prove to be long term.
The treating psychiatrist states that BB's health has been affected over many years by a debilitating and recurrent alcohol dependency. There have been many complications including withdrawal seizures, post traumatic brain injuries requiring neurosurgical intervention and a significant impairment of gait and stability.
The treating psychiatrist states that alcohol dependency is categorised as a psychiatric condition.
Despite demonstrating difficulties with simple arithmetic, the treating psychiatrist assesses BB as having good basic intellectual functioning but is of the opinion that his higher level or executive functioning has not normalised in the time BB has lived in the hostel. The treating psychiatrist describes executive functioning as follows:
… the executive functions really cover the subtle but critical decisionmaking processes that we need to make to live life successfully in terms of social and interpersonal and career function ...
… executive function means, the executive function term, covers how we go about, how we achieve our goal. … [T]he ability of how to start and stop action. How to alter our behaviour in certain situations, and how to plan and create strategies for coping with things that come about and challenge us in our life situations. How to look at outcomes. How to adapt to think abstract[ly] … and to hold logical and sensible, and sometimes very subtle concepts. (T:2122; 18.10.13)
The treating psychiatrist assesses BB as having permanent and not necessarily retrievable injuries to his brain, although the brain is considered 'a very plastic organ and made to recover amazingly, sometimes' (T:24; 18.10.13).
The treating psychiatrist recommends a further neuropsychological assessment to enable a 'much finer view' of BB's executive functioning.
It is the opinion of the treating psychiatrist that the past is generally the best guide to the future, and were BB to be living in a less structured and supervised environment than that of the hostel, there would be high risk of a recurrence of alcohol abuse with attendant falls risk and further closed brain injuries:
The problem to me is that I fear that his judgment is still not that good that he would necessarily stay away from alcohol … and he could easily relapse and get into considerable difficulty. (T:20; 18.10.13)
… To me the issue does come down to one particular point perhaps amongst others that if he was able to resist alcohol outside of such a tight structured environment then one could make an argument or looking at other option[s] for him. The concern for myself would be … that alcohol is a terribly insidious drug and the pattern for people who have had as much negative impact and as much consumption as [BB] has had, is that recurrence is so common. I can't say that he has to go back to alcohol, I can only say that the risk is very high. (T:2021; 18.10.13)
It is the view of the treating psychiatrist that BB has not been able to come to terms with the fact that the breakdown of his relationship with his former spouse and his children is because of the effects of alcohol on his social and personal behaviour and function.
It is the opinion of the treating psychiatrist that were BB permitted to leave the hostel he would need to at first go to a 'step down' accommodation facility with the necessary support but even that would not be risk free.
As regards BB's finances, the treating psychiatrist states that if his estate was 'simple' it is probable BB could cope. However:
… I will say that whatever the finances are, one of the saddest things about alcohol abuse is that people with vulnerability to alcohol abuse and excess would attempt to consume as much of their available finances - their disposable week by week financial allowance. In other words, people's addictions generally now, with alcohol, certainly, will use whatever money … to consume the substance or drug or in this case alcohol that is needed. (T:29; 18.10.13)
The general practitioner
The Tribunal received a report from BB's general practitioner who was not called to give oral evidence. In the report the diagnosis given to BB is that of alcohol related dementia and organic brain injury. The general practitioner states that BB has good memory and 'reasonable cognition' but has poor insight and has a tendency to be impulsive. The general practitioner states that the 'forced abstention' from alcohol has also improved BB's mental ability; that he has 'some capacity' but poor judgment.
The guardian
The guardian states that prior to BB moving to the hostel in August 2012 a number of unsuccessful attempts were made for BB to live in the general community. These included a supported but open accommodation and a private rental. All failed due to BB's significant self-neglect (which resulted in hospital admissions) and neglect of his accommodation as a consequence of ongoing alcohol abuse.
Since the decision was made for BB to live in the hostel, the guardian states that alternative accommodation has not been contemplated as it is considered BB is currently appropriately accommodated. BB is permitted to regularly leave the hostel under the supervision of a friend to visit a café. Initially requests for excursions were refused because of a fear that BB might abscond.
The guardian states that BB has consented to:
•a medication change proposed by his general practitioner;
•his participation in a dental screening program; and
•having a flu vaccination.
The guardian is of the view that BB has expressed unrealistic expectations of completing a law degree and of living independently and BB has not as yet proposed a strategy on how he intends to accomplish these goals.
The guardian states that nothing has been progressed in respect to BB's wish to have contact with his children.
The guardian submits that BB remains in need of a guardian to consent to treatment and, because of his dissatisfaction with the hostel, it may be necessary to continue with the accommodation function. The other functions in the existing order, those of services and guardian ad litem are, in the submission of the guardian, no longer required.
The administrator
In several written reports, the administrator describes a very active and complicated administration of BB's estate.
The current state of BB's estate is that he is in receipt of a public service pension of about $59,000 per annum. His total yearly expenses are approximately $51,000 which includes debt repayments and administration fees. The administrator has available cash funds of $2,414 (October 2013), which apart from personal effects, is BB's only asset. BB has debts of about $76,500 which includes amounts owing for child support, income taxation, credit cards and a debt to Centrelink.
The administrator reports that prior to the making of the administration order BB expended $190,000 on legal fees in contested divorce and property settlement proceedings. BB entered into a loan agreement to pay for the legal fees.
During the term of the administration BB has maintained regular contact with the administrator. Prior to BB moving to the hostel the administrator describes an incident in which BB attended the administrator's office in a neglected state:
… the state of his hygiene was amongst the worst we have had to deal with[.] (Report dated 15 October 2013, page 2)
The administrator states that BB remains in denial about the state of the rental property from which he was evicted prior to the hostel placement. The property manager had contacted the administrator to advise that nothing could be salvaged from the property and that:
All flooring needed to be replaced and after trauma cleaning they could not eradicate the smell and the property needed to be painted.
(Report dated 15 October 2013, page 3)
The administrator states that he has been able to have a credit card debt reduced by $5,000 and to have waived accrued interest on another credit card debt. Repayment arrangements have been made for all outstanding debts. The administrator notes that BB accrued more than $13,000 in ambulance fees during 2011 and 2012, often discharging himself from hospital within hours of admission only to require another ambulance on the same day.
The administrator states that BB made a complaint to the Tax Practitioners Board against the administrator's taxation manager but that the complaint was dismissed.
In recent times that administrator states that he has been negotiating with the executor of the estate of BB's father. It has been decided that it is not in BB's financial best interests to challenge the will. He stands to receive $90,000 as his share of the estate.
The administrator submits that the administration order should continue.
The GA Act
Under s 90 of the GA Act the Tribunal can, upon review of guardianship and administration orders: confirm the orders, amend the orders, revoke the orders, or revoke the orders and substitute other orders for them.
The making of guardianship and administration orders is governed by s 43 and s 64 of the GA Act subject to the principles stated in s 4.
Under s 43(1)(b) of the GA Act, before a guardianship order can be considered, the Tribunal must first be satisfied on the evidence that a person is either incapable of looking after their own health and safety, is unable to make reasonable judgments in respect of matters relating to their person, or is in need of oversight, care or control in the interests of their own health and safety or for the protection of others.
Under s 64(1)(a) of the GA Act, before determining whether an administration order can be made, the Tribunal must be satisfied on the evidence that a person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate.
Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
A person is presumed to be capable of looking after their own health and safety or of making reasonable judgments about their person or estate until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b)(i), s 4(2)(b)(ii) and s 4(2)(b)(iv) of the GA Act).
If it is determined that the presumption of capacity is rebutted then before an order can be made, the Tribunal must further find that the person is in need of a guardian and administrator and that their needs cannot be met in a manner less restrictive of their freedom of decision and action (s 43(1)(c) and s 4(2)(c) of the GA Act).
If it is determined that the person is in need of a guardian, a plenary appointment shall not be made if the appointment of a limited guardian is, in the opinion of the Tribunal, sufficient to meet the needs of the person (s 4(2)(d) of the GA Act).
The appointment of a limited guardian or an administrator shall, in its terms, impose the least restrictions possible on the person's freedom of decision and action (s 4(2)(e) of the GA Act).
In considering any matter the Tribunal shall, as far as possible, ascertain the views and wishes of the person to whom the order applies; however, the primary concern of the Tribunal shall be the best interests of the person (s 4(2)(a) and s 4(2)(f) of the GA Act).
Except where she is appointed to act jointly with another person or other persons, the Tribunal shall not appoint the Public Advocate as guardian or administrator unless there is no other person who is suitable and willing to act (s 44(5) and s 68(5) of the GA Act).
The standard of proof is the balance of probabilities to the standard established in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306, at 105).
Decision of the Tribunal
The evidence shows that prior to the hostel accommodation, BB had reached a point where he was manifestly unable to live safely in the general community because of extreme self-neglect as a consequence of alcohol abuse. He was at an ongoing high risk of falls and in previous falls he had sustained injuries to his brain.
Because of BB's previous high functioning, his deficits in his cognition were to some extent masked, but by 2010 he was assessed as having significant difficulties with his executive functioning which is described by his treating psychiatrist as the capacity to plan, to create strategies for coping with life situations, to consider outcomes, and how to logically and sensibly reach goals that have been set.
I am satisfied that at the point at which BB moved to hostel accommodation, his decisionmaking and behaviours were placing his life at risk.
The submission of BB is that in the over 12 months he has been in the hostel he has not consumed alcohol; he has made a commitment to himself that he will continue to abstain from alcohol and he has been effectively rehabilitated to the extent that he should be permitted make his personal and financial decisions.
I do not accept that the evidence supports BB's submission.
I accept the evidence of BB's treating psychiatrist. He has known BB for many years and has an intimate understanding of BB's addiction and its consequences. The evidence of the treating psychiatrist is that BB continues to have executive dysfunction.
BB states that he acknowledges there is a risk of relapse into alcohol abuse should he have unrestricted access to alcohol. I am not convinced, however, that such a statement in the case of BB demonstrates actual insight into his condition sufficient to enable him to generate plans and strategies that would place him in an environment where the risk of alcohol abuse is minimised so as to protect his health and safety.
I accept the view of the treating psychiatrist that in the case of addiction, the past is generally the best guide to the future. It appears that BB has, in recent years, only been able to abstain from destructive alcohol misuse for extended periods when under strict supervisory care, for example, once for four to five months in 2009 and currently for over a 12 month period in the hostel.
On the evidence before me I am satisfied that BB is currently unable to look after his own health and safety and is in need of oversight, care and control in the interests of his own health and safety. Given his ongoing executive dysfunction, I am also satisfied that BB is currently unable to make reasonable judgments about major personal decisions.
I accept that such a finding places BB in an invidious position in that it is difficult for him to demonstrate an improvement in his functioning when he is living in an environment that provides for all his basic daily needs. Any commitment he makes to abstain from alcohol misuse cannot be tested in his current accommodation.
This is particularly difficult for a relatively young man who is faced with a life that is significantly restricted.
It is in situations such as these that s 51 of the GA Act assumes a particular and practical relevance. Section 51 sets out some of the factors that encompass a best interests decision made by a guardian. It is instructive to set out the section in full:
Guardian to act in best interests of represented person
(1)Subject to any direction of the State Administrative Tribunal, a guardian shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if he acts as far as possible
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
(3)Nothing in subsection (2)(a) shall be read as authorising a guardian to act contrary to the Legal Profession Act 2008.
In my view, in the statutory requirement to make a decision in BB's best interests, the guardian is obligated to pursue a course of action (as far as that is possible) which works towards BB living in the general community in a way which is consistent with his wishes and his proper protection. The course of action must be the subject of ongoing consideration and is a positive obligation in the sense that the guardian must initiate and explore all reasonable possibilities for this to occur. Whilst it is entirely appropriate for a guardian, at a point in time, to make a decision as in the case of BB, that his safety requires secure care, plans and strategies should be put in place in an active and ongoing way which give BB the opportunity to demonstrate an improvement in functioning and an ability to live more freely in the community. It is not sufficient to expect BB to initiate this action in the current restricted environment in which he finds himself.
I accept that the making of a decision in a person's best interests, as contemplated by s 51 of the GA Act, likely involves a degree of risk as the guardian searches for a balance between the person's autonomy and protection.
I agree with BB's treating psychiatrist that if living in the community is at all possible for BB in the future it will require a transitional, step by step process. The first step in such a process might be, as the treating psychiatrist suggests, a fresh neuropsychological assessment to determine to what extent, if any, executive function has improved and can further improve if abstinence is maintained.
In light of findings on BB's capacity and my comments on the operation of s 51 of the GA Act, I am satisfied that BB currently remains in need of a guardian and it is in his best interests that the Public Advocate be reappointed.
I do not agree with the guardian that the functions to be given to the guardian should be restricted to decisions about BB's accommodation and treatment. Those functions should be retained, as should the authority to determine the services to which BB should have access. The latter function is needed to ensure the guardian has the full range of authority to explore and give effect to any process which can encourage BB to live in the general community.
A significant issue for BB is his wish to have contact with his children. There was no evidence before the Tribunal which would indicate just how realistic such a wish is. The guardian says that nothing has progressed on this matter during the term of the order, which is unfortunate given its importance to BB. I will therefore include a function which obliges the guardian to advocate and make representation for BB in respect to any possible contact with his children.
As regards BB's financial affairs, his estate retains a complexity that is beyond his current mental capacity to manage, given his deficits in executive functioning. BB's alcohol addiction is a recognised psychiatric condition and falls within the definition of mental disability, as does his acquired brain injury that resulted from his falls. BB has strong views about finances, particularly about his income tax liability and credit card debts. Where his views on these matters differ from the administrator, I accept the evidence of the administrator, given the investigations that the administrator has undertaken to ensure the figures are correct. The strong views of BB are not matched, in my view, by an understanding of his actual financial position and he also appears to lack insight and appreciation into the circumstances which has led to his current parlous financial state.
In my view it is in BB's best interests that the administration order be confirmed.
I should note that in the making of a best interests decision for BB, the administrator has, under s 70 of the GA Act, the same obligations as does a guardian under s 51 of the GA Act.
I have decided that both the guardianship and administration orders should be reviewed in two years.
Orders
Guardianship
On an application for review under s 86 of the Guardianship and Administration Act 1990 (WA) of a guardianship order dated 15 August 2012 concerning the represented person, determined by Senior Member J Mansveld on 8 January 2014, it is declared that the represented person:
(a)is incapable of looking after his own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to his person;
(c)is in need of oversight, care or control in the interests of his own health and safety; and
(d)is in need of a guardian.
It is ordered that:
The order is amended so that it now reads:
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.
(b)To decide with whom the represented person is to live.
(c)Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person.
(d)To determine the services to which the represented person should have access.
(e)To advocate and make representations on behalf of the represented person in respect to any contact he may have with his children.
2.This order is to be reviewed by 8 January 2016.
Administration
On an application for review under s 86 of the Guardianship and Administration Act 1990 (WA) of an administration order dated 6 December 2010 concerning the represented person, determined by Senior Member J Mansveld on 8 January 2014, it is declared that the represented person:
(a)is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all of his estate; and
(b)is in need of an administrator of his estate.
It is ordered that:
The order is confirmed as follows:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is authorised to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person for his children.
3.The enduring power of attorney dated 14 August 2010 by which the represented person appointed [name deleted] to be his attorney is revoked.
4.This order is to be reviewed by 8 January 2016.
I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, SENIOR MEMBER
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