DG
[2020] WASAT 90
•10 AUGUST 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: DG [2020] WASAT 90
MEMBER: DR E MARILLIER, MEMBER
HEARD: 30 JUNE 2020 AND 14 JULY 2020
DELIVERED : 14 JULY 2020
PUBLISHED : 10 AUGUST 2020
FILE NO/S: GAA 1813 of 2020
DG
Represented Person
Catchwords:
Capacity to make reasonable judgments - Compliance is not consent - Compliance does not indicate capacity
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(4), s 40, s 43, s 64
Result:
Public Trustee appointed as plenary administrator
Public Advocate appointed as limited guardian
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Hunter and New England Area Health Service v A (2009) 74 NSWLR 88
LGW [2004] WAGAB 4
MC [2004] WAGAB 5
Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA)
Szozdav Szozda [2010] NSWSC 804
REASONS FOR DECISION OF THE TRIBUNAL:
Background
DG is a man in his 60s who sustained a traumatic brain injury after falling while intoxicated. His wife, VG, had indicated her intention to separate from him some months prior to the injury, but they were still living in the marital home with their son at the time of DG's hospitalisation. Their daughter ZG, no longer lives with her parents.
VG and ZG applied to the Tribunal seeking the appointment of VG as the administrator and guardian for DG under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act).
DG was initially cared for at Royal Perth Hospital (RPH) for approximately three weeks and then transferred to the State Rehabilitation Service (SRS) in midMay 2020. Medical, psychological and service provider reports indicated some improvement in his capacity between the time of the application and the first hearing on 30June 2020 (first hearing), however formal neuropsychological testing of capacity had not been completed. The matter was adjourned to permit the completion of this testing to provide further evidence in regard to DG's capacity to make reasonable decisions in his own best interests.
Present at the second hearing on 14 July 2020 (second hearing) by video conference were DG, VG, and ZG, accompanied by NA and Dr M, a social worker and a doctor from the SRS, and a representative from the Office of the Public Advocate (OPA), AC.
The relevant legislation
The Guardianship and Administration Act 1990 (WA)
In coming to its findings and determinations, the Tribunal must observe the principles set out in s 4 of the GA Act:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)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 the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
Section 43 of the GA Act states:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40
(a)has attained the age of 18 years;
(b)is
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint —
(d)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of a guardian, it shall also declare the matter or matters set out in paragraph (b) of that subsection of which it is satisfied[.]
Section 64 of the GA Act states:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40
(a)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; and
(b)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied[.]
Section 3 of the GA Act defines a mental disability as including 'an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.'
The issues to be determined by the Tribunal
In all hearings regarding an application for the appointment of a guardian and administrator under the GA Act, the Tribunal must determine answers to the following questions:
(1)Has the presumption of capacity been rebutted to the satisfaction of the Tribunal?
(2)If so, is there a need for orders to allow the proposed represented person's health, safety and finances to be adequately protected, or is there a less restrictive alternative that would achieve this outcome?
(3)If there is a need for orders, then who should be appointed, what functions do they need to fulfil, and what term should the orders be made for prior to review by the Tribunal?
Medical and Allied Health professional reports
At the first hearing, the following reports were before the Tribunal:
1)a service provider report of SF, Social Worker at RPH dated 15 May 2020;
2)a service provider report of NA, Social Worker at Fiona Stanley Hospital (FSH) dated 3 June 2020;
3)a medical report of Dr M of FSH dated 11 June 2020; and
4)an Occupational Therapy (OT) cognitive assessment by KB, OT at FSH dated 29 June 2020;
At the second hearing, the following additional report was before the Tribunal:
5)Clinical Neuropsychology Inpatient Assessment Summary of Dr CH, Clinical Neuropsychologist at FSH dated 9 July 2020
I will now deal with the contents of the reports.
Social worker report of 15 May 2020
SF's report refers to a three week acute admission at RPH followed by transfer to FSH for rehabilitation. She notes the family situation detailed above, and describes DG as lacking insight into his condition and the reasons for hospitalisation. She states he expressed a persistent desire to go home.
Social Worker report of 3 June 2020
NA's report describes persistent and significant disability in DG due to the traumatic brain injury. She details cognitive impairment requiring supervision for all activities of daily living (ADLs), mobility and communication. At the time of the report, her opinion was that DG could not live independently, and she noted that the marital separation, his inability to remember the separation and the existence of shared assets meant there would be a conflict of interest for VG to be appointed as administrator or guardian. She noted that a National Disability Insurance Scheme (NDIS) application had been made, and that an independent guardian and administrator would be needed for discharge planning.
Medical report of 11 June 2020
Dr M's report confirmed the diagnosis of acquired brain injury secondary to multiple intra-cranial haemorrhages and alcohol abuse. It described significant memory impairment, a lack of insight into his deficits, and concluded that he was incapable of making reasonable decisions in all domains.
OT report of 29 June 2020
The OT assessment described moderate impairment in forward visual memory and sequencing, and severe impairment in attention span impacting overall performance. She found DG had severe deficits in multiple digit calculations and complex problem solving tasks, despite prompting to check for errors and missed steps. She recommended formal neuropsychological assessment of capacity, while noting DG had clear difficulties with shortterm memory, working memory and sustained attention.
Oral submission by social worker at first hearing
At the first hearing, NA stated that DG had emerged from posttraumatic amnesia on 3 June 2020 (46 days post injury) and that he had progressed significantly since the first two reports detailed above. She noted that he had required a lot of support on arrival, and that the OT report showed that he still needed support with prompting and sequencing for ADLs. She reported that DG was still adamant he wanted to go home.
In view of the advice that DG was improving and that the treating team considered formal capacity testing by neuropsychology was required, the matter was adjourned until that had been completed.
Neuropsychology report of 9 July 2020
At the second hearing, Dr CH's neuropsychology assessment was available. This provided details of extensive formal cognitive testing, which found he had average performance in many areas, including sustained attention and judgments in relation to health and safety in life. It did however find he had cognitive slowing with impairments in the areas of attention (visual and verbal distractibility and multi-tasking) and aspects of verbal memory (immediate and delayed recall).
Dr CH's report detailed a semi-structured interview with DG exploring the issues regarding his marital breakdown, health and history of alcohol abuse. It states DG recalled that VG wishes to separate, but that he was evasive regarding his drinking habits and did not acknowledge that they were a contributor to his injury or the separation.
The report also states that DG had little insight into his cognitive difficulties, and that he did not understand the purpose of activities he was undertaking with hospital staff, although he was compliant with them.
DG was reported to be unsure of what rent would cost if he were no longer able to live in his own home, and that his idea of the cost of basic groceries was mostly inaccurate. He indicated that his wife handled finances and shopping. He showed some insight that he and his wife could not support two households on their combined income.
Dr CH concluded that DG's wish to return home to his 'property, animals and family' was reasonable if he had support for complex meal preparation and community access.
In summary, the report concluded that while DG's current deficits may impact novel complex decisionmaking, it was not anticipated that they would interfere with his ability to make less complex decisions in relation to familiar aspects of everyday life.
While noting the intention of VG to separate from DG and leave the home should he be discharged there, Dr CH felt that support via the NDIS would be sufficient to allow DG to live there independently. It was noted that although DG did not have insight into the need for supports, he was prepared to accept them, and for that reason, Dr CH felt he was not in need of a guardian.
Dr CH supported the appointment of a limited guardian for legal matters, as he acknowledged DG would be vulnerable as a result of his cognitive impairments and lack of insight during the complexity of a marital separation. It was also felt that memory difficulties impacted DG's ability to manage his own finances in both everyday living and the separation, and so the appointment of a plenary administrator was supported.
Dr CH noted that other members of the team had in the past expressed the opinion that a broader guardianship order might be in DG's best interests. He also acknowledged there was risk in a less restrictive approach as recommended in the report, due to the potential for return to significant alcohol use, and that it would be prudent to inform service and support providers of this risk and to advise them to refer back to his service, or alert DG’s General Practitioner and rehabilitation physician should they be concerned.
Oral submissions at the second hearing
Dr M explained that although NDIS funding and services were not yet in place, an interim hospital package would be in place to provide second daily visits to assist with meal preparation for DG. He indicated that the hospital planned to discharge DG to his home the following day.
In response to questioning, Dr M indicated that no home visit or assessment had occurred because DG was independent with his ADLs in the hospital, and there was no current concern regarding his mobility.
Dr M indicated that no action had been taken in regard to minimising the risk of a return to alcohol use on discharge by DG, on the basis that he had capacity. No referral had been made to a drug and alcohol counsellor or attempts made to link DG in with community supports for sobriety. Dr M acknowledged that DG would be highly vulnerable to falling if he resumed drinking alcohol in the context of his traumatic brain injury.
ZG expressed her concern regarding the discharge plan, particularly noting that DG did not recall the layout of the house in conversation with her, and that she was concerned he would fall and injure himself again if at home alone.
VG reiterated this concern, noting the risk that DG would access alcohol again on discharge. She described a bottle shop in easy walking distance of their home, her unsuccessful attempts to get DG to moderate or cease drinking over many years, her fear throughout that time that she would come home from work and find him injured, and the fact that the pets and landscaping at the home plus a shower over the bath presented many hazards. She confirmed that she would leave the home with her son if DG is discharged there, in keeping with her stated intent to separate which preceded DG's injury by some months. She noted that she has been the financial support for DG over many years, and that their joint accounts have only one dollar in them. She agreed that the mortgage will not be able to be covered if she is needing to pay for accommodation elsewhere, and confirmed that DG has no income. She also confirmed that she has done all the shopping and bill paying for many years, and organised and transported DG to appointments.
NA explained that an application on DG's behalf for disability support pension had been declined, and that an application for job seeker payment had now been made but not yet approved. She and Dr M acknowledged that they and Dr CH were not aware of the details of DG's financial situation when formulating the discharge plan.
AC, from OPA, noted that the neuropsychology assessment was done in the structured, supportive environment of the hospital, when DG had not had access to alcohol for some months.
He expressed concern that DG showed no knowledge of his own financial situation, and would have no income, and no money to buy food or pay the mortgage.
DG repeatedly expressed in his oral evidence that he 'understood everything'. He stated that he and VG had been a good team, and that he thought they could work everything out. He expressed the wish to just be able to go home and be with his family. In the face of the information above, he showed no insight into the reality that his proposed discharge the following day would mean that he was at home, alone, with no money and no food. In relation to alcohol, he said he would have to make some changes. He was unable to give any details regarding what those changes would be, or how he would seek to manage, reiterating that he and VG were a good team and would work something out.
AC recommended that the Public Advocate should be appointed as the limited guardian for accommodation, services, guardian ad litem and next friend, due to the evidence that DG's ability to self-advocate was very limited, and reflected by DG's lack of insight into the realities of his situation should the proposed discharge go ahead. AC supported the hospital's suggestion that the Public Trustee should be appointed as the plenary administrator for DG.
DG's capacity
Noting that under s 4 of the GA Act the Tribunal's primary concern is the best interests of any represented person, and that every person is presumed to be capable of looking after his own health and safety, managing his own affairs, and making reasonable judgments in respect of both his person and his estate, I find that overall the evidence detailed above rebuts the presumption of capacity in DG's case for the following reasons.
Although there is evidence from the reports over time of marked improvement in DG's ability to perform ADLs of personal hygiene and simple meal (snack) preparation in the supported environment of the hospital, even Dr CH's report acknowledges that DG's current deficits leave him vulnerable in managing novel or complex decision-making, and only found that Dr CH would not expect them to interfere 'with making less complex decisions in relation to familiar aspects of everyday life'. (emphasis added)
The evidence of VG makes it clear that DG is not familiar with shopping for food, paying bills or getting to appointments. Dr M confirmed that no home visit or supervised assessment of DG's ability to manage within that setting had been performed.
All reports include some reference to DG lacking insight into his deficits, although noting that he is happy to accept the recommendations of the team. During both hearings DG consistently maintained his wish to return home and his belief that he and VG can work things out, as reported by professionals throughout his long hospital admission. DG was happy to accept the discharge plan of the hospital and all proposed variations of support in the form of orders that were discussed during both hearings.
It was uncontentious that DG had suffered a traumatic brain injury in the context of intoxication, and that he had a history of significant alcohol use. It was also uncontentious that he is still suffering cognitive impairment as a result of his injury, which affects his capacity for reasonable judgment in regard to his estate. All reports also support the finding that his capacity for making reasonable judgments in respect to his person is affected to some extent, the divergence is in terms of which aspects of personal decision-making are affected to the extent where there is the need for a formally appointed guardian, and where less restrictive alternatives might suffice.
In Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 at [23]-[25], McDougall J observed in regard to capacity:
[23]There is a presumption of capacity, whereby an adult 'is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted': see Butler-Sloss LJ in Re MB (An Adult: Medical Treatment) [1997] 2 FCR 541 at 553; [1997] 2 FLR 426 at 436.
[24]In this context, it is necessary to bear in mind that there is no sharp dichotomy between capacity on the one hand and want of capacity on the other. There is a scale, running from capacity at one end through reduced capacity to lack of capacity at the other. In assessing whether a person has capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision, as Lord Donaldson pointed out in Re T (Adult: Refusal of Treatment) (at 113). The capacity required to make a contract to buy a cup of coffee may be present where the capacity to decide to give away one's fortune is not.
[25]As ButlerSloss LJ said in Re MB (An Adult: Medical Treatment) (at 553554; 436437), in deciding whether a person has capacity to make a particular decision, the ultimate question is whether that person suffers from some impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. That will occur if the person:
(1)is unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision; or
(2)is unable to use and weigh the information as part of the process of making the decision.
In Szozda v Szozda [2010] NSWSC 804 (at [27]) Barrett J says in reference to capacity:
… The relevant general law principles are often associated with the decision of the High Court in Gibbons v Wright [1954] HCA 17 ; (1954) 91 CLR 423 and were recently explained by Campbell JA (with whom Basten JA and Handley A-JA agreed) in Guthrie v Spence [2009] NSWCA 369 at [174]:
Under the general law there is no single test for capacity to perform legally valid acts rather, capacity is decided, in relation to each particular piece of business transacted, by reference to whether the person has sufficient mental ability 'to be capable of understanding the general nature of what he is doing by his participation', and concerning any legal instrument 'is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained'[.]
I think it is important to emphasise the fact that compliance is not the same as informed consent, and does not inherently demonstrate the capacity for reasonable judgment. In MC [2004] WAGAB 5 (at [30][32]) the Guardianship and Administration Board noted:
30The Board heard at length from Dr Krishnan at the hearing on 24 September 2004 as to his views about the capacity of MC and the way the decision about contraception might be handled. Dr Krishnan in his evidence stated that the capacity of MC frequently fluctuates. He considered that she understands that the purpose of the contraceptive pill is so that she won't have a baby but he did not think that she could understand the positives and the negatives of actually having a baby. Dr Krishnan considered that it was not in her best interest to become pregnant. Essentially, he assessed her as capable when she was compliant in taking the contraceptives but did not consider that she should be allowed to refuse contraceptives. He was comfortable that she could make a choice at a basic level about which contraceptive she wanted to take, although she would not be able to evaluate the side effects.
31The question that the Board must address is whether MC has the capacity to understand the nature and consequences of taking contraceptives. The test for capacity in this case must include the ability to appreciate the consequences of pregnancy and having a child if she does not take contraceptives, not simply the method of contraception used. We also stress that the test of capacity must operate so that if a person is capable, they can make an informed decision either to take contraceptives or to refuse them. If a person has the capacity to give a legal informed consent to treatment, they must also have capacity to refuse that treatment.
32It became clear to the Board that the evidence of the medical practitioners in this case and the assessment by Ms Pedlow were addressing a different question, that is whether MC has the capacity to choose between contraceptives. That evidence in our view did not support the conclusion that MC has the capacity to decide whether or not to take contraceptives. We believe that there was a consensus at the hearing that as a result of her mental disability, MC is not able to understand or evaluate either the side effects or the larger consequences of the decision to take or refuse contraceptives. Accordingly, on this basis MC is in need of a guardian[.]
(Emphasis added)
DG's failure to acknowledge any of the potential serious and foreseeable risks of being discharged home alone after a hospitalisation for a significant traumatic brain injury with no income and no ability to pay for food or his mortgage establishes significant concern that he does not have capacity to make reasonable decisions in his own best interests in regard to accommodation, support services or financial arrangements as they relate to his current circumstances.
I am satisfied on the balance of the evidence that DG is in need of oversight, care or control in the interests of his own health and safety. It was uncontentious that DG is unable to make reasonable judgments in respect of matters relating to all of his estate.
The need for orders
Section 4(4) of the GA Act states:
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 the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
Dr CH's report stated that DG had agreed with his treating team that he could be discharged home, and that although 'There is some evidence … that indicates that he does not feel he needs support for managing his medication or preparing complex meals, he has informed us he is fully accepting of support services for these'.
In relation to both the accommodation and services decisions, Dr CH says in his report 'Regardless of whether or not [DG] has capacity to make this decision for himself, a Guardian is, therefore, in our opinion, not required to assist'. Additionally, the team felt there were no near or medium-term medical decisions to be made, so there was no need for a Guardian, although no comment was made regarding a view as to whether or not DG had capacity to make such a decision, should it arise.
Noting that the treating team had arrived at their discharge plan without being aware of the full vulnerability DG faced (despite ongoing liaison with VG throughout the 2 months DG was being treated at the SRS), I consider that DG's lack of insight into his circumstances and his disability, and the fact that clear and repeated explanations of these during the second hearing did not lead to any change in his demeanour or expectation that he would return home to live with his family, demonstrated his vulnerability, and incapacity to make reasonable judgments on this topic in his own best interest.
In LGW [2004] WAGAB 4, the Guardianship and Administration Board discussed the issue of the 'need' for a guardian including at [4][7]:
4.In order for the Board to make a guardianship order, it must be demonstrated that there is a need for someone to be vested with the legal status of guardian to act on behalf of the represented person. The Board's determination in a particular case as to whether a person is 'in need of a guardian' is therefore a question which must be decided on the facts of that case.
5.Need is most clearly demonstrated where there is a decision which requires a substitute decision-maker with legal authority to make the decision on behalf of the person. However, in an appropriate case the need for a legal guardian may involve other functions within the compass of parental responsibility. The concept of need in s 43(1)(c) is not restricted to the need to make an "authoritative decision".
…
7.The Board must be satisfied that a role exists for a legally appointed guardian, that the appointment of a legal guardian is necessary and that 'the needs of the person could [not] be met by other means less restrictive of the person's freedom of decision and action'.
Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) (MM) (pages 329330) states:
[It] is apparent that where the provisions of s 43 (1)(b) are met it will usually follow that there will be a need for a guardian as provided in s 43(1)(c). The same can also be said in relation to the need for an administrator under 64(1)(b). This is so because unless a guardian or administrator is appointed there would in most cases be no one with legal authority to make decisions in respect of the represented person. There would in other words be a legal vacuum. Therefore, the 'need' in those sections in our view means the 'need' for someone to have formal legal authority to make decisions on behalf of the represented person in order to resolve issues relating to the personal affairs of the represented person or to manage and protect the financial estate.
However, while the need for a guardian or an administrator will usually follow from the existence of disability, we stress that a finding under par (b) is not exactly the same as a finding under par (c). The mere fact that a person has a disability that makes him unable to make reasonable decisions does not automatically mean the person is 'in need of a guardian' or 'in need of an administrator'. Such a need might not exist under s 43(1)(c), for example, if there is some other statutory provision which gives legal authority for the decision-making in question or if there is in fact no live issue or foreseeable conflict in relation to the personal affairs of the represented person so as to give rise to the need for this Board to intervene in the life of the represented person by making a formal order. Similarly, there may be no need for an administrator under s 64(1)(b), if the person has no assets that require administration, or if the assets are managed under some other legal authority such as an enduring power of attorney, a formal trust or court order.
We also agree with Underwood J that the phrase 'needs of the person' as it appears in 4(d) of our Act involves a different test. The needs there described are of wide import and encompass all the wants and necessaries of the person. Thus, there is a two-step process. The Board must first determine whether there is a need for a guardian in s 43 (1(c) (or a need for an administrator in s 64(1)(b)) and then move on to the issue whether, notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of that person can nevertheless be met under informal arrangements which are less restrictive of the person's freedom of decision and action. The first step is the question whether the basic requirements for making an order have been satisfied, that is, whether an order could be made on the facts of the particular case. The second step under s 4(2)(d) is the question whether there is any alternative to making an order, that is, that an order should be made. For example, a person may be unable to manage his affairs and there may be no one with formal authority to manage his affairs for him, but his assets may be in a joint account with his spouse who can access his funds and apply them for his benefit. If there is no concern about that arrangement, the Board may be satisfied that his 'needs' can be met without the formal appointment of an administrator. … The Board must be satisfied on the facts and evidence in each individual case that the interests of the person are adequately protected by the informal arrangements[.]
(Original emphasis)
In DG's case, there are a number of live issues and foreseeable conflicts for which decisions need to be made, and where the overall effect of the evidence, particularly the oral submissions by VG, ZG and DG, demonstrate the need for the appointment of a substitute decisionmaker. I am not satisfied on the evidence of the written reports or the oral submissions of the care team and DG that the proposed informal arrangements adequately protect his interests. Having second daily home visits with the possibility of a service provider raising concerns that current supports are insufficient with DG's general practitioner or rehabilitation physician in circumstances where he is being discharged home alone with no income or savings, and where it is known that he is not familiar with many aspects of daily household management (including shopping for food) appears manifestly unsafe. I am persuaded by the concerns of VG and ZG regarding the risks to DG's safety and welfare, and those of the investigator from OPA, that DG is in need of a guardian not only for legal matters, but also for decisions regarding accommodation and services.
I note that Dr CH's report suggests that because DG says he will accept support services (despite having no insight into his deficits or the need for support) he is not in need of a guardian for services decisions. DG's services are to be provided under the NDIS, which would require him to engage constructively in the planning process, and make decisions regarding which services he needs, which will be sub-optimal in circumstances where he has no insight. In addition, it is noted that novel, complex decision-making is challenging for DG due to the after effects of his acquired brain injury, and engaging with the NDIS will fall into this category.
In addition, complex decision-making around accommodation is a live issue for DG, as he and VG both acknowledged that their separation means the mortgage on the current family home cannot be met, and DG faces the challenge of identifying, securing and funding alternative housing in the near future.
AC submitted that DG's ability to self-advocate was very limited, and this was reflected in his lack of insight into the realities of the proposed discharge.
I find that DG is in need of a guardian for accommodation, services, and legal matters relating to his separation from VG.
Who should be appointed?
In DG's case, there is no alternative to the appointment of the independent, third party guardian and administrator, as the marital separation means that no family member can be found suitable due to possible conflicts of interest.
I note that there is no suggestion that VG or ZG have acted in any way other than to try to further DG's best interests in regard to the application and the hearing. They have in fact consistently advocated for his welfare.
AC supported the appointment of the Public Advocate as guardian for accommodation, services and next friend/guardian ad litem, with the Public Trustee as the plenary administrator for an initial term of two years. The term suggested was related to potential duration of Family Court proceedings, with the hope that a more limited order may be appropriate thereafter.
Conclusion
For these reasons, I was satisfied that it was in DG's best interests to make the following orders, and that they were in the least restrictive terms that would adequately meet his needs, given the circumstances of his case. I note that DG indicated that he was quite happy for these orders to be made.
Orders
The Tribunal declares that the represented person, DG is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)in need of an administrator of his estate;
(c)in need of oversight, care or control in the interests of his own health and safety; and
(d)in need of a guardian.
The Tribunal orders:
Administration
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administration order is to be reviewed by 13 July 2022.
Guardianship
3.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)To determine the services to which the represented person should have access;
(d)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
(e)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.
4.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.
5.The guardianship order is to be reviewed by 13 July 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
10 AUGUST 2020
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