DM - [2012] WASAT 161

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: DM [2012] WASAT 161

MEMBER: MS F CHILD (MEMBER)

HEARD: 8 DECEMBER 2011, 1 MARCH 2012 AND 15 MAY 2012

DELIVERED : 31 JULY 2012

FILE NO/S: GAA 3181 of 2011

BETWEEN: DM
Represented person

Catchwords:

Guardianship and administration Periodic review of guardianship order Represented person with acquired brain injury Static condition Continuing need for the appointment of a guardian Appointment of the Public Advocate jointly with the sister of the represented person as limited guardians

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43(1), s 44, s 44(5), s 84, Div 3, Pt 5

Result:

Guardianship order made

Category: B

Representation:

Counsel:

Represented person : Mr C Eastwood

Solicitors:

Represented person : Eastwood Sweeney Law

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On periodic review of a guardianship order made for a man with an acquired brain injury, the Tribunal appointed the Public Advocate jointly with his sister as limited guardians.
The man did not want a guardian appointed, but his preference was that his sister, rather than the Public Advocate, be appointed if an order was made.
The professional evidence before the Tribunal confirmed that, as a consequence of his brain injury, the man's decisionmaking about personal matters was impaired. Although the Tribunal accepted that the man managed, for the most part, independently in his daily life, it found that he had little insight into the impact of his disabilities and impaired judgment in relation to complex decisions, including health matters, his need for services and his need for oversight in the interests of his health and safety.
The Public Trustee managed his financial affairs as the court appointed trustee, and was in the process of building a purposebuilt home for him with some of the funds received in compensation for his injuries. Although there had been a history of difficulty with finding appropriate accommodation for the man, the Tribunal accepted submissions that, while not ideal, his accommodation appeared settled until the completion of his property. However, given the potential for his tenancy to break down, the Tribunal found there would be a need for a guardian to make decisions about where he was to live. The Tribunal determined that there was also the need for a guardian to accept services and make treatment decisions on his behalf.
The Tribunal determined that a joint appointment of the man's sister, with the Public Advocate for a period, was in the best interests of the man. It considered that such an appointment may improve communication between the man and the guardian, which had previously been poor due to the unwillingness of the represented person to engage with the guardian. Additionally, the joint appointment would contribute expertise and guidance from the Public Advocate's office, and would provide information about the appropriate services to be engaged.

The current review

These written reasons are of a decision made following a periodic review of a guardianship order, dated 10 December 2009, by which the Public Advocate was appointed limited guardian of the represented person.
The review was conducted over three hearings in December 2011 (first hearing), March 2012 (second hearing) and May 2012 (final hearing). The represented person and his solicitor attended all three hearings, as did the representative of the Public Advocate and the case manager. The represented person's mother attended the first hearing and his sister attended the first and the final hearings.
The solicitor acting for the represented person sought an adjournment of the first hearing so that a further capacity assessment of the represented person by a neuropsychologist could be conducted. His submission was that the evidence before the Tribunal regarding the capacity of the represented person was equivocal, and further assessment was required.
Prior to the second hearing in March 2012, the Tribunal received the report of the assessment of the represented person by a specialist neuropsychologist, Dr EV.
At the second hearing, the Tribunal was advised that the sister of the represented person was proposed for appointment as guardian in the event any order was made. As the sister did not attend the hearing, the review was again adjourned so that the sister could attend to speak to her proposal. Further, the Public Advocate was directed to investigate the proposal and report on the suitability of the sister for appointment. The Tribunal also requested that expert reports of the personal needs assessment of the represented person obtained prior to settlement of his personal injuries claim be provided by the Public Trustee. The Tribunal sought this further information to ascertain the services which had been identified as needed by the represented person.
Following the hearing, the solicitor for the represented person provided further written submissions, which were received by the Tribunal on 29 May 2012. The matter was thereafter reserved.

Background and history of orders

The represented person sustained significant multiple injuries in a work accident in March 1999, which caused paraplegia and an acquired brain injury (ABI). He has been subject to orders made under the Guardianship and Administration Act 1990 (WA) (GA Act) since 1999. At the time of the original order, in October 1999, he had been an inpatient at Shenton Park Rehabilitation Centre for seven months, and was discharged to the Quadriplegic Centre. The reports from that time note that, as a result of his traumatic brain injury, he had 'noticeable cognitive impairments', 'impulsivity, poor planning and problem solving skills' and difficulty with his memory.
Two of the represented person's sisters were originally appointed as joint limited administrators of his estate in February 2000 to operate a bank account and to invest a lump sum worker's compensation payment on his behalf.
Following his discharge from the Quadriplegic Centre the represented person lived for a time with his parents. However, the situation broke down, reportedly because of the behaviour of the represented person. The Public Advocate was appointed guardian of the represented person in 2000, following an application made by a social worker from the State Head Injury Unit. The order made included the functions to decide where and with whom the represented person was to live, to consent to treatment or health care and to facilitate the represented person's access to services which would support him living independently.
The appointment of the Public Trustee as administrator of the estate was made in November 2001, following an application by the represented person for review of the administration and guardianship orders. On review, the appointment of his sisters as administrators of his estate was revoked and the Public Trustee was appointed plenary administrator. The appointment of the Public Advocate as guardian was confirmed.
Despite allegations made by the represented person, an investigation by the Public Trustee found that there had been no misappropriation of funds by his sister, one of the former administrators. The represented person sought further review of the orders in 2003 and 2004. Correspondence on the file from that time records that legal aid was granted to the represented person to investigate his proposal that the orders be revoked. However, following inspection of the medical reports, Legal Aid withdrew representation. The orders were later confirmed on review.
On an application for a further review by the represented person, the Full Board of the Guardianship and Administration Board confirmed the orders in December 2004 and set a review of the orders made by 2009.
On review in December 2009, the guardianship order was confirmed, with review of that order by 10 December 2011.
The administration order was revoked in December 2009. This followed a submission by the Public Trustee that an administration order was no longer needed, as all of the represented person's finances were now managed by the Public Trustee as trustee for the funds paid in settlement of his personal injuries claim.
At the time of the present review of the guardianship order, the represented person is living in private rental accommodation, paying a high rent, and the landlord has made some efforts to recover the property including, reportedly, not paying water rates in an effort to have the water to the property turned off. The represented person is reported to have no other accommodation options at present. The Public Trustee has signed a contract for the building of a purposebuilt home for the represented person which will take many months to complete, there having already been considerable delays.
The represented person uses a motorised wheelchair and accesses the community by public transport. The represented person states he attends a number of doctors, including specialist urologists, and that the doctors he attends do not know he has a guardian. The represented person suffers diabetes and epilepsy. At the time of the hearings, he is receiving no direct services, although a case management service has been engaged to provide assistance with a range of matters from time to time.

Legislation

Section 43(1) of the GA Act provides that, where the Tribunal is satisfied that a person:
…
(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.
Pursuant to s 44 of the GA Act to appoint a guardian, the Tribunal must be satisfied that any individual appointed solely or jointly:
…
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible -
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
…
The GA Act further provides at s 44(5) that:
Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
Section 4 of the GA Act establishes principles which must be observed by the Tribunal in any proceeding under the GA Act. The section provides:
…
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person …
(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.

Evidence and material before the Tribunal

The report from Dr EV, a neuropsychologist, dated 15 February 2012, notes that the represented person suffered severe injuries in an industrial accident, resulting in spinal damage, paraplegia and an ABI. The report also records that he was diagnosed in 2000 with an organic personality disorder secondary to the ABI. The report notes:
[the represented person] has undergone several previous neuropsychological assessments. I have viewed a number of these reports. Across these reports there are consistent statements regarding deficits within the following domains:
•working memory;
•processing speed[;]
•higher level executive functions[;]
•memory (particularly for verbal material)[; and]
•self-awareness and insight.
The report notes that the represented person considers himself independent in all acts of daily living and that he does not require any inhome services or therapy support. The report notes that 'he described minimal contact with his family and few regular social connections'.
The report notes, on assessment, that the represented person:
generated generally appropriate responses to simple daytoday problems including basic household maintenance and safety, dealing with an emergency and arranging transport. Across a range of measures and scenarios, [the represented person] exhibited reduced recall of the information relevant to more complex lifestyle and health decisions.
Dr EV reports that:
whilst [the represented person] was apparently able to evidence a clear choice for such decisions, he had enormous difficulty in providing sufficient rationale for his choices, and in fully appreciating potential consequences.
The report notes:
… [the represented person] shows reduced cognitive proficiency (slowed processing, limited working memory), marked executive dysfunction and a limited capacity to form new memories. This pattern of results is typical of that seen after severe right frontotemporal head injury. Moreover, the findings similar to those outlined within the three previous neuropsychological assessment reports, suggesting stability in his cognitive functioning.
… [T]he current findings suggest that, at present, [the represented person] would appear capable of managing lowerlevel, daytoday lifestyle decisions. However, with more complex decisions, where the choices are ambiguous, he is likely to struggle. Specifically the findings would suggest the following:
1.[the represented person] would have the cognitive capacity to understand information relevant to decisions around accommodation, treatment and health care, and services[;]; and
2.)he would be able to communicate a clear, and consistent choice when presented with alternatives, however[;]
3.he would have trouble retaining all of the information necessary for complex decisions[;]
4.he would have a difficulty weighingup detailed information, identifying alternative choices, and reasoning through ambiguous decisions[;]
5.he may have some difficulty in appreciating the full consequences of his choice[;] and
6.he has limited insight into the impact of his [traumatic brain injury] on both his cognitive functioning and his decision-making capacity.
The report notes the represented person was able to give 'a fairly cursory account of his current health; outlining ongoing monitoring of blood sugar levels and paraplegia'. He indicated he was seeking advice about treatment of a urethral stricture. The reports note that he had not raised this with his guardian.
The report of the case manager, dated 29 November 2011, notes that the represented person moved into independent accommodation in February 2010, and initially carers went in to assist with domestic chores. However, the represented person is reported to have cancelled this service as he believed that 'all the carers were stealing from him'. The report notes that the represented person is independent with his domestic chores, shopping, meal preparation and activities of daily living. He is reported to manage his medications for his diabetes and epilepsy himself. From time to time he calls on the case manager to assist him with particular matters, such as arrangements for carers while travelling overseas or in relation to accommodation.
The report notes the represented person has very limited contact with anyone in his family, other than one brother who is a flyin flyout worker and who stays over occasionally.
It is reported that the represented person acknowledges he does not like to see people on a regular basis as he becomes convinced that they are stealing from him. The represented person confirmed in the hearing that he believed at least one carer had stolen a piece of kitchen equipment. The case manager reports that the represented person resents having to pay professional people for their time and would rather not receive any service if it means he has to pay for it.
The case manager reports that the represented person expresses the view that doctors do not like him (T:28, 08.12.11), and this report is supported by the Public Advocate. In the case manager's view, this impacts on how the represented person is able to engage with health professionals. She also reports on her attempts to secure accommodation for the represented person suitable for his needs when he was threatened with a notice to quit his present accommodation. Her view is that the represented person unreasonably refused the only available accessible accommodation which she believed was ideal for him. She reports that when he changed his mind soon after and wanted to move to the property, the property had been rented to someone else. The represented person's own account of this incident varies, but, in essence, he considers his refusal of the property reasonable.
The case manager acknowledges the represented person's wish for independence, but states that he does not, or cannot, appreciate the risks he faces, given his disabilities. In the hearing, she gives the example of her attempts to arrange an assessment for advice about continence issues prior to the represented person travelling overseas. She states that the represented person refused. She asserts that the decision by the represented person had 'enormous' repercussions for him throughout his holiday and resulted in bowel accidents both on the aircraft and at the hotel. In the hearing, the represented person minimised the incidents. Another example given by the case manager was the hire of a spa by the represented person. The case manager asserts that the represented person would not agree to spend money on a therapist to assess if it was safe for him to have a spa. She reports that the represented person hired the spa himself and had difficulty getting out, although was eventually able to do so. The spa was reported to be a portable one without handles or a hoist, and the represented person confirmed in the hearing that he used a garden hose hung up over a pergola to transfer in and out of the spa (T:113, 15.05.12).

In response to the question of why there was no carer on site to monitor his safety while using the spa, he said 'I had absolutely no need of one. I mean I have got a bronze medallion in swimming. I don't know whether that counts for anything, but [I am] a fully competent able human being' (T:112, 15.05.12). He did not accept there were any risks associated with the use of the spa unsupervised. In the second hearing, the represented person advised that he wants to purchase a 'stand up chair power chair' at a cost of $25,000 or $30,000, which could be operated by him and would allow him to do weight bearing exercises. The represented person said that 'the man selling the chairs' (T:88, 01.03.12) would oversee the therapy, and he did not see why there should be an assessment by a physiotherapist. He questioned whether it was necessary to have someone independent of the salesperson advising whether the product was appropriate for him. He said he was not sure whether he had spoken to his doctor about the product. The representative of the Public Trustee confirmed that a professional assessment of the chair, and whether it was in the represented person's best interests, would be required before trialling it or purchasing it (T:89, 01.03.12).
At the final hearing, it was reported that an assessment of the chair had been conducted and the physiotherapist had approved the use of the chair by the represented person. The case manager stated she remains concerned about the unwillingness of the represented person to consider an assessment for this piece of equipment. She says '[the represented person] is very, very articulate, but … from where I stand, insight is a real problem with him and sometimes he is not making safe decisions' (T111, 15.05.12). The guardian confirms that it was at the insistence of the case manager that the assessment of the chair was conducted.
The case manager's report states that the represented person can manage his daytoday affairs, but requires assistance to manage complex matters. She says 'he will always be reluctant to accept advice and at times he will need someone in authority to make decisions on his behalf'. The report notes that the Public Trustee has no authority to liaise with health providers to ensure that the represented person's medical and health care needs are met. It recommends that consideration should be given to appointing a limited guardian to make decisions regarding the services to which the represented person should have access.
A report from a general practitioner, Dr JL, dated 2 November 2011, is also before the Tribunal. Dr JL reports that he has known the represented person for five years. He notes that the represented person has a 'static' condition, a 'chronic disability' and he is unsure whether he can make reasonable judgments about his personal health care or his living situation. He considers the represented person incapable of making reasonable judgments about his financial affairs and considers him unable to execute an enduring power of attorney.
A brief report, dated 14 May 2012 and handed up at the final hearing on 15 May 2012 from Dr VB from the same practice, states that the represented person has been a patient of the practice since 2006. The reports states that Dr VB has known the represented person since March 2011. She states 'to my knowledge he is able to make appropriate medical decisions by himself'.
A report dated 27 April 2007 by a case management service for the solicitors of the represented person for settlement of his personal injuries claim, indicates a number of services which would be required by the represented person into the future. Those services include:
•case management;
•advocacy;
•liaison with therapists;
•skin integrity checks;
•a multiskilled carer;
•monitoring of his diabetic diet;
•a leisure buddy for social interaction and behaviour management issues;
•a continence adviser;
•domestic support;
•ongoing counselling;
•occupational therapy; and
•access to a call out service.
At the time of the review, it appears that the represented person only has access to case management services on a call out basis because of his refusal of all other services.

Submissions of the represented person

The view of the represented person is that he does not need a guardian and that he is independent and able to make personal decisions regarding where he lives, his access to services and medical treatment for himself. He contends that he does not need the services proposed by the case manager, such as a physiotherapist review, skin integrity checks or continence advice.
Over the course of the proceedings, the solicitor for the represented person made a number of submissions which were later summarised in writing.
In relation to the issue of accommodation, the represented person is satisfied with his current accommodation and does not wish to move again prior to relocating to his purposebuilt property. It is submitted that there is no need for a guardian to make accommodation decisions, and it is said that this is consistent with the Public Trustee's view, given at the second hearing, that the represented person's tenancy is secure, that the landlord is not pressing for the represented person to leave and that the represented person could be expected to move to his new home within the next nine months.
In relation to provision of services, it is submitted that the represented person has managed with no regular therapy or inhome services and appears to manage, largely, on his own. It is submitted that there is no evidence that a guardian would be required to ensure provision of these services, should he need them.
In relation to medical care and appointments, it is submitted that the represented person has managed the making and attendance of his appointments, and advised the delegated guardian of those appointments after they had occurred.
In response to the delegated guardian and the case manager's submissions that the represented person requires oversight in respect of decisions relating to medical treatment because he did not properly communicate, the represented person's sister submitted that this was not symptomatic of the represented person's condition, but was rather a family trait.
It is submitted that the represented person had managed his own medical treatment effectively and sensibly, and it is argued that the represented person demonstrated 'a sophisticated awareness of the treatment options relating to the upcoming appointment with a urologist'. In respect of medical treatment, it is submitted that the report of Dr VB, dated 14 May 2012, be preferred to that of the report of the neuropsychologist, Dr EV, because it directly addresses the question of capacity regarding medical treatment.
The preference of the represented person is that no guardian be appointed and, if a guardian is to be appointed, that the represented person's sister, J, is preferred to the appointment of the Public Advocate.

The Public Advocate's submissions

The Public Advocate's submission is that the report of the clinical neuropsychologist supports the need for a limited guardianship order.
The Public Advocate submits that the sister of the represented person, J, is a suitable person for appointment, and that this would be a least restrictive alternative to the appointment of the Public Advocate as guardian of the represented person. The Public Advocate submits that the following orders be made:
That a guardian be appointed to:
1)make decisions about treatment and health care;
2)decide where and with whom the represented person should live;
3)determine what services the represented person requires.

Issues for determination on review of a guardianship order

The issues for determination by the Tribunal on review of a guardianship order are:
1)Is the represented person a person for whom a guardianship order may be made?
2)Is he in need of a guardian or are less restrictive alternatives available?
3)If a guardian is needed, who should be appointed in that role?
4)If an order is made when should it be reviewed?

Is the represented person a person for whom a guardianship order may be made?

Although it is submitted that the represented person makes his own decisions and manages his own personal affairs, the professional evidence before the Tribunal confirms that he has an ABI, cognitive impairments and an organic personality disorder. The report of Dr EV states that the effect of these is 'impaired memory', 'marked executive dysfunction', and 'difficulty reasoning through ambiguous choices and appreciating the full consequences of his choices'. Although it is submitted that the report of Dr VB should be preferred regarding the represented person's capacity to make decisions about his health care, this is not accepted. The report of the neuropsychologist is preferred to that of Dr VB. The represented person sought an adjournment for a specialist capacity assessment. That specialist assessment was undertaken by Dr EV and her detailed report is before the Tribunal. Her opinion regarding his impaired decisionmaking is based on testing of the represented person, to which he readily submitted, and provides evidence of the basis for that opinion; Dr VB's brief report does not. Dr EV's report is also consistent with the previous professional opinion before the Tribunal, the views of the guardian and case manager and the sister of the represented person. This evidence and the represented person's own statements at the hearing, confirm that he does not have insight into the implications of his disabilities.
While it is acknowledged the represented person is independent in many aspects of his daily living, the Tribunal accepts that there is a need for monitoring of his health and multiple disabilities. Acceptance of some services would provide monitoring and may decrease the risks associated with living alone, in the context of his multiple disabilities.
The represented person minimises the effects of his physical disabilities and cognitive impairments and the need for assistance. This is evident in his refusal of continence advice before his overseas trip, his refusal of specialist advice about the use of the stand up chair and his refusal of assistance and supervision in the use of the spa. It is clear in the presentation of the represented person in the hearing that he does not accept that there are risks to his health and safety because of his physical disabilities, or that these risks could be reduced with assistance and services.
The Tribunal accepts the contention of the case manager, that the represented person's refusal of services and poor communication may be as a result of the paranoid beliefs he holds, as identified in the material before the Tribunal, or his wish not to expend funds on these services, rather than an assertion of his independence.
The Tribunal finds that his lack of recognition of the risks, his unwillingness to accept services or communicate effectively with health professionals and the guardian about these issues and his physical health problems, puts him at risk of deterioration in his health, preventable injury or even death.
Based on the evidence of the neuropsychologist, the case manager and that of the represented person himself, the Tribunal finds that the represented person is not able to look after his own health and safety, not able to make reasonable judgements about his person and that he is in need of oversight and care in the interests of his own health and safety.

Is the represented person in need of a guardian or are less restrictive alternatives available to meet his needs?

The report of Dr EV identifies the lack of appreciation of the impact of the represented person's cognitive impairments on his decisionmaking. The represented person does not accept, despite the consistent professional opinion, that he needs any form of assistance with decisionmaking. In the hearing he did not accept that he needed advice regarding services, therapy equipment or medical treatment.
It is submitted, on his behalf, that his sister could play a role in his life which would provide the necessary oversight without the need for a formal appointment. The Tribunal does not accept this submission. The represented person has not cooperated with the guardian and reportedly does not consistently share information with his family, the case manager or with the guardian. This was apparent in the first hearing when family members learnt, for the first time, of the option to move to other accommodation. Equally, the guardian had not been aware of the sister's contact with the represented person and is not advised consistently of medical appointments. This, and the refusal of the represented person to acknowledge the impact of his impairments, means that, in the Tribunal's view, formal authority is required. Without the formal authority, informal arrangements would rely on the represented person's understanding of the need for assistance and on his cooperation. This has not been in evidence.
The represented person has complex health issues. In addition to the catastrophic injuries sustained in the work accident, he has diabetes and epilepsy, and his sister reports that results from bone scans indicate he has a precondition to osteoporosis. It is further reported that he requires regular colonoscopies and is also under the care of a urologist. These conditions are complex and may involve treatment decisions that will be beyond the represented person, given the deficits identified in the neuropsychological reports. The statements of the represented person, in relation to the purchase and use of a 'stand up chair' without independent assessment to assess suitability of this equipment to ensure his safety, support this finding. The Tribunal therefore considers that he is in need of a guardian to make treatment decisions on his behalf.
The represented person also needs a guardian to determine the services to which he has access. The report of the represented person's needs, produced prior to the settlement of his personal injuries claim, identified a range of services which would be required by him into the future which arose out of his injuries. Although prepared some years ago and for a different purpose, the Tribunal is satisfied that the report identifies the range of services to which the represented person should have access. Since more recent reports indicate his conditions are static, it is more likely than not that these services are still required by the represented person. In support of this, the case manager's evidence confirms that services are still required.
The Tribunal is not persuaded that there is no need for the services or oversight of the represented person on the basis that he has not accessed services in the recent past, or, in his own words, that he is 'still alive' (T:133, 15.05.12).
The Tribunal has found that the represented person is in need of oversight in the interests of his health and safety. His resistance to health care assessments, such as skin integrity checks and continence advice as suggested by the case manager, and his refusal to cooperate with the guardian or with services does not obviate this need. The difficulty in delivering services to the represented person is acknowledged and reinforces his vulnerability as a result of his impaired decisionmaking.
The Tribunal does not accept the submission that decisionmaking regarding accommodation is not required. The represented person is a tenant at will in a property where the owner has sought to recover the property for his own use, and it is only through the willingness of the Public Trustee to meet a level of rent designed to force the represented person from the property that he has been able to remain there. Although it is accepted that the building of his purposebuilt property is underway, the risk of further delays in building may create a need for a change in accommodation. Such a decision would be a complex one, given the particular accommodation needs of the represented person.

Who should be appointed as guardian?

Although, when guardianship was discussed at the first hearing in December 2011, the sister said that the represented person 'wouldn't want any of us looking after that, so it is best someone else does' (T:18, 08.12.11), by the second hearing in March 2012, the represented person had asked her, and she had consented to her appointment as guardian. The sister said that she and the represented person were 'not close, close' (T:122, 15.05.12), and her mother visited him 'every three months' and that she '[went] there then as well' (T:121, 15.05.12). By the time of the final hearing, she had spoken to the guardian about the role. She said she would need 'a guideline of what exactly is required' (T:131, 15.05.12). She acknowledged the represented person's independence but said '[his] logic is not 100 percent' (T:131, 15.05.12). In relation to the role of decisionmaker, she said 'I can say no to him, but obviously there will be arguments, but maybe because I have had more years experience, he could see … my point of view instead of just his' (T131, 15.05.12).
The sister of the represented person appears committed to the best interests of the represented person. Because of her working background, she describes herself as passionate about health issues. Although she describes their relationship as not close and their family as 'not the best communicators' (T:127, 15.05.12), she spoke freely and directly with the represented person during the hearings she attended. The Tribunal finds that she is compatible with the represented person. Her ability to work with the Public Trustee as the manager of the finances of the represented person has not been tested, but there is no reason to think she would not be able to work effectively, as required, with the Public Trustee and the Public Advocate.
From her statements in the hearing, it appears that the represented person's sister recognises and acknowledges both the represented person's desire for independence and autonomy, and that his decisionmaking can be impaired. This recognition is central to best interests decisionmaking for him.
Although his sister is suitable for appointment as his guardian, the Tribunal considers that a joint appointment of the Public Advocate and the sister is in the best interests of the represented person. This is so because of a number of factors: the complexity of the represented person's situation, including his health and care needs; his lack of insight into his impairments and his lack of appreciation of the risks he faces; the inexperience of the sister in dealing with the complex needs of the represented person; and the poor communication of the represented person with the Public Advocate's delegated guardian.
The appointment of his sister as his guardian is the expressed wish of the represented person, although it is acknowledged that he believes he does not need a guardian. He prefers his sister to the Public Advocate. A joint appointment may bring the experience and expertise available in the Office of the Public Advocate to the complex needs of the represented person, and provide an opportunity for improved communication made possible through the appointment of the represented person's preferred choice of his sister as his guardian. This may lead to greater acceptance of assistance and support by the represented person, which will lead to a reduction in the risks he faces.

Length of the order

The professional reports note stability in the represented person's condition over time. He is now many years post head injury. The reports state, and the Tribunal accepts, that his condition is now static. For the reasons given, the represented person needs a guardian to make complex health care and services decisions on his behalf, and to ensure that there is oversight and care in the interest of his health and safety. It is likely that these needs will persist into the future, and so the order is made for the maximum period of five years. However, the current joint appointment may not be required for that period and it is open to the guardians to determine when, and if, an early review is sought.

Orders

On review under s 84 of the Guardianship and Administration Act1990 (WA) of an order dated 10 December 2009 concerning the represented person, DM, determined by Member F Child on 30 July 2012, it is ordered that:
1.The order is revoked and a guardianship order in the following terms is substituted for it:
The Public Advocate of Level 1 Hyatt Centre, 30 Terrace Road, East Perth, Western Australia, and JM of [address deleted] are appointed joint limited guardians 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 Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person; and
(d)to determine the services to which the represented person should have access.
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 30 July 2017.

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER