DMS
[2008] WASAT 14
•29 JANUARY 2008
DMS [2008] WASAT 14
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 14 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1692/2007 | 17 OCTOBER 2007 | |
| Coram: | MR J MANSVELD (MEMBER) MS F CHILD (MEMBER) MS D DEAN (MEMBER) | 28/01/08 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | A guardian is appointed | ||
| B | |||
| PDF Version |
| Parties: | DMS |
Catchwords: | Guardianship and Administration Community Guardianship Program of the Public Advocate The meaning of "close personal relationship" in s 119 of the Guardianship and Administration Act 1990 (WA) Statutory obligations of an appointed guardian The appointment of a person other than a parent, nextofkin or Public Advocate as a guardian is contemplated by the Guardianship and Administration Act 1990 (WA) |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 43(1), s 44(1)(a), s 44, s 51(2), s 84, s 86, s 90, s 119 State Administrative Tribunal Act 2004 (WA), s 78 |
Case References: | Public Advocate and F [2007] WASAT 183 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : DMS [2008] WASAT 14 MEMBER : MR J MANSVELD (MEMBER)
- MS F CHILD (MEMBER)
MS D DEAN (MEMBER)
- Represented Person
Catchwords:
Guardianship and Administration - Community Guardianship Program of the Public Advocate - The meaning of "close personal relationship" in s 119 of the Guardianship and Administration Act 1990 (WA) - Statutory obligations of an appointed guardian - The appointment of a person other than a parent, nextofkin or Public Advocate as a guardian is contemplated by the Guardianship and Administration Act 1990 (WA)
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 43(1), s 44(1)(a), s 44, s 51(2), s 84, s 86, s 90, s 119
State Administrative Tribunal Act 2004 (WA), s 78
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Result:
A guardian is appointed
Category: B
Representation:
Counsel:
Represented Person : Selfrepresented
Solicitors:
Represented Person : Self-represented
Case(s) referred to in decision(s):
Public Advocate and F [2007] WASAT 183
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Summary of Tribunal's decision
1 The Public Advocate was first appointed the guardian for a severely disabled 60-year-old woman in 1997. The woman had lived in institutions for most of her life and in her current nursing home for over 40 years.
2 The Public Advocate was the woman's limited guardian with the function of consenting to her treatment and health care.
3 The Public Advocate applied to the Tribunal for a review of the guardianship order and proposed that a volunteer from her Community Guardianship Program become the woman's decision-maker in place of the Public Advocate.
4 The Public Advocate asked the Tribunal to consider whether the volunteer could make treatment and health care decisions for the woman without formal guardianship appointment. The Public Advocate referred the Tribunal to section s 119(3)(e) of the Guardianship and Administration Act 1990 (WA) which enabled a person, in a hierarchy of persons, to make treatment decisions for a person without the need for a formal order. To fulfil that role, a person such as the volunteer would need to establish that she had a close personal relationship with the woman.
5 The Tribunal decided that it was not appropriate to rely upon s 119(3)(e) of the Guardianship and Administration Act 1990 (WA) and that a formal guardianship order was needed. A guardian has a responsibility under the Guardianship and Administration Act 1990 (WA) to act in the best interest of the person for whom they are appointed guardian. This responsibility, when allied with the statutory requirement of the Tribunal to review guardianship orders, provides protection not present in decisions made under s 119, which are not subject to review.
6 The Tribunal was satisfied that the represented person was in need of a guardian and that the volunteer was suitable as her proposed guardian.
7 The Tribunal appointed the volunteer as the woman's limited guardian with the same function previously undertaken by the Public Advocate; to make treatment and health care decisions for the woman.
8 The Tribunal decided to review the order in 12 months.
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Background
9 These reasons relate to a review of a guardianship order for DMS (represented person), a 60-year-old woman with severe disabilities. The represented person resides in a nursing home and has done so for the past 44 years.
10 The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
11 The Public Advocate was first appointed the plenary guardian of the represented person by the former Guardianship and Administration Board (Board) in November 1997. The Public Advocate's role was reduced in January 1998 to that of limited guardian with the function of consenting to the represented person's treatment and health care. That order was confirmed by the Board in March 2001.
12 In January 2005, the Tribunal took over the functions of the Board.
13 On 15 November 2006, the Tribunal reappointed the Public Advocate as the represented person's limited guardian with the function of consenting to her treatment and health care.
14 In September 2007, the Public Advocate applied for a review of the guardianship order pursuant to s 86 of the GA Act.
15 The application was heard on 17 October 2007 and at that hearing the order of 15 November 2006 was revoked and DSM, a volunteer with the Community Guardianship Program developed by the Public Advocate, was appointed the represented person's limited guardian for a period of 12 months. DSM was given the function of consenting to the represented person's treatment and health care; the same role undertaken by the Public Advocate since 1998.
16 The hearing of 17 October 2007 was attended by DSM and two representatives of the Public Advocate, LJ and SD, who will be collectively described in these reasons as the Public Advocate.
17 On 19 October 2007, the Public Advocate requested written reasons pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA).
Power of the Tribunal upon review of a guardianship order
18 Under s 90 of the GA Act, the Tribunal may, as it considers necessary in the best interests of a represented person (a person the subject of a guardianship and/or an administration order), confirm the order; amend the order;
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- revoke the order; or revoke the order and substitute another order for it.
The capacity of the represented person (evidence and submissions)
19 The Tribunal relies upon a number of reports and assessments in deciding the question of the represented person's capacity.
20 The first of these is a report dated 16 July 1997 by Dr FF, the represented person's general practitioner for over 20 years. Dr FF states that the represented person has an impairment which is of a static nature, that of intellectual disability in association with spastic quadriplegia. She states that the represented person is totally dependent upon others for her daily care.
21 A report in the same year was made by the then Director of Nursing of the nursing home in which the represented person resides. The Director of Nursing states that the represented person is unable to follow instructions and her conversation is often repetitive and irrelevant.
22 In October 2006, Dr FF again reports a diagnosis of spastic quadriplegia with impairment of mental function.
23 In a report dated 11 September 2007, the manager of the nursing home states the view that the represented person's cognitive ability is very limited, and that her communication is often inappropriate and at times repetitive. The represented person is said to be able, sometimes, to make her basic needs and wants understood. She is reported to suffer from mood swings and anxiety and can become withdrawn.
24 In the report of another general practitioner, Dr AS, dated 12 October 2007 (Dr AS works in the same practice as Dr FF and completed this report when Dr FF was on leave), the opinion is that it is very difficult to assess the represented person's cognition because she has severe speech difficulties and her opportunities for normal education and socialisation have been limited. Dr AS states that the represented person has never had the opportunity to acquire life skills but is able to communicate some of her basic needs.
25 The Public Advocate submits that the represented person has a significant intellectual disability and remains a person for whom a guardianship order could be made.
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26 In her evidence, DSM says that it appears the represented person's language ability is decreasing and that she no longer talks in sentences (DSM is an experienced speech pathologist). She expresses the view that, had the represented person been given an education, and more stimulation and therapies she might have been a "different person".
The Tribunal's findings on the represented person's capacity
27 Before the Tribunal can consider whether a person is in need of a guardian it must first be satisfied that the person is incapable of looking after his or her own health and safety; unable to make reasonable judgments in respect of matters relating to his or her person; or in need of oversight, care and control in the interests of his or her own health and safety or for the protection of others (s 43(1)(b) of the GA Act).
28 A person is presumed to be capable of looking after his or her own health and safety, and making reasonable judgments in respect of matters relating to his or her person until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b) of the GA Act).
29 The Tribunal is satisfied on the evidence that the represented person is incapable of looking after her own health and safety, and is in need of oversight, care and control in the interests of her own health and safety. She is totally dependent on others for her care. She therefore remains a person for whom a guardian could be appointed.
The need for a guardian (evidence and submissions)
30 In her evidence, the Public Advocate states that the represented person continues to have health care and medical treatment needs. She is prescribed various medications to help relieve muscle spasms and associated pain; she has experienced recurrent ear infections which require specialist input; she has a permanent indwelling catheter which promotes infections or blockages, requiring hospitalisation from time to time; she is prone to recurrent pressure sores which require constant monitoring and ongoing treatment, and recently, she was referred to a specialist because of low sodium levels.
31 The represented person is not ambulant; she underwent a procedure many years ago (Girdlestone resection) which, together with her spastic quadriplegia, appears to have resulted in an inability to bear her own weight. She is confined to a special wheelchair which is effectively a narrow trolley on which she lies in a horizontal position. She cannot be seated for more than a few minutes at a time because of the risk of pressure sores. The trolley can be
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- raised so that when the represented person is out or when she is in the sun room of the nursing home, she is at eye level with the other residents and to that extent can have a sense of what is going on around her. The trolley was arranged with the assistance of the Cerebral Palsy Association and the Disability Services Commission.
32 The Public Advocate reports that the care plan for the represented person is reviewed frequently by Dr FF when she visits the nursing home. Dr FF is also available by telephone and is contactable at her home. The represented person is reviewed at least annually, and more often if needed by an occupational therapist, physiotherapist and dietician.
33 The Public Advocate submits that a person with the appropriate authority continues to be needed to consent to the represented person's treatment and health care. There is no other formal authority required; the represented person has lived in her current nursing home for many years and there is no suggestion that she should live elsewhere. Her entire life revolves around the care and support she receives at the nursing home.
34 In her evidence, DSM states:
"Basically, I feel that whilst it is a well run nursing home, and I have been in and out of lots of them over many years, it is really important that [the represented person] has someone looking out for her best needs."
The need for a guardian (Tribunal’s findings and determination)
35 The Public Advocate submits that DSM should be accepted as the appropriate decision-maker for the represented person (in respect of her treatment and health care).
36 It is the further submission of the Public Advocate that DSM can exercise that authority by virtue of the provisions of s 119 of the GA Act (as a less restrictive alternative to her appointment as guardian) or, in the alternative, that she be appointed the represented person's limited guardian.
37 The Tribunal accepts that DSM is suitable to be appointed the represented person's guardian. (See "The guardian for the represented person (Tribunal's findings and determination)".)
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38 For the appointment to be made, however, the Tribunal must first be satisfied that the represented person is in need of a guardian (s 43(1)(c)), which is the case for the following reasons.
39 Under s 4(2)(c) of the GA Act the Tribunal shall not make a guardianship (or administration) order if the needs of the person could, in the Tribunal's opinion, be met by other means less restrictive of the person's freedom of decision and action.
40 Section 119 of the GA Act provides a means by which consent can be given for a person's treatment (a person for whom, at the relevant time, a guardian could be appointed under the GA Act) without the need for a formal guardianship order.
41 Consent for treatment can be given by a person, the first in order of priority, in a hierarchy of persons listed in s 119(3). The hierarchy is as follows:
• A guardian of the person (with the relevant authority) (s 119(3)(a));
• The spouse or de facto partner of the person (s 119(3)(b))
• A person who, on a regular basis, provides or arranges for domestic services and support to the person but who does not receive remuneration for doing so (s 119(3)(c));
• A person who is the nearest relative (other than the spouse or de facto partner) of the person and who maintains a close personal relationship with the person (s 119(3)(d));
• Any other person who maintains a close personal relationship with the person (s 119(3)(e)); or
• A person prescribed in the regulations (s 119(3)(f)).
42 No person has been prescribed in the regulations.
43 The "nearest relative" is defined in s 3 of the GA Act and includes the children of the person, parents, siblings, grandparents, uncles or aunts and nephews or nieces.
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44 A "close personal relationship" is defined in s 119(3a) as a relationship that is maintained through frequent personal contact and a personal interest in the welfare of the person needing the treatment.
45 Section 119 authorises medical practitioners to provide treatment to a person who cannot give consent. It can operate as a less restrictive alternative to a guardianship order, usually in circumstances where there is a recognised longstanding relationship, often described in the health care setting as a "next-of-kin".
46 The hierarchy in s 119 extends the potential persons who could fulfil that role, but the intention of the section is to provide a practical response to the question of consent to medical treatment of incapable patients, usually without an application being made for a guardian. In cases where a guardian has been appointed because there is no-one recognised as playing an informal role in the life of that person, the Tribunal may be more likely to consider that an ongoing order is required.
47 In an earlier decision of the Tribunal (one that also dealt with the Public Advocate's Community Guardianship Program), it was found in the circumstances of that case that there would be the potential for uncertainty in relying on s 119(3)(e): see Public Advocate and F [2007]WASAT 183 at [31].
48 In that case, a proposed guardian (community guardian) had known the person for some months and it was accepted that a supportive relationship with that person was developing, however, the relationship was found not to be sufficiently established to warrant the acceptance by the Tribunal that the use of s 119(3)(e) would be in the person's best interests: Public Advocate and F at [6] and [30].
49 Even though decided on its own facts, the Tribunal agrees with the emphasis that was placed on the meaning of a "close personal relationship" inPublic Advocate and Fas it relates to s 119(3)(e).
50 That emphasis has to do with the circumstances surrounding the commencement of the relationship, that is; how the person come into the life of the other person (the latter being a person who is incapable of giving consent); how, from those circumstances and subsequent events, can the likelihood of the relationship enduring be deduced; and whether there needs to be accountability by way of a periodic review of a formal order.
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51 A volunteer under the Public Advocate's Community Guardianship Program, will, the Tribunal suspects, most often not know the person until first introduced by the Public Advocate. In that sense the beginning of the relationship is not organic because the person under disability has played no part in initiating the relationship (and it is not in the nature of a familial relationship).
52 The person with the disability in effect relies wholly upon the bona fides of the person introduced to him or her by the Public Advocate. Whilst this is mitigated by the process undertaken by the Public Advocate in vetting and training "community guardians", the fact remains that in applications like the one before the Tribunal, the proposal is that the (community) guardian be put in a position of deciding what is in the best interests of the person in place of the Public Advocate (who, as a statutory officer, affords the protections of that office to persons for whom she is guardian).
53 For the above reasons, the Tribunal is of the view that a guardianship order will, more often than not, be in the best interests of a person for whom a volunteer under the Public Advocate's Community Guardianship Program is being proposed as the decision-maker.
54 A person cannot be appointed a guardian unless (amongst other things) he or she will, in the opinion of the Tribunal, act in the best interests of a represented person (s 44(1)(a) of the GA Act). Whilst the Tribunal would not accept s 119 as a less restrictive alternative to the making of a guardianship order if there was a concern that the nominated person would not act in the (proposed) represented person's best interests, the guardian's obligations are defined in the GA Act whereas the obligations of a person acting under s 119 are not. The relevant section is s 51, which states that a guardian acts in the best interests of a represented person if he or she acts as far as possible:
55 • As an advocate for the represented person, (s 51(2)(a));
56 • 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 (s 51(2)(b));
57 • In such a way as to encourage and assist the represented person to become capable of caring for himself or herself and of making reasonable judgments in respect of matters relating to his or her person (s 51(2)(c));
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58 • In such a way as to protect the represented person from neglect, abuse or exploitation (s 51(2)(d));
59 • 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 (s 51(2)(e));
60 • In the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person (s 51(2)(f));
61 • In such a way as to maintain any supportive relationships the represented person has (s 51(2)(g)); and
62 • In such a way as to maintain the represented person's familiar cultural, linguistic and religious environment (s 51(2)(h)).
63 These responsibilities, when allied with the statutory requirement of the Tribunal to review guardianship (and administration) orders under s 84 of the GA Act, offer a robust protection not inherently present in decisions made under s 119. This lends further weight to the notion that allowing s 119 to operate, as against the making of a guardianship order, should be reserved for those situations where the decision-maker has established a relationship of significant strength and duration with the person for whom decisions need to be made.
64 It is for these reasons that the Tribunal is satisfied that the represented person is in need of a guardian. It is the view of the Tribunal that DSM has not established the requisite relationship with the represented person which obviates the need for the protective role of a guardianship order.
65 As already mentioned and which will be explained below, this does not of itself mean that DSM is unsuitable as the proposed guardian for the represented person. It is the mechanism by which DSM assumes her role as the represented person's decision-maker that has lead the Tribunal to determine that a guardianship order is warranted.
66 The Tribunal accepts the submission of the Public Advocate that only a limited guardianship order is required for the represented person, and that is to make decisions about her treatment and health care. This is consistent with the principle of the GA Act which states that a plenary guardian shall not be appointed if the appointment of a limited guardian is sufficient to meet the needs of a represented person (s 4(2)(d), GA Act).
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67 As for the wishes of the represented person, she is not in a position to state directly to the Tribunal what they may be in respect of her need for a guardian. Evidence has been provided that the represented person cannot communicate effectively in spoken language and we accept that this is the case given the significant disabilities she has had over her entire life. It is, however, open to the Tribunal to adopt the assumption that she would support having someone external to her institutional setting to advocate and speak for her regarding her care needs.
The guardian for the represented person (evidence and submissions)
68 As already mentioned, the Public Advocate proposes that DSM be appointed the limited guardian of the represented person.
69 DSM is a volunteer under the Public Advocate's Community Guardianship Program. The key features of the program have been previously described (see Public Advocate and Fat [12] and [14] and [32] to [41]).
70 The Tribunal supports the development of the program (Public Advocate and F at [50]).
71 The Public Advocate states that changes have been made to the program since the decision in Public Advocate and F. The "Memorandum of Understanding" which was held to fetter an appointed (community) guardian's discretion and decision-making authority (Public Advocate and Fat [36]), is no longer a part of the program. As a consequence, a (community) guardian will make decisions independently of the Public Advocate but may access support similar to that offered to other guardians appointed by the Tribunal. There is no intention for a (community) guardian to make decisions jointly in any way with the Public Advocate.
72 It is submitted that under the Community Guardianship Program, the Public Advocate will seek revocation of orders where she is the appointed guardian only when she has determined that a (community) guardian is the most suitable person to propose as guardian. This will generally be when the (community) guardian has known the particular represented person for some time and is fully aware of his or her personal circumstances and needs. Further, that the Public Advocate is satisfied that the (community) guardian can make the full range of personal decisions required for the represented person.
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73 In respect of DSM, the Public Advocate states that she has worked with people with a decision-making disability all of her working life, the last 20 years having been spent working with people with intellectual and physical disabilities in hostels, group homes, schools, at their home and in nursing homes. In her personal life, DSM has assisted her elderly parents when they faced major health decisions in their lives. She has also advocated for her own mother when she was living in a nursing home.
74 The Public Advocate submits that DSM has a thorough understanding of the issues faced by adults with decision-making disabilities, particularly those with intellectual disabilities and communication difficulties. She is said to be passionate about the rights of people with decision-making disabilities and is adept at advocating on behalf of others. She is a very empathetic and tolerant person.
75 As for DSM's relationship with the represented person, they were introduced in February 2007 and since then DSM has visited the nursing home on a fortnightly basis. She has spent a good deal of time with the primary care staff in order to best understand the represented person's history and current needs. As a result of these visits, DSM was able to advise the Public Advocate that the represented person has been prescribed an anti-depressant medication.
76 DSM is assisting in the sorting of the represented person's collection of photographs, has brought in some music for her and was present at her sixtieth birthday celebrations.
77 DSM has been introduced to Dr FF. The represented person's general practitioner is, according to the Public Advocate, comfortable in providing DSM with information about the represented person's health care.
78 The manager of the nursing home has advised the Public Advocate that the represented person responds in a very positive way to DSM. The manager supports the proposal that DSM be appointed the represented person's guardian for medical decisions.
79 In her evidence, DSM says that she has completed the training held by the Public Advocate as part of the Community Guardianship Program.
80 DSM says that she enjoys getting to know the represented person and "looking out for her". She sees it as important that the represented person has someone to regularly visit her and advocate for her best interests.
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81 DSM says that she views her involvement with the represented person as a long-term commitment. She feels able to make all the treatment and health care decisions for the represented person. She puts it this way:
"But I do not feel I would be alone. I mean, you have got this fabulous nursing home, you have got the GP, you have got the nursing staff. So it would not be me going in and saying, 'This is what must happen.' I would have to talk it through with the others and I think then we would reach a consensus …"
82 In respect of the wishes of the represented person as to who should be her guardian, the evidence is (as with the need for a guardian) that the represented person is unable to clearly communicate her preference. However, the manager of the nursing home states that she responds in a very positive way to DSM and this is noticed by all staff who work with the represented person.
The guardian for the represented person (Tribunal's findings and determination)
83 The primary concern of the Tribunal is the best interests of a represented person (s 4(2)(a) of the GA Act).
84 As to who should be appointed a guardian, the Tribunal is guided by the provisions of s 44 of the GA Act. The proposed guardian must be a person of at least 18 years of age who has consented to act and who, in the opinion of the Tribunal, will act in the best interests of a represented person; is not in a position where his or her interests conflict, or may conflict, with the person's interests; and is otherwise suitable to act as the person's guardian.
85 To decide the suitability of the proposed guardian the Tribunal shall take into account as far as is possible, the desirability of preserving existing relationships within the family of the represented person; the compatibility of the proposed guardian with the represented person and the administrator (if any) of his or her estate; the wishes of the represented person; and whether the proposed guardian will be able to perform the functions vested in him or her (s 44(2)).
86 Except where she is appointed to act jointly with another person or persons, the Tribunal shall not appoint the Public Advocate as guardian unless there is no other person who is suitable and willing to act (s 44(5)).
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87 It is family members who are expected mainly (but not exclusively) to be appointed guardians in the operation of the GA Act. This intent can be found in the Second Reading Speech by the then Minister for Health, the Hon Keith Wilson on 6 June 1990 (Hansard at [1914] and [1915]).
"The term 'Guardianship' encompasses the main objectives of the Bill. Guardianship is a legal device which gives an individual a right to make decisions on personal matters on behalf of some other person. The classic example is the parent-child relationship, where the parents are the legal guardian of their children. At present when individuals reach the age of 18 years, regardless of their degree of disability or infirmity, they have full legal capacity and the legal rights of a parent end. Many parents may wish to continue to be the legal guardians of mentally disabled adult family members, and to make provisions to ensure continuing care when they are no longer able to carry out this responsibility. Under the current law this is not possible. The concept inherent in the proposals now before the House addresses this problem and is a significant step forward in an important area of human concern.
... The Provisions of this Bill also provide for the Governor to appoint a public guardian. The creation of this office is modelled on that of the public guardian in Victoria, South Australia and New South Wales. The public guardian may act as a guardian in the event there is no parent, next of kin or other suitable person willing to do so." (emphasis added)
88 As already mentioned in these reasons, DSM is the person proposed to be the guardian for the represented person. She is not a "next of kin" of the represented person, but an appointment other than a parent, next of kin or the Public Advocate is, as the above demonstrates, contemplated by the GA Act.
89 In the Public Advocate and F(at [32] to [41]), it was decided that the Public Advocate should continue as the person's guardian. In that case, the proposed guardian was not considered to be suitable within the meaning of the GA Act because the Tribunal found that she was not yet prepared to exercise the full range of decision-making that might be required. The provisions of the "Memorandum of Understanding" between the Public Advocate and the proposed guardian meant that a (community) guardian would only exercise her authority alone (without the Public
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- Advocate) in relation to straightforward or day to day decisions.
90 This is not the situation with DSM. The "Memorandum of Understanding" is no longer to be adopted by the Public Advocate. The Tribunal accepts on the evidence that DSM is able to make the "full range" of treatment and health care decisions for the represented person, in her best interests.
91 The Tribunal is impressed with the evidence and presentation of DSM as to her intentions regarding her advocacy for the represented person, her commitment to regularly visit the represented person, and engage with her carers and the general practitioner.
92 The Tribunal is satisfied that DSM has demonstrated her compatibility with the represented person and will be compatible with the Public Trustee as the represented person's administrator.
93 The Tribunal is also satisfied on the evidence that DSM has established a relationship with the represented person that, as far as can be determined, the represented person enjoys. To that extent, it can be said that the presence of DSM is not contrary to wishes of the represented person.
94 There is no evidence that the interests of DSM conflict, or may conflict, with the interests of the represented person.
95 Given all of the above, the Tribunal finds DSM suitable to act as guardian for the represented person and, given her willingness to be appointed, the Tribunal must appoint her for what it has been determined is the need for a guardian; to make treatment and health care decisions for the represented person.
96 The Tribunal has decided to review the order in 12 months. We agree with the Tribunal in Public Advocate and F (at [51]) that at the end of such a period the Tribunal will be in a position to determine whether, in this case, DSM has demonstrated her ongoing suitability to be the decision-maker and advocate for the represented person; whether a guardian is still required; or whether DSM can make treatment decisions for the represented person under s 119(3)(e) of the GA Act.
Order
97 DSM is appointed the limited guardian of the represented person with the function of deciding her treatment and health care.
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- 1. The order is set for review in 12 months.
I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER