DY - [2009] WASAT 43 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: DY [2009] WASAT 43

MEMBER: MS F CHILD (MEMBER)

HEARD: 29 AUGUST 2008 AND 25 NOVEMBER 2008

DELIVERED : 13 MARCH 2009

FILE NO/S: GAA 1619 of 2008
GAA 1620 of 2008

BETWEEN: DY
Represented Person

Catchwords:

Guardianship and administration - Review of orders - Diagnosis of longstanding mental illness - Disposal of assets when mentally unwell - Involuntary status under the Mental Health Act 1966 (WA) - Fluctuating condition - Whether less restrictive alternatives of support and supervision in the community adequate to meet needs - Whether a guardian needed to make decisions about accommodation and services - Whether administrator needed to safeguard estate - Public Advocate and Public Trustee reappointed guardian and administrator

Legislation:

Guardianship and Administration Act 1990 (WA), Div 3 Pt 5, s 4(2), s 4(2)(c), s 43(1)(b), s 43(1)(b)(iii), s 43(1)(c), s 64, s 64(1)(b), s 84, s 86
Mental Health Act 1966 (WA)

Result:

Confirmation of orders appointing Public Advocate as limited guardian and Public Trustee as administrator

Category: B

Representation:

Counsel:

Represented Person : Mr P Hill

Solicitors:

Represented Person : Mental Health Law Centre

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

A 71yearold woman with a diagnosis of longstanding mental illness sought revocation of the orders which appointed the Public Advocate as her guardian and the Public Trustee as the administrator of her estate. The woman was represented by the Mental Health Law Centre.
At the time of the review of the orders she had been a patient at an acute psychiatric hospital for many months. For much of that time she had been an involuntary patient.
The woman had a fluctuating psychiatric condition with frequent regular deteriorations in her mental state and, it was said, her condition was likely to progress with age. A trial of living at home was attempted during an adjournment of the review hearing but the woman again refused to accept services to support her living at home and her mental state had again deteriorated. Only days after discharge, she was again readmitted to hospital. When final submissions were received from the Mental Health Law Centre she had again been discharged from hospital.
The Tribunal determined that the woman remained a person for whom orders could be made. The nature and severity of her psychiatric condition meant that she was unable to make reasonable judgments about her person or about her estate. The frequency of the fluctuations, and the severity of the deterioration in her mental health, placed her at risk without care and supervision but she had consistently refused services necessary to support her living in the community and refused to move to residential care.
The Tribunal decided that a guardian was needed to consent to treatment and services on her behalf and ultimately to decide where she was to live. As no family members proposed their appointment, the only possible appointment as guardian was the Public Advocate.
The Tribunal heard that the woman had given away a large part of an inheritance some years before with the effect that her pension had been significantly reduced by Centrelink. The psychiatric opinion before the Tribunal was that this was consistent with the mental illness that the woman suffered. The woman said that she planned to give more money away if she resumed control of her financial affairs. The Tribunal determined that she was not capable of managing her financial affairs and reappointed the Public Trustee as the administrator of her estate.

Background

DY is a 71yearold woman with a diagnosis of a mental illness, described as bipolar effective disorder or schizo-effective disorder.
She was first made subject to guardianship and administration orders on 19 December 2007. Those orders were made reviewable in one year. Her son, G, was at that time appointed plenary administrator of her estate and the Public Advocate was appointed limited guardian to decide where she was to live, with whom she was to live and to consent to treatment or health care on her behalf. At the time of the appointments the represented person was an inpatient at a psychiatric unit of a hospital (the unit).
The order, appointing her son as administrator of her estate, was reviewed on an application by a social worker from the unit where the represented person was then an involuntary patient but from which she had absconded. On review in May 2008, the appointment of the son was revoked and the Public Trustee appointed plenary administrator. The Tribunal revoked the son's appointment as the represented person's administrator as her pension had been cancelled and the administrator had not taken active steps to deal with that problem on her behalf. There were other matters which required attention by the administrator which had not been addressed. The son agreed that the commitments in his own life meant that he was unable to play the role of administrator effectively for the represented person. The revocation of his appointment and the appointment of the Public Trustee was supported by the daughter of the represented person, M, who attended the hearing.

Current Review

The represented person sought review of both the guardianship and administration orders in July 2008.
The review was first heard on 29 August 2008 (first hearing). The first hearing was attended by the represented person, her daughter M, the delegated guardian, Ms P, a social worker, Ms C, nurse from the unit, and a representative from the Mental Health Law Centre (MHLC) appeared for the represented person.
Following oral evidence and submissions, the hearing of the application for review of the administration order was adjourned to 15 October 2008 for further medical reports because of uncertainty about the status of the represented person under the Mental Health Act 1996 (WA) (MH Act) and consequent lack of clarity about the medical opinion regarding the represented person's capacity to make decisions in her best interests.
The guardianship order appointing the Public Advocate as limited guardian was amended to include an authority to consent to services on behalf of the represented person. This order was made as the Tribunal found that the represented person was a person for whom a guardianship order could be made, in that she was in need of oversight care and control in the interests of her own health and safety, pursuant to s 43(1)(b)(iii) of the Guardianship and Administration Act 1990 (WA) (GA Act). This finding was made as the represented person had been deemed by her treating psychiatrists to be in need of the close oversight and control for many months as an involuntary patient under the MH Act. In the Tribunal's view, she was in need of a guardian to consent to services on her behalf to allow a trial of living at home with support services to which she would or could not consent (see s 43(1)(c) of the GA Act.) The guardianship order was to be reviewed to coincide with the reconvened hearing of the review of the administration order.
Written requests for clarification of the apparent inconsistency in the medical opinion before the Tribunal were sent to Dr G, Dr S and Dr H on 11 September 2008.
The October hearing date was later vacated at the request of the delegated guardian because a proposed trial of the represented person living at home was planned.
The matter was relisted and heard on 25 November 2008. The hearing proceeded in the absence of the represented person who had been admitted to hospital due to deterioration in her mental state and a suspected chest infection. A representative of the MHLC appeared on her behalf. The delegated guardian attended in person and the represented person's daughter, M, and the consultant psychiatrist responsible for the treatment of the represented person, Dr S, attended the hearing by telephone.
The matter was adjourned further for written submissions on behalf of the represented person to be provided by the MHLC within 21 days. The decision was thereafter reserved and these written reasons are the reasons for the decisions in this matter.

Evidence and material before the Tribunal

The evidence and material before the Tribunal includes the application and supporting documents, including reports from Dr G, dated 9 June 2008, and social worker, Ms P, dated 3 June 2008, of the mental health unit; submissions from the MHLC on behalf of the represented person; reports from the Public Advocate and the Public Trustee; a report from Dr L, the represented person's general practitioner, dated 8 August 2008; and the Aged Care Client Records dated 27 July 2008 and 27 August 2008.
Reports from Dr H, a consultant psychiatrist from the Community Mental Health team, dated 23 September 2008, and from Dr S, a consultant psychiatrist, and his registrar, Dr M, dated 24 November 2008 were received in response to a request from the Tribunal following the adjournment.
The Tribunal also heard oral evidence and submissions from the represented person, her daughter, Ms P the social worker, and the delegated guardian, at the first hearing; and from Dr S, the consultant psychiatrist overseeing her psychiatric treatment, at the final hearing.
Reports held on the Tribunal's file from Dr G and Ms E (social worker) submitted for an earlier hearing October 2007 were also considered.
As noted above, at the first hearing there was some ambiguity in the medical and other professional evidence about the represented person's capacity to make decisions about her person and her estate.
The ambiguity arose from a report provided for the review by Dr G, dated 9 June 2008, in which he said that the represented person was capable of making decisions about her personal health care and living situation, and that he was unsure about her capacity to make decisions about her finances. This view was supported by Ms P, the social worker, both in the hearing and in her report in support for the discharge of the guardianship order.
In the hearing, and in her report, Ms P said that the represented person left hospital and went home and shopped and cooked meals for herself. Ms P also said that the represented person was willing to accept services at her home and submitted that a guardian was not required.
The Tribunal considered that the opinion of Dr G regarding the capacity of the represented person was somewhat anomalous with the represented person being at the time of the hearing (and for much of her lengthy admission to the unit dating from December 2007) an involuntary patient under the MH Act.
Although the Tribunal findings to make a guardianship order are distinct from those for determination of involuntary status under the MH Act, there is some overlap. To be detained and treated as an involuntary patient, a person must be found to be in need of psychiatric treatment to avoid risks of harm but be unable or unwilling to consent to that treatment. The risks referred to in the MH Act can include physical harm, risks to mental health or financial harm.
An inability or unwillingness to consent to needed psychiatric treatment might support findings that a person is 'unable to make reasonable judgments in respect of matters relating to her person or is in need of oversight, care or control in the interest of her own health and safety' which are elements set out in s 43(1)(b) of the GA Act for the making of a guardianship order.
Dr G's opinion, provided for the review, also varied from his report to the Tribunal, dated 27 October 2007, in which he said the represented person suffered from a 'severe form of bipolar disorder' which was described as a 'progressive condition' and that she was under investigation for possible vascular dementia. His opinion at that time was that she was incapable of making decisions in respect to her personal health care, her living situation and her financial affairs.
In addition, a report of the represented person's general practitioner Dr L, dated 8 August 2008, stated that the represented person is, in his opinion, incapable in the spheres of personal decisionmaking, that he was 'unsure' whether she was capable of making financial decisions but was incapable of giving an enduring power of attorney. He also noted he had not seen the represented person for some time.
Although there was no report from Dr S, he was reported by the delegated guardian to consider that the represented person was able to decide for herself that she could live at home.
The review hearing was adjourned to obtain clarification of the medical reports and the question of the capacity of the represented person to make decisions about her person and her estate.
Following the adjournment, reports were received from Dr S, the supervising consultant psychiatrist at the unit and his registrar Dr M, and from Dr H, the psychiatrist treating the represented person in the community prior to her admission to the unit. Dr S gave further oral evidence in the final hearing.
The report of Dr M and Dr S states that the length of the represented person's hospital admission was related to the appointment of a guardian by the Tribunal who had determined that the represented person could not live safely in her own home.
It also notes that she had been made an involuntary patient under the MH Act on several occasions during her lengthy admission to the hospital when she became unwell and her selfcare deteriorated. The report goes on to say that the represented person sometimes refuses medication and that there is a risk to her reputation and her selfcare. It is said that she was made an involuntary patient during the admission to ensure she remained at the unit and received medication and physical health monitoring.
The report notes that the represented person relapses every two to four weeks in her mental state and has a 'very low threshold for mental state deterioration'. Because of this, according to the report, she needs regular checks if living in the community to treat the triggers before a manic or depressive episode. Between the relapses the represented person is said to have been 'independent, took her medication, and daily returned to her home on day leave to cook herself a meal. She would negotiate public transport to do this. She posed no self care concerns when well'.
Dr H who treated the represented person in the community for four months prior to her admission to hospital provided a report dated 23 September 2008 which states in part:
Self care at home is poor. No insight into mental illness. Makes majority of decisions on a delusional basis. Increasing frequency of cognitive dipping/delirium and disorganisation at home [and] consequent risk of harm to self.
In response to questions about her capacity to make reasonable decisions in the spheres of personal health care, her living situation and her financial affairs, Dr H considers the represented person incapable of making reasonable decisions. In particular he states:
[She] [s]uffers from a severe mental illness. No insight into same. Not able to provide consent to voluntary treatment. Interprets other physical ailments in a delusional way. Does not acknowledge her functional [and] cognitive limitations therefore [has] no grasp of consequences of decision to live independently. Makes financial decisions on basis of persecutory delusional system into which she has no insight. Known to carry thousands of dollars cash in her handbag. Spends on unnecessary 'Protective' items re: delusions of persecution. Can present well in context of 'contained' and structured inpatient or residential setting. Her poor functioning [and] impact of illness or behaviour is most evident, and most risky, in the independent living arrangement of her home.
Dr H did not consider the represented person could give an enduring power of attorney.
During the final hearing on 25 November 2008, Dr S said that the represented person had been discharged from the mental health unit since the first hearing but had then been taken to the emergency department at another hospital by her community mental health nurse as the represented person was suffering from respiratory condition and a deterioration in her mental state as she had not taken her medication. The hospital had requested transfer of the represented person to the mental health unit, which would occur as soon as a bed became available.
The delegated guardian confirmed that the represented person was discharged from the unit on 19 November 2008, but without the consent of her guardian, the Public Advocate. The delegated guardian said that the Public Advocate would not consent to the discharge as she considered the level of care service provided for the represented person was insufficient to meet her identified needs. Since the discharge, the Public Advocate's Office had been contacted regarding refusal of services by the represented person.
The delegated guardian reported that she had visited the represented person at home with the community mental health nurse and that the represented person was disorientated. The guardian said that she regarded it as significant that there had been such deterioration in the short space of time since discharge.
In her report and oral submissions at the final hearing, the delegated guardian maintained the position, outlined at the first hearing, that the represented person was, in her submission, a person for whom both administration and guardianship orders could be made and that she was in need of both orders.
In particular, due to the represented person's inability to live safely in the community without services, the insufficiency of the available services, and her opposition to living in residential care, the Public Advocate submitted that a decision about her accommodation would be required in the future by a guardian. If reappointed, the Public Advocate would consider residential care for the represented person.
The evidence from Dr S in the final hearing is in substantial agreement with the position expressed by the guardian and that of Dr H, who treated the represented person while she was living in the community.
Dr S states that an acute mental health setting is not an appropriate placement for the represented person and that a permanent placement in safe secure supported accommodation is needed. He says that her condition is a fluctuating one and that the 'real issue' is the regularity of the fluctuations and that despite the efforts of the health care professionals, that 'the system was unable to put sufficient checks and balances in to prevent triggers to the represented person "decompensating badly" with unquestionable decline in her cognitive abilities when she got the slightest infection or the slightest trigger to deterioration in her mental illness'. The hospital had instigated a trial at home on 'humanitarian grounds' but the frequency of the fluctuations 'are too frequent [and] too grave and she should really be protected against herself during these fluctuations' (T:7).
In response to questions regarding the investigation of possible vascular dementia, he responded that there had been CT scans of the represented person's brain but they had not shown any evidence of physical pathology. However, testing over the period of her admission to the unit had shown a worsening of the represented person's condition and signs of 'impairment in higher mental functioning' (T:9). He said that it was likely that the represented person would decline with the passage of time and 'the fluctuations might become more frequent and with some evidence of decline with the passage of time' (T:10).
The guardian's written report also referred to the need for decisions by an appointed guardian about the represented person's healthcare. She referred to Dr H's evidence that the represented person interpreted her physical health problems in a delusional way. In the guardian's submission, there is also a need for consent to psychiatric care as, although the represented person is likely to need longterm care, she may not always be treated as an involuntary patient.

At the first hearing the represented person expressed the wish to leave hospital and return home to live. She did not want to live in aged care accommodation and believed that a decision of the Tribunal could facilitate this. She was confused about the role of the Tribunal and, although the review was explained more than once during the hearing, she remained of the view that the Tribunal could make orders which would result in her discharge from involuntary status and from hospital.
In respect of financial decisionmaking, at the first hearing the represented person maintained that she could manage her own finances and wished to do so. She did not want the Public Trustee to manage her affairs.
Ms P, the social worker, submitted that the represented person was careful with the allowance of $80 per week paid to her by the Public Trustee and 'budgets well'. Ms P said she had 'no concerns about the safety of that amount of money on [the represented person] (T:13). In her written report, the social worker submits that the represented person 'needs assistance to curb overspending and keep her money safe when unwell' [and would] 'benefit from the administration order'.
When questioned about the inheritance she received in 2005, the represented person could not remember the amount she had received or the total that she had given away.
A letter from the Public Trustee confirmed the deposit of $281,608 into the represented person's bank account on 6 December 2005, being the proceeds of the deceased estate of her mother.
From material before the Tribunal, much of the money appears to have been given by the represented person to family members, including her daughter S, who lives overseas and who was, according to the represented person, assisting her at the time with the administration of her mother's deceased estate. The represented person said during the hearing that she had not understood the effect on the pension of making the gifts.
The represented person's responses to questions about the gifted money were inconsistent: on the one hand she said that she wanted the money back (T:51) but later said that she had 'a little bit left and at Christmas time' she was 'going to distribute a little bit more to my family' if she resumed control of her estate (T:52).
The Public Trustee's report dated 22 August 2008 reports the represented person's pension of $411 per fortnight as being low because Centrelink provisions treat money gifted by the represented person as her asset for five years and, as such, she was not entitled to a full pension until 2010.
The estate of the represented person includes funds held in a term deposit and in the Public Trustee's cash account. There is a credit card debt of little over $7,000. The net value of the estate is around $30,000.
At the final hearing, Dr S confirmed that the represented person was under psychiatric treatment for her longstanding condition in 2005 at the time when she gave away the substantial part of her inheritance. He said that such behaviour was 'entirely consistent' with her 'well documented history of bipolar disorder' and her 'tendency to become expansive and excessively generous when she becomes manic' (T:6).

Mental Health Law Centre submissions

In respect of the review, the MHLC, on behalf of the represented person, makes the following submissions:
•The represented person wishes the orders to be revoked in their entirety as she does not believe she meets the criteria for the making of the orders.
•She acknowledges she has a psychiatric illness needing treatment but denies that any of the criteria set out in s 43(1)(b) or s 64 of the GA Act apply to her or that she needs a guardian or an administrator.
•That she was discharged from hospital after the final hearing and at the time of the writing of the submission she was living at home with support services.
•That providing she has assistance to ensure medication compliance and oversight of her health where possible, triggers to medical health problems can be averted.
•That the represented person recognises she has a mental illness and the critical need to take medication.
In respect of the management of her estate, it is submitted that it is relevant to the question of the represented person's vulnerability as to whom the money was gifted in 2005 and that the represented person [now] manages her limited income without raising concerns.
It is submitted that the reports evidence the current mental state of the represented person as capable of making decisions about her health care and her accommodation providing she has assistance to ensure medication compliance and oversight of her health.
It is submitted that the represented person has sufficient care in the community to ensure medication compliance.
It is also submitted that there is no live issue for intervention by a guardian.

Legislation

On review of orders made under the GA Act, the Tribunal may confirm, amend or revoke an order.
To make orders on review for the represented person, the Tribunal must be satisfied that the represented person is a person for whom the orders can be made.
For the appointment of a guardian, the Tribunal must be satisfied, under s 43(1)(b) of the GA Act, that:
(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
…
(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;
For the appointment of an administrator, s 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.
(3)An appointment under subsection (1)
(a)may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;
(b)may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given.
The Tribunal must also be satisfied that the orders are needed (s 64(1)(b) and s 43(1)(c) of the GA Act and there are no less formal means by which the needs of the represented person can be met. If those conditions are met, the Tribunal must then determine who should be appointed in the roles of guardian and administrator.
In any proceedings under the GA Act, the Tribunal is required to observe the principles set out in s 4(2) of the GA Act.
Those principles provide that the primary concern of the Tribunal must be the best interests of any represented person, that every person shall be presumed to be capable of looking after their own health and safety, making reasonable judgments in respect of matters relating to their person; managing their own affairs; and making reasonable judgments in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal.
The principles also include that orders should not be made if the needs of the person, in respect of whom an application for such orders is made, could, in the opinion of the Tribunal, be met by means less restrictive of the person's freedom of decision and action. Any order made should be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action. In considering any matter, the Tribunal is bound to attempt to ascertain the wishes of the person as expressed or gathered from the person's previous actions.

Findings

Although there was an apparent conflict between the June 2008 report of Dr G in which he stated that the represented person was capable in the spheres of personal decisionmaking, and the other medical reports, the Tribunal concludes that the evidence as a whole supports the finding that the represented person has a severe fluctuating mental illness and remains a person for whom a guardian and an administrator may be appointed. The frequency of the deteriorations in her mental state mean that she is at risk of impaired decisionmaking during those frequently recurring episodes.
The evidence of Dr S, who is the consultant psychiatrist overseeing the represented person's treatment in hospital and to whom Dr G reports, and that of Dr H, the consultant psychiatrist treating her in the community, is consistent. Both consider she needs oversight and monitoring and that she lacks insight into her condition and situation. Dr L was unsure about the represented person's capacity to manage her finances but his report does not support the presumption that the represented person is capable in this sphere as he had not seen the represented person for some months.
There is agreement between all the health professionals that when the represented person is psychiatrically unwell that her capacity to make decisions is substantially impaired. The Tribunal accepts the evidence of Dr S and Dr M that she becomes unwell every two to four weeks and during those periods that her deterioration is so severe that she requires hospitalisation.
The need for oversight of her medication and her health in the interests of maintaining the represented person's mental health is conceded on behalf of the represented person.
Although it is submitted on behalf of the represented person that she acknowledges that she has a mental illness requiring treatment and she sees the critical need for her medication, this conflicts with the evidence of Dr H and Dr S which the Tribunal prefers. Her refusal of medication is noted in the reports and her status as an involuntary patient is not consistent with the submission that she has insight into her condition and is compliant with treatment.
In her evidence and submissions in the first hearing, the represented person minimised her illness and said that the reason for her admission to hospital by her general practitioner had been because she had had too much coffee (T:22 and T:23). The failure to take her medication was given as a reason for the deterioration in her mental state and her readmission to hospital so soon after discharge.
Although it is submitted that the represented person can be supported and monitored in the community, her evidence in the first hearing is that she terminated the services of a carer.
She stated she would accept the services described by the social worker at the first hearing but her readmission to hospital occurred in the context of refusal of those services shortly after discharge. The Public Advocate as her guardian would not consent to her discharge from hospital because the guardian had assessed the available home support services as inadequate to meet the needs of the represented person. Dr S, in effect, concedes this to be the case in his evidence.
Based on all of the evidence, the Tribunal finds that the represented person is, because of her fluctuating mental illness, incapable of looking after her own health and safety and is in need of oversight, care or control in the interests of her own health and safety and is therefore a person for whom a guardian can be appointed.
The Tribunal is satisfied that the represented person is in need of a guardian to make decisions about where and with whom she should live and to consent to medical treatment and services on her behalf.
In respect of the evidence about her financial decisionmaking, the Tribunal finds that the represented person is unable by reason of her mental illness of making reasonable judgments about her estate.
The represented person's evidence is that she gave away a substantial amount of money which she inherited and that she intends to distribute further funds if she regains control of her estate. Her pension is already restricted by Centrelink. It is accepted that she is able to manage the $80 per week allowance paid to her by the Public Trustee as administrator while she was in hospital but this does not support the revocation of the order.
The evidence of Dr S, the represented person's own evidence that she intends to distribute further funds, and her past actions in this regard leads to the inevitable conclusion that if the represented person regained control of the remaining funds held by the Public Trustee that those funds would be at risk.
The Tribunal is not persuaded that, because the recipients of the previous gifts made by the represented person were family members, the financial detriment suffered by the represented person is any less or that the need for protection is thereby reduced.
The adverse consequences to her pension entitlement of the previous gifting and the need to address this with Centrelink, the future need for the payment for services, and possibly accommodation, all support the need for financial management of the represented person's estate through a formal administration order. If the guardian decides, as has occurred in the past, that the represented person should live in supported accommodation, then the administrator will need to terminate her tenancy and deal with her property.

Is there a less restrictive means of meeting the represented person's needs?

Even where the Tribunal is satisfied that the represented person lacks the necessary capacity and is in need of a guardian and an administrator, it shall not make those appointments if the needs of the person could be met by other means less restrictive of the represented person's freedom of decision and action.
In this case, the represented person does not accept that she needs services to live in the community nor does she wish to live in supported accommodation. She does not wish to have an administrator appointed and wants control of her own funds. Her lack of insight into her own situation means that informal supports for either personal decisionmaking or financial decision-making will not provide sufficiently for her proper protection or that of her estate.
The provisions of the MH Act for the supervision and monitoring of the represented person in the community pursuant to a community treatment order are not, in my view, a less restrictive alternative within the meaning of s 4(2)(c) of the GA Act, because the breach of any Community Treatment Order made under the MH Act can lead to the involuntary detention of the person.
The Tribunal is satisfied that there is no less restrictive means available to meet the needs of the represented person.

Plenary or limited appointment

The Tribunal is satisfied that it will be sufficient to meet the needs of the represented person for the guardianship order to include functions limited to where she should live, with whom she should live, the services to which she should have access, and to consent to medical treatment on her behalf.
Because of the range of functions required of the administrator in dealing with the estate of the represented person it is appropriate that the administration order be a plenary one.

Appointment of Public Advocate

Except where the Public Advocate is appointed jointly with another person, the Tribunal may not appoint the Public Advocate as guardian unless there is no other person suitable and willing to act. No other person proposes their appointment as guardian and the Tribunal therefore appoints the Public Advocate as guardian for the represented person.

Period of the order

The Tribunal may make an order for a period not exceeding five years. In this case, because of the longstanding nature of her condition, and the likelihood that the represented person will remain in need of assistance to manage her personal and financial affairs, in the longer term the orders are confirmed for the maximum period of five years

Orders

The Tribunal's orders are:
GAA 1619 of 2008
On an application for review under s 86 of the Guardianship and Administration Act 1990 (WA) of an order dated 19 December 2007 concerning the represented person, DY, determined by Member F Child on 6 March 2009, it is ordered that:
1.The order is confirmed in the following terms: the Public Trustee of 565 Hay Street Perth, Western Australia be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.This order is to be reviewed by 6 March 2014.
GAA 1620 of 2008
On review of a guardianship order under s 84 of the Guardianship and Administration Act 1990 (WA) of an order dated 29 August 2008 concerning the represented person, DY, determined by Member F Child on 6 March 2009, it is ordered that:
1.The order be confirmed in the following terms: the Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited guardian for the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of 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 6 March 2014.

I certify that this and the preceding [94] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER