E
[2017] WASAT 27
•31 JANUARY 2017
E [2017] WASAT 27
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 27 | |
| 06/02/2017 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:4150/2016 | 25 JANUARY 2017 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 31/01/17 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Public Advocate appointed as guardian Public Trustee appointed as administrator | ||
| B | |||
| PDF Version |
| Parties: | E |
Catchwords: | Guardianship and administration Multiple sclerosis Neuropsychological assessment Deficits in memory and executive functioning Progressive conditions Mental disability Reasonable judgments Guardian appointed Administrator appointed |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 44(5), s 45, s 64, s 65, s 68, s 69, s 84, s 97(1)(b)(iii) |
Case References: | Nil |
Summary | E, a 49-year-old woman with multiple sclerosis lived in her home with significant support funded through the National Disability Insurance Scheme.,Applications for the appointment of a guardian and the appointment of an administrator of E's estate were made by the agency coordinating the services provided to E.,The concern of the applicant and the agency providing care services to E was that she no longer appeared to be capable of managing her estate, had significant debts and was subject to ongoing pressure from creditors.,A further concern was that the agency providing care services was at the limit of its capacity relative to the funding available and that E was not making appropriate medical decisions regarding the ongoing treatment of her illness.,E was a fiercely independent person determined to continue to make her own personal and financial decisions.,A neuropsychological assessment showed that E's verbal abilities masked underlying deficits in her memory and executive functioning. Her ability to retain information and use that information to weigh up the consequences of alternative decisions was compromised. Moreover this appeared to be a progressive decline consistent with the advance of the multiple sclerosis.,The deficits in cognition most clearly manifested in E's management of her estate. The Tribunal found that she was no longer able to consistently remember the extent of the debts that she had incurred and was unable to organise and plan the orderly repayment and ongoing management of those debts.,The Tribunal also found that the cognitive deficits assessed by the neuropsychologist affected other areas of E's life.,The areas identified were those of E's future accommodation, the ongoing provision of care through funding from the National Disability Insurance Scheme and the treatment of her multiple sclerosis.,The Tribunal appointed the Public Trustee as the administrator of E's estate and the Public Advocate as her limited guardian to make decisions concerning her future accommodation, provision of care services and her medical treatment. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : E [2017] WASAT 27 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 25 JANUARY 2017 DELIVERED : 31 JANUARY 2017 PUBLISHED : 6 FEBRUARY 2017 FILE NO/S : GAA 4150 of 2016 MATTER : E
- Represented Person
Catchwords:
Guardianship and administration Multiple sclerosis Neuropsychological assessment Deficits in memory and executive functioning Progressive conditions Mental disability Reasonable judgments Guardian appointed Administrator appointed
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 44(5), s 45, s 64, s 65, s 68, s 69, s 84, s 97(1)(b)(iii)
Result:
Public Advocate appointed as guardian
Public Trustee appointed as administrator
Summary of Tribunal's decision:
E, a 49-year-old woman with multiple sclerosis lived in her home with significant support funded through the National Disability Insurance Scheme.
Applications for the appointment of a guardian and the appointment of an administrator of E's estate were made by the agency coordinating the services provided to E.
The concern of the applicant and the agency providing care services to E was that she no longer appeared to be capable of managing her estate, had significant debts and was subject to ongoing pressure from creditors.
A further concern was that the agency providing care services was at the limit of its capacity relative to the funding available and that E was not making appropriate medical decisions regarding the ongoing treatment of her illness.
E was a fiercely independent person determined to continue to make her own personal and financial decisions.
A neuropsychological assessment showed that E's verbal abilities masked underlying deficits in her memory and executive functioning. Her ability to retain information and use that information to weigh up the consequences of alternative decisions was compromised. Moreover this appeared to be a progressive decline consistent with the advance of the multiple sclerosis.
The deficits in cognition most clearly manifested in E's management of her estate. The Tribunal found that she was no longer able to consistently remember the extent of the debts that she had incurred and was unable to organise and plan the orderly repayment and ongoing management of those debts.
The Tribunal also found that the cognitive deficits assessed by the neuropsychologist affected other areas of E's life.
The areas identified were those of E's future accommodation, the ongoing provision of care through funding from the National Disability Insurance Scheme and the treatment of her multiple sclerosis.
The Tribunal appointed the Public Trustee as the administrator of E's estate and the Public Advocate as her limited guardian to make decisions concerning her future accommodation, provision of care services and her medical treatment.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Introduction
1 E is a 49 year old woman who suffers from multiple sclerosis (MS). She lives in her own home with significant support through the National Disability Insurance Scheme (NDIS).
2 E has a brother, B and a sister, M.
3 Applications have been made in respect to E for the appointment of a guardian and the appointment of an administrator of her estate (applications). The applications are made pursuant to the Guardianship and Administration Act 1990 (GA Act).
4 The applicant is the agency which coordinates the care that E receives through NDIS (applicant).
5 Another agency provides the bulk of the care for E in her home (service provider).
6 The Tribunal referred the applications to the Public Advocate pursuant to s 97(1)(b)(iii) of the GA Act.
7 The hearing of the applications took place on 25 January 2017 and was attended by E, B and M, the applicant, the Director of the service provider, Dr B (neuropsychologist) and a representative of the Public Advocate (Public Advocate).
8 E was assisted by an advocate.
9 The decision was reserved.
Relevant legislation
10 The primary concern of the Tribunal is the best interests of E: s 4(2) of the GA Act.
11 In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of E as expressed, in whatever manner, at the time, or as gathered from E's previous actions: s 4(7) of the GA Act.
12 E is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
13 Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for E unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; 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 interests of her own health and safety or for the protection of others.
14 Under s 64(1)(a) of the GA Act the Tribunal cannot consider appointing an administrator of the estate of E unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
15 Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
16 If a finding of incapacity is made in respect to E, the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of E can be met in a manner less restrictive of her freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
17 If the Tribunal decides that E is in need of guardianship and administration orders, it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
18 As to the authority given to a guardian, if a limited order is sufficient to meet the needs of E then a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on E: s 4(5) and s 4(6) of the GA Act.
The evidence concerning E's capacity
19 The Tribunal has before it reports and documents from a range of sources. They are, in chronological order, as follows:
• Dr S, Neurologist, from June 1996 to November 2007;
• June 2013, physiotherapy assessment;
• November 2016, Dr B, neuropsychologist;
• January 2017, therapy service;
• January 2017, Director of the service provider;
• January 2017, Public Advocate.
20 In the documents provided by Dr S, neurologist, it is noted that E was diagnosed with MS in 1996 and suffered a significant relapse in 2001. In 2006 Dr S stated that the disease had probably moved from the relapsing, remitting phase into the progressive phase and it was likely that E would have increased disability over time and need to spend more time using a wheelchair.
21 The physiotherapy assessment from 2013 states that at that time E was required to be fully hoisted for all transfers and was wheelchair dependent. She was said to fatigue easily and needed carers for all transfers.
22 In the report from the therapy service, it is stated that E requires support with all aspects of daily living such as dressing, showering and meal preparation. She is said to use a manual wheelchair and relies on other equipment and assistive technology to complete tasks within the home. She is reported to manage her own finances, however, is considered to be at risk of financial abuse as she will provide her card to various people and does not consider the risk associated with this. The therapy service reports that E appears to lack insight into the impact of her condition on her functioning and this is worsening. She does not always follow the recommendations of therapists and makes decisions which place her at risk of injury. She has declined the consideration of some equipment that would be beneficial for her, for example, the use of a power wheelchair and use of an overceiling hoist in her bedroom. Therapists have observed E displaying poor shortterm memory, such as forgetting appointments or previous discussions, as well as demonstrating difficulty with insight and judgment into how her condition is affecting her functioning.
23 The service provider states that E's memory appears to be getting worse in respect to remembering conversations and details, for example, she makes repayment arrangements with creditors that are not followed through, and in recent months she has been prone to repeating personal care routines in the morning. E is said to no longer effectively have any physical ability and has also developed a sight impairment, such that it is very difficult for her to read written material. Her lack of mobility is considered to place her at a risk because she is often in her home on her own. The service provider states that E becomes very anxious in most situations. It is the view of the service provider, however, that E is capable of understanding medical advice but chooses not to follow it, preferring and believing alternate therapies work better for her. Because of her various disabilities, the service provider considers E to be at risk of financial abuse.
24 The Public Advocate interviewed E on 18 January 2017. The following was observed. E is immobile, wheelchair dependent and relies on her carers for virtually all tasks. At the interview she was vague about her finances including bills and debts. She acknowledged that she needs help with her finances but is reluctant to give anyone control or authority to manage this without her instructions. The Public Advocate formed the view that she downplayed the seriousness of her financial situation and appeared to lack insight into her financial circumstances. However, the Public Advocate formed the view at the interview that E seemed to understand what she was being told and could communicate appropriately. She is reported to have said that she does not believe that she has any cognitive deficits, is able to make her own personal and financial decisions, and requires assistance principally because of her physical limitations.
25 In oral evidence, the Public Advocate reiterated the concern obtained at the interview in January 2017 that E is vague concerning the extent of her financial situation and that she requires prompting to gain knowledge of her indebtedness.
26 B, the brother of E, states that he has observed deterioration in E's functioning over many years, given the progressive nature of her MS. He says that prior to her illness, E was a teacher and very capable of dealing with large numbers of children. However, he finds her not to be as rational as she once was in her decisionmaking and that she now has a tendency to be reactive rather than having the ability, as previously, to think ahead about matters. B says that whilst he respects the views of E in relying on alternative therapies for the treatment of her MS, he remains cynical about those therapies and is concerned that she no longer has the capabilities to research the efficacy of those treatments and remains fixed in her idea that she can be cured by them.
27 In her written report Dr B, neuropsychologist, states that on a review of the relevant literature the following can be said of MS. It is a chronic degenerative, neurological disease of the central nervous system. Although some people diagnosed with MS when treated have no further episodes, there are three different patterns which represent the common manifestations of the disease. They are relapsing/remitting MS, secondary progressive MS and primary progressive MS. Sufferers of MS have common symptoms many of which affect cognition and performance in neuropsychological testing. Cognitive difficulties may affect between 40% to 60% of MS patients in their lifetime and those with secondary progressive MS have been found to exhibit worse cognitive impairment than those with remitting/relapsing or primary progressive MS.
28 Cognitive difficulties identified in sufferers of MS include reduced information processing speed, difficulty with sustaining attention, problem solving difficulties, deficits in executive functioning, problems acquiring new skills, reduced longterm verbal memory and working memory capacity and reduced visual short-term, delayed recall and recognition memory. MS sufferers are also prone to mood disorders such as depression and anxiety.
29 In her oral evidence, Dr B states that although the testing environment was difficult (testing took place in E's home) she was able to form an opinion on some of the deficits in E's cognition.
30 Dr B states that the principal deficit faced by E is in her memory. She now has problems with learning new information, storing it and using it at a later time. Within a day or so, E will not be able to retrieve information upon which she based an earlier decision and, if any retrieval occurs, the information will likely not be accurate. E has difficulties storing information and may not have access to information previously used in decisionmaking.
31 Dr B states that E has also developed problems with her executive functioning. Dr B states that executive functioning is the ability to maintain attention to a task or tasks, to plan and organise, to regulate activities and sustain emotional control. This higher level of functioning requires a good deal of cognitive resources and requires the ability to for example, suppress irrelevant responses, to access relevant memory and to stop repetition.
32 Although Dr B states that she would have preferred to further test executive functioning, nonetheless, her opinion is that E is in the impaired range for her memory and in the very impaired range for her executive functioning.
33 Dr B states that a person may sustain their premorbid level of IQ but develop deficits in executive functioning however, she was not able to test this fully with E.
34 Dr B states that E is very good at repetitive tasks, but in situations where more information is given or required, she becomes overwhelmed which leads to anxiety, a reduction in attention and a consequent reduced ability to complete the task.
35 In her written report, Dr B states that despite intact verbal reasoning ability and receptive and expressive language skills, E does not currently have the capacity to manage her daytoday affairs successfully. In addition, E may not have the capacity to adequately weigh evidence regarding her treatment and to reason through information. Dr B uses the example of the belief held by E that despite at least 10 years in a wheelchair and no improvement in her current physical capabilities, she will walk again with the benefit of 'chi healing' on which she is said to expend considerable funds.
36 Dr B opines that a further decline in E's cognitive capacity may be expected.
37 E does not accept the opinion of Dr B and argues that the conditions under which the testing took place in her home were far from ideal and do not accurately reflect her abilities. She says she wishes to seek further neuropsychological testing by way of a second opinion.
The financial circumstances of E
38 The best estimate of the estate of E is in the report of the Public Advocate. E was unable to give a full account of her estate and needed to be prompted in her evidence as to the level of debts she purportedly has.
39 The Public Advocate states that an approximation of the estate was able to be compiled from a number of sources.
40 E has a shared equity arrangement with Keystart in the ownership of her property. She holds a 73/100 share in the property supported by a mortgage.
41 E's income is from income protection insurance and child support for her daughter.
42 The Public Advocate states that the service provider has advised that E has between $20,000 and $30,000 of debt. The debt is said to principally comprise of outstanding school fees of approximately $5,000, her share of a dividing fence $9,000, income tax $9,500, water rates of about $3,300 and electricity of approximately $1,000 (threatened disconnection). She is said to be in arrears in her mortgage of approximately one month and purportedly has debts of unknown amounts to Baycorp, Pioneer Credit, Radio Rental, Powerfit Equipment, and St John Ambulance.
43 In her oral evidence, E says that it is her understanding that she has an outstanding electricity account of about $3,000, water rates $2,000, likely one year of Shire rates and is one month in arrears on her mortgage.
44 As already mentioned, E was unable to state the other debts she has until prompted in her evidence. She says that she has made repayment arrangements with her creditors and believes that she is uptodate with those arrangements.
45 E says that she relies on the service provider carers to make her aware of the paperwork that is sent to her, given her sight impairment, and also to act on her instructions as to what payments should be made. She takes the view that she does not require financial counselling assistance, but does need consistent help with documentation which she contends she has not been given because of the ongoing changes to carers.
46 The applicant and service provider state that they do not agree that E is maintaining repayment arrangements with creditors and that often arrangements are not honoured by her, resulting in increased contact from debt collection agencies.
47 The Public Advocate states that E receives approximately $250,000 per year in funding from NDIS. The applicant says that the bulk of that funding is managed through the service provider and that E selfmanages an amount of money for some personal supplies. The applicant states that E has been accused by NDIS of fraudulently using the funds she manages for matters other than what is permitted. This is disputed by E who says that any issue about the use of NDIS funds occurred at a time when the scheme's payment portal was not operating. She says she does not remember receiving a letter from NDIS alleging the fraudulent behaviour and it was not made known to her by the carers.
48 The Public Advocate states that E appears to be struggling to keep track and organise her finances and appears unable to adhere to a realistic budget. Mention is made particularly of the alternative treatment that E has used for many years ('chi healing') which is costing her about $700 per month. It is alleged that E has allowed the alternative therapy practitioner to use her ATM card to withdraw his fees. E states that she has recently discontinued seeing that practitioner and now mainly sees an iridologist.
49 The Public Advocate states, supported by the applicant and service provider, that E is very anxious about her financial situation and appears to be extremely stressed at most times, due to her lack of funds and the pressure of her debts.
The applications
50 The applicant and service provider state that the ability of E to sustain living in her own home is in a fragile state. The service provider states that although E receives substantial funding through NDIS, the limits of that funding are being tested by E's significant care needs and the unfunded time that is being given to assist her with her very difficult financial circumstances.
51 The applicant states that the service provider is the third or fourth agency that has been involved with E's care and this is testament to the difficulties that are commonly experienced in providing E with sufficient support to maintain her in her home.
52 A number of concerns are expressed by the applicant and service provider. It appears the most pressing is the state of the finances of E and her reported indebtedness, which is said to be chronic in nature and which remains unresolved as repayment arrangements are not honoured and creditors continue to apply pressure.
53 The applicant proposes that an administrator be appointed to manage E's estate.
54 The applicant is of the view that the service provider is doing a very good job in difficult circumstances in providing care for E. However, this arrangement is in jeopardy and the applicant contends that E is vulnerable to influence from other less experienced care providers through the NDIS process.
55 It is the opinion of the applicant that the service provider should remain in place and that a guardian be appointed to ensure this occurs.
56 The applicant states that should the care arrangements of E not be sustainable because of the progression of her MS, then alternative accommodation may need to be considered in the future. The applicant suggests a guardian may also be needed for this matter.
57 The applicant mentions E's use of alternative treatment and her alleged reluctance to use more standard treatment for her MS. It is a view of the applicant that E does not understand the level of her treatment needs and that she refuses further investigation because she does not want to know the extent of the progression of her illness. The applicant refers to the evidence of Dr B and proposes that consideration be given to a guardian being appointed to make treatment decisions for E.
58 The Director of the service provider states that the agency will do all that it can to keep E in her home, but that it is difficult to balance her care needs with the funding that is available. The Director expresses concerns about the safety of E when she is left alone in her home given her profound physical disabilities.
59 The Director states that E has become more anxious and care staff have noticed increasing levels of muscle spasms and cramp. However, E refuses to use a safety strap in her wheelchair which as a consequence places her at risk of falling out of her chair.
60 Both the brother B and sister M are of the view that E is in need of an administrator of her estate. However, M does not believe that E is in need of a decision maker for personal matters.
61 Neither B nor M propose themselves as guardian and administrator should orders be made.
Further evidence and submissions of E
62 E states that when she was first diagnosed with MS, Dr S told her that there was no particular treatment for the disease and that she should consider doing what she felt most comfortable with. In that respect, E says that she chose to have alternate therapies and she continues to believe that they have assisted her in dealing with her illness.
63 E contends that she is not in need of a guardian. She says that if she needs to see a doctor then she will do so. She says that she is happy to have an MRI scan (Magnetic Resonance Imaging), if that is considered necessary. As regards the statement of the service provider that she is suffering increased muscle spasms, E states that has not occurred recently and she takes herbal medicine to alleviate those symptoms which can occur as a reaction to stress.
64 E submits that she is not in need of an administrator of her estate, that she has her debts under control, and in her oral evidence said that she would not be averse to obtaining financial counselling on the condition that she received that service in her home.
The Public Advocate
65 The Public Advocate submits that E is in need of oversight, care or control in the interests of her own health and safety and is in need of a guardian.
66 The Public Advocate notes that the service provider is struggling to provide the necessary care with the funding received through NDIS, that E does not always follow the recommendations of therapists and has declined the use of some equipment that would be beneficial to her. The Public Advocate also questions E's use of alternative treatments for her MS.
67 The Public Advocate expresses concern at E often being at home alone for long periods and with her immobility would find it very difficult to protect herself should an incident occur, particularly now that her vision is very poor.
68 The Public Advocate further notes the problematic nature of the relationship between E and her daughter who lives with her and that the daughter is dependent on E to maintain her accommodation.
69 The Public Advocate proposes that she be appointed limited guardian to make decisions about E's service provision and questions whether a guardian is required to make treatment decisions or, at the very least, to have access to medical information to support the services function.
70 The Public Advocate acknowledges E's willingness to have further neuropsychological testing, however, the waiting list for the public provision of this service is at least six months.
71 The Public Advocate states that the service provider is overburdened in assisting E with her finances and that she struggles to organise her financial affairs. It is submitted that if there is insufficient evidence for the making of an administration order, then the Tribunal should consider making an order under s 65 of the GA Act giving the Public Trustee the authority to secure and protect E's estate, pending the provision of further capacity information.
Discussion of the issues
72 E suffers from MS which is a degenerative neurological condition. She was first diagnosed in 1996 and the illness has progressed significantly since that time.
73 I am satisfied that E has a mental disability for the purposes of s 3 of the GA Act, the MS being in the nature of an acquired brain injury.
74 Despite the fact that E requires assistance with all her activities of daily living, she is a fiercely independent person. She is able to strongly articulate her views and wishes concerning the treatment of her illness, her living conditions and the management of her financial affairs.
75 I do not underestimate the debilitating nature of E's illness and her determination to continue to exert her independence as much as possible.
76 Unfortunately, E now has a tenuous hold on that independence and is able to continue to live in her home only with the support of substantial funding from NDIS to provide the necessary care.
77 The provision of that care is undermined somewhat by the additional hours (unfunded) that the service provider has to spend dealing with E's financial problems.
78 The evidence of Dr B, neuropsychologist, is that E is becoming increasingly overwhelmed with her circumstances.
79 Despite the difficulties of undertaking the cognitive assessment of E, I accept the evidence of Dr B consistent as it is with the reports of the service provider and therapy service.
80 The assessment of Dr B demonstrates that E's verbal abilities mask underlying deficits in her memory and executive functioning. Her ability to retain information and use that information to weigh up the consequences of alternative decisions is compromised. Moreover, this appears to be a progressive decline consistent with the advance of the MS.
81 The deficits in cognition most clearly manifest in E's management of her estate. I am satisfied, on the evidence, that she is no longer able to consistently remember the extent of the debts that she has incurred, and is unable to organise and plan the orderly repayment and ongoing management of those debts.
82 In the words of the GA Act, E is no longer able to make reasonable judgments concerning her estate and as a consequence her estate is at risk.
83 Despite the attempts of the service provider to manage that risk by giving assistance to E, the precarious nature of her estate has not reduced, but appears to have worsened over time.
84 I am satisfied that there is not currently a less restrictive alternative to the appointment of an administrator for which there is a need in order to secure and manage E's estate, which includes the property in which she and her daughter live.
85 I am of the view that it is in E's best interests that the Public Trustee be appointed the plenary administrator of her estate.
86 As part of the administration order, I will authorise the Public Trustee to expend up to a total amount of $250 per annum on gifts on behalf of E.
87 The cognitive deficits assessed by Dr B also affect, in my view, other areas of E's life.
88 The areas identified in the evidence are those of E's future accommodation, the ongoing provision of care through funding from NDIS and the treatment of her MS.
89 The evidence shows and I find that E is 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.
90 I further find that in particular areas of her personal life, E is unable to make reasonable judgments.
91 It is selfevident to observe that E knows her illness better than anyone. She decided early in the diagnosis of the illness to concentrate on alternative therapies to deal with the effects of the MS and has continued on that course.
92 I note Dr B's observation that E continues to believe, despite evidence to the contrary, that she will walk again with the benefit of 'chi healing', although in her evidence E said that she has recently discontinued that treatment.
93 There is no evidence before the Tribunal to indicate what the standard treatment for MS is at the stage to which it has progressed for E. Of concern, however, is that E appears not to have regular neurological review and the report of the therapy service is that she appears to lack insight into the impact of her condition on her functioning, does not always follow the therapists' recommendations and makes decisions which place her at risk of injury.
94 I am troubled that the decision of E to continue with alternative therapies (currently iridology), appears not to be informed by comparison with whatever the standard treatment currently is in the management of MS.
95 It is a view of Dr B, which I accept, that E can expect further cognitive decline in the progression of her MS.
96 I am satisfied, on balance, that E is no longer able to make reasonable judgments concerning the treatment of her MS and that she is in need of a guardian for this purpose and attendant medical matters.
97 A critical factor in maintaining E in her home is the provision of appropriate care, consistently given. It is the view of the applicant, which I accept, that the service provider currently achieves this, albeit that service provision is under pressure.
98 I am satisfied, on the evidence, that E does not have the cognitive capacity to consider the current provision of services in light of alternatives that may become available and will need to be considered. There is the related risk that E will discontinue with the service provider without adequate consideration of the effects on her care. I note that the service provider is the third or fourth agency that has been given the task of providing care to E.
99 I find that E is unable to make reasonable judgments in respect to the provision of services for her to be able to continue to live in her home and is in need of a guardian.
100 It is the wish of E and all those who currently assist her that she remain living at home for as long as possible, despite the progression of the MS and increased care needs that result. Realistically, a decision as to how long that can be maintained will eventually need to be made.
101 For the same reasons that I have given to determine that E is in need of a guardian for other matters, I find also that she is in need of a guardian to make decisions about her accommodation in the context of her progressive illness and its increasingly debilitating physical and mental effects.
102 Given that there is no one willing to act as E's guardian, I must appoint the Public Advocate as her limited guardian to make decisions regarding her treatment, service provision and accommodation: s 44(5) of the GA Act.
103 The orders that I have made places a significant restriction on what E considers to be her right to independent decisionmaking. The orders reflect my view of what is in her current best interests.
104 I have set the review date for the guardianship and administration orders for 12 months, given that E has indicated she will seek further neuropsychological assessment which, on the evidence, will take at least six months to arrange.
Orders
The Tribunal declares that the represented person, [E];
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b) is in need of an administrator of her estate,
(c) is incapable of looking after her own health and safety;
(d) is unable to make reasonable judgments in respect of matters relating to her person;
(e) is in need of oversight, care or control in the interests of her own health and safety; and
(f) is in need of a guardian,
and the Tribunal orders that:
1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2. The administrator is authorised to expend up to a total amount of $250 per annum on gifts on behalf of the represented person.
3. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a) To decide where the represented person is to live, whether permanently or temporarily;
(b) To decide with whom the represented person is to live;
(c) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person; and
(d) To determine the services to which the represented person should have access.
4. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
5. The administration and guardianship orders are to be reviewed by 31 January 2018.
I certify that this and the preceding [104] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, SENIOR MEMBER
0
0
1