ED
[2020] WASAT 34
•27 FEBRUARY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: ED [2020] WASAT 34
MEMBER: JUSTICE PRITCHARD, PRESIDENT
DR B DE VILLIERS, MEMBER
DR E MARILLIER, MEMBER
HEARD: 18 FEBRUARY 2020
DELIVERED : 27 FEBRUARY 2020
PUBLISHED : 2 APRIL 2020
FILE NO/S: GAA 4600 of 2019
K
First Applicant
J
Second Applicant
AND
ED
Represented Person
Catchwords:
Guardianship and administration - Review by Full Tribunal of determination of single member to appoint limited guardian - Suitability for appointment as contact guardian - Contact guardian appointed - Considerations relevant to best interests of represented person in relation to contact with others
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43, s 44, s 51, s 87
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 30, s 31
Result:
Orders under review set aside
Contact guardian appointed
Category: B
Representation:
Counsel:
| First Applicant | : | Mr A Wilson |
| Second Applicant | : | Mr A Wilson |
| Represented Person | : | N/A |
Solicitors:
| First Applicant | : | Frichot Lawyers |
| Second Applicant | : | Frichot Lawyers |
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
A [2018] WASAT 46
AT and LT [2014] WASAT 21
GC and PC [2014] WASAT 10
LP [2020] WASAT 25
RM [2020] WASAT 4
SH and EJH [2013] WASAT 176
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered orally and have been taken from the transcript of the hearing. They have been edited to make necessary corrections or annotations for the purposes of correcting grammatical errors or infelicity of expression.)
Introduction
K and J, the daughters of ED, made an application for a review (Review Application) pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act). They seek the review of a decision made by a single Member of the Tribunal on 2 December 2019 (Original Decision).
On 14 November 2018, a single Member of the Tribunal made guardianship orders in which she declared that ED was incapable of looking after his own health and safety, was unable to make reasonable judgments in respect of matters relating to his person, was in need of oversight, care or control in the interest of his own health and safety and was in need of a guardian. The Member made orders that K and J be appointed jointly as guardians in respect of ED with the following functions: 'to decide where the represented person is to live, whether permanently or temporarily; to decide with whom he is to live; to make treatment decisions for him; and to determine the services to which the represented person should have access'. In addition, the Member appointed the Public Advocate to be a limited guardian (contact guardian) for ED with the following function: 'to determine what contact, if any, the represented person should have with others and the extent of that contact' (contact functions).
The orders made by the Member on 14 November 2018 required that that part of her orders, by which she appointed the Public Advocate the contact guardian, be reviewed by 14 May 2019.
In the decision on that review - the Original Decision - the Member declared that ED was incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, in need of oversight, care or control in the interest of his own health and safety and was in need of a guardian. The Member made an order that the Public Advocate be appointed the limited guardian of the represented person with the contact functions set out in [2] above. The Member ordered that that order - in relation to the contact guardian - be reviewed by 14 November 2023.
It is that Original Decision which the Tribunal, as now constituted, has been asked to review.
In summary, the position is that, while two limited guardianship orders have been in place in respect of ED since 14 November 2018, only one of those - the Original Decision concerning the appointment of the Public Advocate as the contact guardian - is the subject of this review.
For the reasons which follow, and it must be said, not without some hesitation, we have concluded that K and J should be appointed as limited guardians to perform the contact functions for ED, in addition to the other functions they are authorised to perform as his guardians.
The nature of the review
Before dealing with the issues that are the subject of the present review, it is appropriate to note the nature of the review itself. Section 17A(1) of the GA Act permits any party who is aggrieved by a determination made by the Tribunal, consisting of one Member, to request the President to arrange for a Full Tribunal to review the determination.
An express right of review is granted to any party who is aggrieved by a decision of a single Member. Reviews under s 17A of the GA Act thus come within the Tribunal's review jurisdiction.[1]
[1] Cf LP [2020] WASAT 25 [59] - [83] (which was published after the present decision was delivered extemporaneously).
However, unlike most other reviews within the Tribunal's jurisdiction, the review is of a decision of a Member of the Tribunal. As a result, some of the provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act) have little or no practical role to play in reviews of this kind, in contrast to other kinds of reviews dealt with by the Tribunal.[2]
[2] See, eg, SAT Act s 30 and s 31.
As the Tribunal is exercising its review jurisdiction, the hearing of the Review Application was conducted as a hearing de novo. Consequently, the hearing was not confined to the matters that were before the Tribunal at first instance but involved the consideration of new material, including evidence the Tribunal received in the hearing of the Review Application.[3]
[3] SAT Act s 27(1).
The purpose of the review was to produce the correct and preferable decision at the time of the decision on the review.[4]
[4] SAT Act s 27(2).
The issues for the Tribunal on this review are whether a guardian with contact functions should be appointed and, if so, who that contact guardian should be. Before turning to those issues, it is appropriate to set out some key aspects of the factual background.
Factual background
ED is 75 years of age. K and J are his daughters. He also has a son, JD.
It is uncontentious that in October 2017 ED suffered a stroke. In addition, he has been diagnosed as suffering from dementia, caused at least in part by Alzheimer's disease. In November 2017, he was assessed as having cognitive impairment. His mental capacity deteriorated in the following 10 months. He was assessed by Dr MC on 30 August 2018 and again on 4 September 2018. She described him as showing a generalised decline in cognition 'with severe impairments'.[5]
[5] Hearing book 27-28.
ED married A in September 2003. She was his second wife. His first wife is deceased.
A and ED resided together until 28 July 2018.
In late May 2018, A commenced property settlement proceedings in the Family Court of Western Australia. Her position is that, in the months prior to that time, ED's mental capacity had been deteriorating, and there were escalating negative family dynamics which led to her becoming concerned about her financial position in the event that ED predeceased her. A claims that it was her wish at that time to remain married to ED.
ED's children have a different perspective in relation to those matters, but it is unnecessary for us to delve into the situation beyond noting these different perspectives.
On 28 July 2018, ED returned to his home, where he was living with A, after having been out with J and another family member. He told A that he was leaving, and thereafter he resided with K. In November 2018, an investigator from the Public Advocate met with ED at which time ED stated that he was very happy living with his daughter and family. In March 2019, following further cognitive decline, ED moved into the dementia wing of an aged care facility (facility), and he has resided there since.
Subsequently, K and J were appointed ED's case guardians by the Family Court for the purposes of the Family Court proceedings. On 2 July 2019, a property settlement was finalised between A and ED (represented by his case guardians). As part of that settlement, A agreed to forego any claims to any part of ED's estate and superannuation on his death. She also acknowledged that his case guardians would apply for a divorce as soon as possible, and that she would not object to the divorce application.
A and ED were pronounced divorced on 13 November 2019. A says that she did not want to separate from ED and that the separation was carried out by his family under duress, as was the divorce.
A's version of events was that, since ED ceased living at their home, she has had limited contact by text and phone, and tried to contact him several times unsuccessfully. A claims that, on 2 October 2018, she received an email from K, after ED underwent a medical procedure, telling her that he had specifically requested that she not visit or contact him regarding the surgery.
Family members have produced evidence as to ED's wishes, expressed around this time, in relation to contact with A. For example, in a statement K provided, which was updated after 14 November 2018, she included two handwritten notes made by ED. In the first of those notes, dated 5 September 2018, ED stated: 'I want a divorce from [A]. I want a divorce ASAP'.[6] In the second note (which K said was written in August or September 2018) ED said 'I hope to go in the near future. The last two weeks have been horrible for me mainly due to the horrible attitude of my so called wife. I hope to join my real wife in the very near future'.[7]
[6] Hearing book 255.
[7] Hearing book 259.
ED was also recorded on video expressing his view that he did not wish to reside with A. (A copy of that video was also provided to the Tribunal).
We note, however, that Dr MC's report, which found significant deficits in ED's cognitive capacity, predated some of this evidence.
ED's recent contact with A, and with other visitors
As mentioned earlier, since March 2019, ED has resided in the dementia wing at the facility. He is visited there by JD and his family, and K. J appears to visit less regularly.
Since ED has been living at the facility, A says she has made multiple attempts to see him, but at times has not been permitted to do so, apparently due to some uncertainty about her authority to visit. It appears that ED has been visited at least twice by A since he has been living at the facility. The first visit was on 28 August 2019. A reported that ED did not remember her but 'we had a very happy time together',[8] and she wished to continue seeing him.
[8] Submission by A, 31 August 2019.
Another visit took place on 23 September 2019 at a time when JD's wife and daughter also visited. That visit has given rise to controversy because A was heard to tell ED that she was his wife, and she kissed him once on the lips as she went to leave. JD has since described that conduct as amounting to abuse in the form of unsolicited intimate contact and has reported it to the police.
The representative of the Public Advocate who attended the review hearing before us advised that there had been no reports from the facility that ED was distressed by A's visits. It appears that ED found these visits pleasant and expressed the view that he had enjoyed the visit from 'the lovely lady'.
ED is also visited at the facility by longstanding friends. Those visits are arranged by K and J. The evidence suggests that there are times when ED does not recognise family and friends at all. On other occasions, he recognises that visitors are familiar but may not recall precisely who they are. On yet other occasions, he has a greater recollection of who his visitors are.
Appointment of guardian
We turn now to the criteria in the GA Act for the appointment of a guardian. The Tribunal must be satisfied as to the matters set out in s 43 of the GA Act, namely that the proposed represented person is over 18 years of age; and is either incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, or in need of oversight, care or control in the interest of his own health and safety or for the protection of other persons; and is in need of a guardian.
If the Tribunal is satisfied that those requirements are met, the Tribunal is required to consider subsidiary questions such as that which arises in this case, namely who should be appointed the guardian.
Principles governing proceedings under the GA Act
In dealing with this Review Application, we bear in mind that proceedings under the GA Act require the Tribunal to observe the principles set out in s 4 of the GA Act. The primary concern of the Tribunal is the best interests of the represented person.[9]
[9] GA Act s 4(2).
In addition, every person is presumed to be capable of, amongst other things, 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.[10] That important presumption applies in respect of every application under the GA Act, including the present Review Application. In considering any matter relating to a represented person, the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the person concerned.[11]
[10] GA Act s 4(3).
[11] GA Act s 4(7).
We note also that a plenary guardian shall not be appointed if the Tribunal is of the opinion that the appointment of a limited guardian would be sufficient to meet the needs of the proposed represented person.[12] In addition, any order appointing a limited guardian should be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the represented person's freedom of decision and action.[13]
The evidence before the Tribunal on the Review Application
[12] GA Act s 4(5).
[13] GA Act s 4(6).
We turn to the evidence adduced in the Review Application. ED did not attend the review hearing. The evidence suggests that he would be unlikely to be in a position to contribute to the discussion of the issues. However, there was a considerable volume of evidence about the wishes he had expressed in the past, at least in so far as they concerned contact with A.
K and J both attended the review hearing and answered a number of our questions. They were represented by their solicitor who provided written and oral submissions on their behalf.
A representative of the Public Advocate also attended, and gave evidence and made submissions.
The Tribunal is grateful for the assistance of these witnesses.
Also in evidence before the Tribunal were a number of documents and a copy of the video to which we earlier referred. The Tribunal also had regard to all of the materials referred to in the earlier hearings under the GA Act concerning ED.
In the course of the review hearing, we identified for the parties the documents which we regarded as particularly relevant to the issues raised by the Review Application. It is unnecessary to set that list out again. We also invited the parties to draw to our attention any other documents on which they wished to rely. The documents to which we had particular regard included reports from ED's treating medical practitioners, reports from the Public Advocate, statements from K, and correspondence to the Tribunal from A.
Consideration of criteria in s 43(1) of the GA Act
We turn to consider the criteria in s 43(1) of the GA Act.
ED has attained the age of 18 years. There is no question he is incapable of looking after his own health and safety. He is also unable to make reasonable judgments in respect of matters relating to his person, and is in need of oversight, care or control in the interest of his own health and safety or for the protection of others. It is apparent that that is the case having regard to the medical evidence, in particular the reports of Dr JC of 13 September 2018 and Dr MC of 4 September 2018, and 24 October 2018 and the report from SB, the manager of the facility, dated 29 August 2019.
The next question is whether ED is in need of a guardian. K and J have already been appointed the limited guardians for ED with the authority to decide where he is to live, with whom he is to live, to make treatment decisions and to determine the services to which he should have access. The only question for present purposes is whether ED needs a guardian to make decisions in respect of the persons with whom he should have contact, and the extent of that contact. There is no doubt that he needs a guardian for that purpose.
It is convenient to mention next, having regard to s 4(4) of the GA Act, that we are satisfied that there is no less restrictive means available for contact decisions to be made than by the appointment of a guardian with that contact function. That is because there has been disagreement as to whether A should have contact with ED and there is also a history of family disputes about aspects of ED's situation. A guardian is needed because of the risk that informal family arrangements, which might normally be expected to suffice in relation to contact decisions, may break down and lead to disputes. It would not be in ED's best interests for that to occur.
As noted earlier, s 4(5) of the GA Act provides that a plenary guardian shall not be appointed if a limited guardian would be sufficient to meet the needs of the proposed represented person. The question we are dealing with today concerns only a limited aspect of the range of guardianship functions. No question of plenary guardianship arises.
Who should be appointed the contact guardian?
We turn then to explain our conclusion in relation to the question of who should be appointed the contact guardian in this case.
Section 44 of the GA Act sets out criteria for who may be appointed a guardian. The guardian must be over 18 years of age, must have consented to act, and must, in the opinion of the Tribunal, be a person who will act in the best interests of the proposed represented person, will not be in a position where his interests conflict, or may conflict, with the interests of that person, and who is otherwise suitable to act as the guardian of that person.
In assessing the suitability of a proposed guardian, the Tribunal is to take into account as far as possible the factors set out in s 44(2) of the GA Act, namely:
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person, and with the administrator (if any) of the person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
Relatives are not taken to have a conflict of interest merely by virtue of that fact.[14]
[14] GA Act s 44(3).
While the Public Advocate has been the contact guardian until now, we do not overlook the fact that s 44(5) of the GA Act provides that the Public Advocate shall not be appointed unless there is no other person who is suitable and willing to act.
The question in this case is whether K and J meet the requirements of s 44(1) of the GA Act. There is no doubt that they are both 18 years of age, have consented to act as the contact guardians, and are not in a position where there is a conflict between their interests and those of ED. No issue arises as to their compatibility with an administrator (none having been appointed). We are satisfied that their appointment would be consistent with ED's wishes, given their relationship with him and the fact that, in January 2018, he granted them a power of attorney in respect of his estate.
We mentioned that there was some history of family disputation. That concerned a dispute between JD and his sisters. It is not necessary for us to say more than that we are satisfied, having regard to the documentary evidence, which was confirmed by the evidence of K and J at the review hearing,[15] that those issues now appear to have been resolved. We are therefore satisfied that their appointment as contact guardians would not be inconsistent with the desirability of preserving existing relationships within ED's family.[16]
[15] ts 16, 18 February 2020.
[16] Cf AT and LT [2014] WASAT 21 [30] - [31].
The questions which remain are whether K and J will be able to act in the best interests of ED in respect of contact decisions, whether they will therefore be able to properly carry out the contact guardian function, and thus whether they are suitable to act as the contact guardians for ED.
In this case, those three questions turn on the same suite of issues, namely whether K and J understand what is involved in assessing what would be in ED's best interests in relation to contact with others and, in particular, with A, whether they will be able to move past their own feelings of distrust in relation to A (which appeared to have developed since the Family Court proceedings) and whether they will employ a sufficiently open mind to decisions about what contact with others will be in ED's best interests.
Initially, in the course of the review hearing, K and J gave some evidence which caused us to be concerned about these matters. They told us:
•they would make decisions about contact by reference to the wishes ED expressed when he had capacity;[17]
[17] ts 7, 18 February 2020.
•their father strongly expressed his wish not to have contact with A at around the time of his divorce;[18]
[18] ts 8, 18 February 2020.
•they believed that their father did not want an ongoing relationship with A;[19]
[19] ts 13, 18 February 2020.
•if their father asked to see A, they would allow that to happen;[20]
•they would not ask him if he wanted to see A nor would they ask her if she wanted to see their father;[21]
•they had not had any discussion with their father about A and his feelings for her since he moved into the facility;[22]
•as A and ED are divorced, K and J did not see that theirs was a relationship that was necessary to preserve, so that contact was not required for that purpose;[23]
•they had concerns about contact between A and ED lest she seek intimate contact with him (in view of the fact that she kissed him during a previous visit);[24]
•they also had concerns that ED may not be able to contextualise contact with A,[25] notwithstanding that they did not hold that concern in respect of contact with other friends or family, and despite the fact that ED has only vague memories of friends and sometimes is able only to recognise that their faces are familiar;[26]
•they had concerns that A might say something that would upset their father;[27]
•they did not appear to feel confident that contact with A would be in their father's best interests because they have not been present to witness whether his past visits from her were a source of pleasure or comfort for their father;[28]
•they held these concerns about contact with A despite the fact that there had not been any reports from the facility to the effect that her visits had caused ED any distress;[29] and
•while both K and J strongly denied any suggestion that their own feelings towards A might affect their assessment of whether contact with her was in ED's best interests,[30] they candidly accepted that the 'level of trust' with A was no longer there as a result of what had occurred in the past.[31]
[20] ts 8, 18 February 2020.
[21] ts 14, 18 February 2020.
[22] ts 9, 18 February 2020.
[23] ts 12, 18 February 2020.
[24] ts 10, 18 February 2020.
[25] ts 10, 18 February 2020.
[26] ts 10, 18 February 2020.
[27] ts 11, 18 February 2020.
[28] ts 14, 18 February 2020.
[29] ts 11, 18 February 2020.
[30] ts 12, 18 February 2020.
[31] ts 13 and 19, 18 February 2020.
We asked K and J what they understood was involved in considering the best interests of ED. Their evidence indicated that they were focused on his expression of his wishes as to contact with A, especially his last expression of those wishes, which occurred at around the time of the Family Court proceedings in about 2018.[32]
[32] See, eg, ts 7, 18 February 2020.
They told us that if their father expressed a wish to see A, they would allow that. Initially, however, they appeared to be inclined to the view that, if he did not ask to see A, they would not inquire, and if he did not positively indicate a wish to see her, they would not facilitate contact.[33]
[33] See, eg, ts 8, 18 February 2020.
The difficulty - indeed unreality - of that approach is that ED may no longer be in a position to express his wishes as to whom he would like to have contact with, or to recollect persons he would like to see. Furthermore, in determining what is currently in ED's best interests, the wishes he expressed in 2018 may, at this point, warrant less weight, whereas greater weight may be warranted for the potential benefits to ED from visits from persons who care for him, and whose visits might provide him with comfort or give him joy, even if he does not recollect the precise identity of the visitor. In the case of A, that consideration may take into account the lengthy marriage that she and ED had. There was nothing to suggest that it was a marriage of longstanding unhappiness notwithstanding that it came to a rather sudden end with their separation and divorce.
That is not to suggest that decisions about contact for ED should be based on the wishes of the proposed visitors. Rather, it is to highlight that a visit from a person who seeks to provide comfort to him is a relevant consideration, which should be considered together with all other relevant facts and circumstances, in determining whether contact with that person would be in ED's best interests.
It is apparent that, in facilitating the contact between ED and other longstanding friends or family members, which has occurred to date, K and J have been able to look to wider considerations relevant to his best interests, apart from his expression of his wishes. They confirmed that they took into account the fact that, even if ED had not requested contact with older friends or family, they had recognised that such contact would nevertheless be contact that would provide him with comfort or that he would enjoy.[34]
[34] ts 9, 18 February 2020.
However, as the hearing progressed, and as the Tribunal explored with K and J the variety of factors that may be relevant in considering the best interests of a represented person, we detected a softening in the attitude that they expressed, which we viewed as genuine. They were receptive to the idea that, if independent third parties confirmed that ED enjoyed visits from A, that they would not have a problem with her visiting him.[35]
[35] ts 14, 18 February 2020.
They were receptive to considering ways to alleviate their concerns about any possible adverse effects of contact between ED and A, such as supervised visits,[36] and expressed their willingness to facilitate contact with A, provided that their father did not, at the time of the proposed visit, express a wish not to see her.[37]
[36] ts 18, 18 February 2020.
[37] ts 18, 18 February 2020.
We note that the Public Advocate's representative expressed reservations, with which we agree, that any strict supervision, especially by K and J themselves, of A's visits to ED may detract from his enjoyment of those visits. If, initially, supervision of A's visits was thought to be required, then a guardian would properly consider that supervision by an independent party, or alternatively a mutual friend, would be most conducive to ensuring ED's enjoyment of the visit is preserved.
The evidence given by the Public Advocate's representative was that feedback from the facility was that ED had not been upset by the visits from A, and that staff had been nearby when those visits occurred.[38] The Public Advocate's representative also explained that she discussed with A the need for her to ring the facility to make an appointment to visit ED so that her visits did not clash with family visits. They had also discussed standards of behaviour, including the need for A to refrain from kissing ED, and that she refrain from suggesting that she was married to him.[39] Those concerns have also been raised with the facility with a view to obtaining an undertaking from A that she would respect boundaries in the future, and that the facility would ensure that their staff will monitor the situation when there was a visit so that, if an issue arose, they would identify that. In addition, the facility had advised the Public Advocate's representative that visitors were never left completely alone with residents anyway.[40]
[38] ts 21, 18 February 2020.
[39] ts 21, 18 February 2020.
[40] ts 23, 18 February 2020.
All of these considerations are matters which a guardian, making decisions about contact, must take into account in determining what is in the best interests of the represented person.
It may be that the softening in K and J's position was the result of a greater appreciation of what factors - beyond a previous expression of the wishes of their father - may be relevant to determining what is in his best interests.
In this respect, we note that the obligation on a guardian is to act according to their opinion of the best interests of the represented person, but that that opinion is not to be informed solely by regard to their own subjective views. In GC and PC [2014] WASAT 10 the Tribunal observed that 'the determination by the Tribunal of what is in the "best interests" of the represented person involves an objective assessment having regard to all relevant circumstances. The determination of what is in the represented person's best interests is informed, but not dictated by the views and wishes of that person.'[41] That observation applies equally to a guardian's assessment of what is in the best interests of the represented person.
[41] GC and PC [2014] WASAT 10 [27].
The need to take into account wider considerations apart from the represented person's wishes is apparent from the list of factors set out in the list in s 51(2) of the GA Act, which is not exhaustive. The wishes of the represented person are one, but only one, of those factors.[42] Other factors not expressly referred to in that list may also be relevant, such as the represented person's physical health and safety, and their emotional and psychological health and wellbeing.[43]
[42] Cf SH and EJH [2013] WASAT 176 [24].
[43] A [2018] WASAT 46 [27] (Leslie M).
Furthermore, determining what is in a person's best interests may require inquiries to obtain input from interested third parties. As the Tribunal has recently explained, consideration of a represented person's best interests, as required by s 51 of the GA Act, 'requires a guardian to embark upon a broad endeavour in coming to a best interest[s] decision including seeking representations from relevant family members and the represented person and other interested persons.'[44]
[44] RM [2020] WASAT 4 [55] (Mansveld M).
The greater willingness on the part of K and J to consider the full range of factors which may bear upon ED's best interests in relation to contact has meant that we are satisfied, albeit not without some hesitation, that it is more likely than not that K and J will be able to act in ED's best interests, will be able to perform the functions of a guardian with respect to contact decisions and, thus, are suitable to act as the guardians for ED in respect of contact decisions.
We therefore are of the opinion that K and J are persons who meet the requirements set out in s 44(1) of the GA Act, and we so find.
In reaching this decision, we have borne in mind that if there is a failure by K and J to properly undertake the contact function in their role as guardians, it will be open to interested parties, including A, to apply for leave to review the contact guardian order, under s 87 of the GA Act.
The duration of the order
We propose to make an order requiring a review of the appointment of a contact guardian by 14 November 2023, which will mean that this aspect of the guardianship arrangements in relation to ED can be considered and reviewed at the same time as the other guardianship order, which is not the subject of the present review.
Orders
We therefore make the following orders:
1.The orders made by the Tribunal on 2 December 2019 are set aside and the following orders are made.
2.The Tribunal declares that the represented person, [ED],
(a)is -
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgment in respect of matters relating to his person;
(iii)in need of oversight, care or control in the interests of his own health and safety; and
(b) is in need of a guardian.
3.[K and J] are appointed joint limited guardians of the represented person with the following function:
(a)to determine what contact, if any, the represented person should have with others and the extent of that contact.
4.This order is to be reviewed by 14 November 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EH
Associate to the Honourable Justice Pritchard1 APRIL 2020