EE and ME - [2012] WASAT 147

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: EE and ME [2012] WASAT 147

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 14 JUNE 2012

DELIVERED : 11 JULY 2012

PUBLISHED : 19 JULY 2012

FILE NO/S: GAA 1274 of 2012
GAA 1275 of 2012

BETWEEN: EE
Applicant
AND
ME
Represented person

Catchwords:

Guardianship and administration - Capacity to enter into intimate relationship - Capacity to live independently - Conflict in assessments about capacity - Protection v autonomy - Factors to be considered by guardian in making best interests decision

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(a), s 4(2)(b), s 4(2)(c), s 4(2)(d), s 43(1)(b), s 44, s 51, s 64(1)(a), s 68, s 97(1)(b)(iii)

Result:

Guardian and administrator appointed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented person : Self-represented

Solicitors:

Applicant: N/A
Represented person : N/A

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

Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications for guardianship and administration orders were made for a 54yearold woman who had sustained a head injury about three years ago.
The applications were made by the nursing home in which she lived because of a concern that she had recently entered into an intimate relationship with a man who it was considered might exploit her, both personally and financially.
A psychiatrist had assessed the woman as not having sufficient capacity to make judgments about her relationship, other personal decisions and her financial affairs.
The concern for the woman's welfare was also held by her family from whom she had become estranged.
The woman's partner expressed his commitment to her and said that his involvement had changed the woman's outlook on life and her interaction with the community. The woman's family accepted that there had been positive outcomes for the woman arising out of her new relationship.
The woman's partner referred to a neuropsychological assessment undertaken soon after the head injury, to contend that the woman was capable of making her own decisions about the relationship and where she should live. He accepted that she could not manage her financial affairs.
The Tribunal preferred the assessment of the psychiatrist over that of the neuropsychologist for a number of reasons. The Tribunal found, however, that there was insufficient evidence to warrant an order which would control with whom the woman could associate.
The Tribunal did find both the woman and her partner to have an unrealistic view of the capacity of the woman to live independently.
The Tribunal therefore appointed the Public Advocate as the woman's limited guardian to make decisions about her future accommodation and the support services she might need.
The Tribunal also appointed the Public Trustee as the plenary administrator of the woman's estate.
What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.

Introduction

I have before me two applications in respect to ME (represented person). The applications are for guardianship and administration orders and have been made by the nursing home in which the represented person resides.
The hearing of these applications was held on 14 June 2012. In attendance were:
•the represented person;
•the represented person's companion, CC;
•the represented person's daughter, ME;
•the represented person's son, CE;
•the represented person's former spouse, M;
•the represented person's brother, AM, who attended by telephone from the United States of America;
•DD for the Public Advocate;
•TF as the represented person's advocate; and
•EE and MB (Assistant Facility Manager) for the nursing home.
At the hearing on 14 June 2012, I appointed the Public Trustee as the represented person's plenary administrator for a period of 12 months. I reserved my decision on the guardianship application.
I will give my decision in the guardianship matter and the reasons for that decision, and the reasons for appointing the Public Trustee as the represented person's administrator.

Relevant legislation

The relevant legislation for the applications before me is the Guardianship and Administration Act 1990 (WA) (Act).
The Act provides for, amongst other things, the appointment of a guardian and an administrator for a person who, because of an impairment of their faculties, is in need of the protection of a decisionmaker and advocate (Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43]).
Guardianship has to do with a person's personal life, and administration has to do with a person's financial affairs; that is, their estate.
In making a decision about whether a guardian and an administrator should be appointed for a person, there are essentially four steps I need to consider, and these steps incorporate the principles of the Act which are to be found at s 4.
The first step is the decision or finding about the represented person's capacity; that is, her ability to do or not to do things or to make reasonable judgments about decisions that need to be made.
The starting point for anyone for whom an application has been made is that they are able to manage their own affairs, look after their own health and safety, and make reasonable judgments about personal or financial matters (s 4(2)(b) of the Act). This is called the presumption of capacity.
There are two sections or provisions in the Act which go to the question of a person's capacity and whether they are a person for whom a guardian and an administrator could be appointed.
For guardianship, the section is s 43(1)(b), and for administration, the section is s 64(1)(a) of the Act.
To consider whether a guardian could be appointed for the represented person, I must first be satisfied that she is either incapable of looking after her own health and safety or is unable to make reasonable judgments about her person, or that she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
To consider whether an administrator could be appointed for the represented person, I must first be satisfied that, because of a mental disability, she is unable to make reasonable judgments about all, or any part, of her estate.
If I decide that the represented person is a person for whom a guardian and an administrator could be appointed, I then need to ask whether she is in need of those appointments. This is the second step.
The Act makes a distinction between incapacity and need. The fact that a person has an impairment that affects their ability to look after themselves or make reasonable judgments about certain matters does not, of itself, mean that appointments should be made. The Act states that if the needs of the person that is, the represented person's needs can be met by other means less restrictive of her freedom of decision and action, then orders should not be made (s 4(2)(c) of the Act).
When an order is made, a person's right to make their own decisions is affected.
If I decide that appointments are needed, I must then decide what role I give to the guardian and the administrator (step 3) and who should be appointed guardian and administrator (step 4). The Act states that I should not appoint a plenary guardian (that is, someone with the authority to make all the personal decisions for the represented person) if a limited guardian would meet her needs (a limited guardian's authority is limited to the functions given in the order) (s 4(2)(d) of the Act). When I decide who should be appointed, the Act gives guidance in s 44 (guardianship) and s 68 (administration).
The decisions that are made under the Act must be made in what the Tribunal considers to be in the person's best interests (s 4(2)(a) of the Act). My primary concern is therefore the represented person.
In considering what decision I should make, I need to ascertain the represented person's views and wishes; however, it is her best interests that must be my final judgment.

The applications

The written applications by the nursing home do not, of themselves, provide much information as to why it is proposed that orders be made. It is stated that the represented person is in a vulnerable position, that she lacks insight due to a mild cognitive impairment, and that she is considered to be at risk of exploitation. It is further stated that the represented person's children manage her financial affairs.
What does provide more information, and which is included with the application, is a report from the consultant psychiatrist, Dr PC. Her report is dated 16 March 2012. Dr PC expands somewhat on her assessment in a further report to the Tribunal dated 18 April 2012.
Relevantly, Dr PC states, from her report of 16 March 2012:
… [The represented person] has an acquired brain injury following a suicide attempt in July 2009 when she jumped from a 5th floor balcony. She had a prior history of 2 psychiatric admissions for depression with psychotic features. One admission noted a schizophreniform picture to her psychotic symptoms. However, throughout her treatment it appears that depression has been the main problem.
…
Currently one of the major concerns is regarding her capacity. She is a vulnerable lady because of her brain injury and there has been concern expressed by others regarding the relationship that has developed between her and [CC] (the son of a former respite resident). I met him at the assessment on 12 March 2012. He reported having several business ventures and that these companies have trust funds of substantial amounts (he reported millions and billions of dollars in the various companies). The veracity of his claim has not been established. He did much of the talking for [the represented person] when they were seen together and reported that she has concern about loss of taste and smell, which may be due to the brain injury. In addition he reported that she has been asking about a previous inheritance. Whilst he appears to be caring towards [the represented person], my concerns centre on her capacity. She demonstrated reasonable functioning on minimental state (28/30) and simple office based frontal lob [sic] testing. However, she appears to have deficits in her capacity to appropriately and fully weigh up the aspects of the situation regarding the relationship with [CC]. I believe that she lacks good enough capacity to make decisions for herself regarding her living accommodation, finances and health care and have recommended that a guardianship application be made. …
Dr PC states, in her report of 18 April 2012:
…
Superficially [the represented person] appears to demonstrate as [sic] reasonable degree of comprehension of the issues involved in her personal health care, living situation and financial affairs. In my opinion the main area of deficit is in capacity to undertake careful weighing up of the factors involved to reach her decisions she superficially appears to comprehend the issues but does not demonstrate a sufficient executive functioning to reach her own decisions. This impairment is consistent with a brain injury to the frontal lobes which have a major role in executive functioning. I think she is at significant risk of being swayed in her decisions [sic] making by the opinion of others. There are some complexities in her social life at the present time with a new intimate relationship. …
The report of Dr PC makes clear why the applications have been made. It has to do with the represented person's perceived vulnerability to personal and financial exploitation. That vulnerability has, it is alleged, recently manifested in the relationship she has with CC.
The Public Advocate states in his report that the applications have been made at the request of two of the represented person's children, ME and JE (JE was unable to attend the hearing but she has had communication with the Public Advocate). Again, it is alleged that the represented person is vulnerable to exploitation arising out of her relationship with CC, in particular, financial exploitation (Dr PC has also expressed this concern).
Given an appreciation of what lies at the heart of the applications, it is appropriate now to look at what the parties say about them. Before that is done, however, I shall firstly summarise the medical and allied health reports and assessments that are before the Tribunal.

Medical and allied health reports

I have already mentioned the reports of Dr PC in some detail. Dr DB, the represented person's general practitioner, has also provided a report. It is dated 18 April 2012. With the benefit of having had Dr PC's assessment, Dr DB states that the represented person appears to have normal cognition, but lacks insight and judgment into her decisionmaking due to the head injury she sustained in 2009. The represented person is described as intelligent and is assessed as having a reasonable memory. However, it is Dr DB's view that, because of the difficulties with insight and judgment and, additionally, the represented person's desire to please people, she is vulnerable to people 'conning' her, as Dr DB puts it. When asked whether the represented person is able to make reasonable decisions about her personal health care and accommodation issues, Dr DB is unable to give a clear opinion. In respect to the represented person's financial affairs, however, Dr DB is able to say that the represented person is not able to make reasonable decisions about her financial affairs, nor is she now capable of making an enduring power of attorney.
The Tribunal has before it medical and allied health reports from previous applications made under the Act for the represented person in 2009 and 2011. The reason these assessments may still need to be considered by the Tribunal is because one of the reports, that of the clinical neuropsychologist, RZ, is referred to by the Public Advocate. That report is dated 28 July 2009, not long after the represented person sustained her head injury.
I shall also refer to a functional assessment conducted by an occupational therapist in the period August December 2010, because it is not inconsistent with some of the concerns that have been raised in the applications and the oral evidence of the nursing home representatives (since the hearing, the nursing home has provided the Tribunal with a more recent mobility and physiotherapy care plan and occupational therapy assessment/care plan for the represented person).
RZ's report provides an interesting perspective on the represented person's mental state, at least as it was in July 2009. This is because, in RZ's view, the reported deficits (memory/cognition) were not consistent with a person who presented as having a brain injury. RZ's overall view was positive, although she did say it was somewhat difficult to gain a true picture of the represented person's cognitive abilities and her decisionmaking capacity. RZ assessed the represented person as capable of making financial decisions, including making an enduring power of attorney. The represented person was also assessed as demonstrating 'wellinformed decisionmaking' as regards to her living arrangements, on the basis that she identified the major issue upon discharge as the need for ongoing psychiatric support. The represented person was not considered to be particularly vulnerable to coercion.
RZ opined that whilst the possibility of a head injury related to cognitive impairment could not be excluded, any apparent deficits detected during the represented person's interactions at the informal level suggested such deficits to be mild in nature. RZ raised the possibility of other difficulties impacting on the represented person's mental state when she stated:
… Her performance on symptom validity testing supports the strong contribution of nonhead injury related factors to her clinical picture. … (page 4 of the report)
To make some sense of this statement, I refer to what RZ stated earlier in her report at page 1:
… [The represented person] has reportedly not been given a formal psychiatric diagnosis, though features of paranoia, possible cluster B personality disorder and a possible psychotic episode (2008) are noted. …
The functional assessment conducted by an occupational therapist in late 2010 is instructive, because it gives some insight (as it was then) into any practical limitations that the represented person faced in her independent living. The assessment included information gathered from previous case notes, observation of the represented person, feedback from family, and cooking and shopping exercises.
Relevantly, the report assessed the represented person as follows:
•her functional abilities fluctuated significantly depending on levels of anxiety and physical fatigue;
•she often required reassurance;
•she was considered a falls risk;
•she demonstrated significant deficits in planning and sequencing actions; and
•she had difficulties with attention to tasks, selfmonitoring and problem solving, and required prompting.
In his oral evidence, MB from the nursing home expressed concern when it was suggested by CC that the represented person might choose to live independently. Both he and EE assessed the represented person as still being a falls risk, and requiring prompting and supervision in daily tasks. The written material provided after the hearing indicates some ongoing unsteadiness with her balance and notes a history of falls, but otherwise presents a relatively positive assessment of the represented person in her activities of daily living within the supervised and supported environment of the nursing home.

The evidence and submissions of the parties

A number of the parties have spoken to the Public Advocate prior to the hearing as part of his investigation into the applications after referral by the Tribunal, under s 97(1)(b)(iii) of the Act. Where relevant, I will include, in the evidence of the parties, aspects of those discussions with the Public Advocate.
The children of the represented person present at the hearing, CE and ME, propose that they be appointed their mother's plenary guardian. They question the bona fides of CC. They say that he is somewhat too interested in the represented person's money, and express significant concern about what they see as his plan to stop the represented person's medication, which CE (son) describes as dangerous.
CE states that the nursing home was only ever going to be a transitional placement for the represented person. It was always the children's intention to have the represented person live in a facility more appropriate for her age and cognitive/communication abilities. To this end, the children had waitlisted the represented person at such a facility.
ME (daughter) states that the represented person lacks the ability to have a clear judgment about the decisions she needs to make. She says that the children, if given the authority, would not allow the represented person to live with CC.
It is the view of CE (supported by ME) that CC has influenced their mother to be set against her children.
Another of the represented person's children, JE, was unable to attend the hearing. Her principal evidence is contained in an email to the Public Advocate dated 11 June 2012.
Relevantly, JE states that she has concerns for the represented person's general welfare, her ability to care for herself and to undertake tasks such as the payment of bills. JE states that, in her experience, the represented person struggles when she is presented with 'multiple factors' in decisions to be made. She is said to find it difficult to retain information for processing because of shortterm memory problems, and also not to take the longerterm consequences into account. JE says that she has had the experience of having to 'reteach' the represented person computer (email) processes that the represented person used to know. Even then, the represented person requires the assistance of staff at the nursing home.

JE submits that the represented person is also vulnerable because of her loneliness. The represented person went from living with her family (and being cared for by them, in particular her former spouse, M), to M leaving the family home and then the represented person being placed in a nursing home. JE says that these experiences make the represented person emotionally vulnerable to people with not necessarily her best interests at heart.
In respect to her finances, JE says that she and the represented person had three joint bank accounts the credit card account, an access account (into which her pension is paid), and an online saver account which holds just over $25,000. JE says that she has managed the represented person's finances for some time. The situation of the bank accounts changed in March 2012 when, apparently, the represented person went to the bank and changed the credit card and access account. JE says that she no longer controls those accounts, but still has control of the online saver deposit monies.
JE states that she is concerned and surprised at her mother's actions. She has always had a good relationship with her mother and has not had any problems after she took over the finances when her father (M) left. She is surprised that the represented person changed the bank accounts without asking her what payments were deducted from them, including the nursing home fees, telephone and pharmacy accounts. JE submits that the represented person has been influenced by an 'external party', by whom I presume she means CC.
The Public Advocate raised the issue of some loans that had been made to family members from the represented person's estate (and about which the represented person has recently expressed concerns). JE advises of loans to the children and to M. She states that she borrowed $2,000 in January 2009, which was repaid by July 2010; $500 went to CE, which was repaid by July 2010, and $2,500 went to ME for the purchase of the represented person's car, which was repaid by November 2011. The loan to M was for $7,000 for the purchase of a rural property and which JE says has also been repaid. M also states that he has paid the loan in full.
At the hearing, ME submitted an enduring power of attorney that the represented person made on 31 October 2011 appointing JE (daughter) as sole attorney and ME (daughter) as substitute attorney. In that instrument, the represented person declared that it could begin to operate from the date of signing and acceptance by the attorneys.
The represented person's brother, AM, states that, in his view, the represented person is vulnerable, particularly as regards her money. He says, for example, that she does not remember what accounts have been paid, and finds that she is unable to discuss with him the contents of the letters and emails she has sent him, which leads him to question who is writing the letters. He finds the situation with CC difficult and is concerned about interference in the represented person's personal relationships. He sees some good in the relationship because the represented person is getting out in the community, but is concerned that CC is driving a wedge between the represented person and her children. CC has said that the children are selfish and that he (CC) is the one who has helped the represented person. AM is concerned about CC's attitude to the medication currently prescribed for the represented person.
The representatives of the nursing home state that the represented person is being prescribed antidepressant medication and medication for a physical ailment. They are of the view (stated earlier in these reasons) that the represented person is not able to live independently because she needs supervision and assistance with her care. She has mobility issues and remains a falls risk. As for the relationship with CC, the nursing home representatives speculate whether the represented person is prone to 'romantic love', as she was still in a relationship with another resident of the nursing home when she started the relationship with CC. Recently, the general practitioner, Dr DB, has given a medical clearance for the represented person to stay at CC's home, it is said by the nursing home representatives, so that CC would be given a realistic picture of the amount of care and supervision that the represented person requires.
As already mentioned, the Public Advocate has communicated with many of the parties to this proceeding. He says that he shares some of the family's concern about CC. The Public Advocate reports that CC took the represented person to her bank in March 2012 so that she could change the account details and redirect the Centrelink pension. As a consequence of the change, the direct debit to the nursing home stopped, and this has meant that the represented person is behind in the payment of her care fees. CC is reported to have said that he has substantial assets overseas and does not need the represented person's money. However, he confirmed to the Public Advocate that he uses the represented person's credit card for business transactions, but that those expenses are reimbursed. Contrary to what JE says about the loans to family members, CC has told the Public Advocate that, in his view, M has not repaid his loan and that ME has not paid for the represented person's car.
The Public Advocate submits that the represented person is in need of an administrator. He states that she appears to have only a basic level of understanding of her estate and the transactions made. He cites the example of her change of her bank account and the subsequent arrears with the nursing home. The Public Advocate submits that the use of the represented person's credit card by CC is inappropriate. He states that CC causes disharmony in the represented person's family. The Public Advocate further submits that the enduring power of attorney has been found to be wanting, because of the ease with which the represented person was able to change her bank accounts.
The Public Advocate proposes that the Public Trustee be appointed the plenary administrator of the represented person's estate for a term of 12 months.
The Public Advocate initially hesitated in proposing that a guardian be appointed. He referred to RZ's assessment in 2009 of the represented person's abilities, and submitted that she is entitled to a 'dignity of risk' in the choice of her relationships. He pointed to the improvement in the represented person's outlook and demeanour brought about, he says, in part, because of the relationship with CC. The Public Advocate submitted that the represented person is in need of oversight of her general welfare, but questioned whether a guardianship order was needed to achieve this. He further questioned the effectiveness of a guardianship order in the represented person's circumstances.
The Public Advocate's submission changed during the course of the hearing in response to the evidence of CC that he has initiated listing the represented person with the public housing authority for independent (disability) housing, and that it remains her choice whether she lives with him or lives alone. On that basis, the Public Advocate now proposes that he be appointed the represented person's limited guardian to decide what accommodation is best for her.
In his oral evidence, CC states that he loves the represented person and that he is happy to provide her with whatever assistance she needs. He disputes that she was in another relationship at the same time as she began a relationship with him. He says that he helped her get out of what he terms an 'unhealthy relationship'.
CC submits that the represented person is capable of making her own personal decisions and, as with the Public Advocate, refers to the 2009 assessment of RZ as support for that contention. In particular, CC submits that the represented person is able to choose with whom she wants to be involved.
CC states that, when at his home, the represented person needs no particular care, supervision or monitoring. He is of the view that she could live on her own and would likely only require assistance with showering (because of her physical limitations), and this could be done by a care agency such as Silver Chain.
CC states that he has arranged for the represented person to be medically reviewed by his general practitioner, and has secured a referral to a psychiatrist in November 2011 as part of that review. He says that, in the meantime, he has no intention of changing the represented person's medications. He questions the commitment of the represented person's children to ensuring she receives uptodate medical care. CC acknowledges that the new general practitioner has yet to speak with the represented person's current general practitioner, Dr DB.
CC states that he has tried his level best to communicate with the represented person's children, but without much success. He says that he is committed to the represented person and their relationship.
As already mentioned in these reasons, CC wants to allow the represented person herself to choose whether she lives with him or whether she lives independently, such as in public housing accommodation.
CC agrees with the Public Advocate that the represented person is in need of an administrator, and that it should be the Public Trustee. He states that he has no interest in the represented person's money, as he has family overseas who are wealthy. The need for an administrator is said to arise because of the represented person's shortterm memory problems and her anxiety.
CC acknowledges that he has used the represented person's credit card for some business purchases and that his 'company' credit card could be used for those transactions. He reiterates that all expenditure has been reimbursed.

The represented person's views and wishes

Prior to the hearing, the Tribunal received two letters purportedly written by the represented person, one dated 25 April 2012 and the other dated 20 May 2012. In the first letter, the represented person states that under no circumstances should her daughters, JE and ME, or her brother, AM, be considered to act as her guardian, because they have shown that they are not capable of caring for her. As regards her finances, the represented person states that she welcomes the temporary appointment of the Public Trustee to manage her estate and to:
... investigate and recover all my monies and other assets which has [sic] been taken by both my daughters. …
The represented person states that she has been booked to attend an 'independent' doctor whom she hopes will determine her ability to make decisions in her life.
In the second letter, the represented person reaffirms that she does not want her children involved in guardianship. She states that the Tribunal proceedings are causing her much anxiety.
In her oral evidence, the represented person makes an impassioned plea to be given the opportunity to make her own decisions, including managing her own finances which, in the latter case, is a change to what she says in her letter of 25 April 2012.
Also in her oral evidence, the represented person demonstrates that she was not aware of the debt with the nursing home and the need to have changed the direct debit arrangement when she changed her bank details. She was not able to explain how, under the new banking arrangements, money is withdrawn to pay for her expenses.

The decision of the Tribunal

The represented person's capacity

The question of the represented person's capacity needs to be responded to in the context of the relevant provisions of the Act to which I have already made reference. Those sections are s 43(1)(b) for guardianship and s 64(1)(a) for administration.
There are some differences of views as to the extent of the represented person's abilities or, to put it another way, the extent of her impairment, given the head injury sustained in 2009 and other conditions alluded to in the specialists' reports.
On their face, there appear to be differences in the specialist assessments of the clinical neuropsychologist, RZ (2009) and the consultant psychiatrist, Dr PC (2012). What can be drawn from the two assessments, however, is that the represented person presents as having what Dr PC states as a '... reasonable degree of comprehension of the issues involved in her personal health care, living situation and financial affairs' (report of 18 April 2012); however, the question is whether that 'comprehension' and the articulation of those issues extend to the ability to reach a thought through decision on her own, and to carry that decision through to a conclusion, again, on her own. Dr PC appears to say 'no', whilst RZ appears to say 'yes'. Both RZ and Dr PC accept the presence of some impairment; Dr PC assesses this as being a product of the represented person's brain injury, whilst RZ states that the test results do not fit the represented person into a head injury model. Taking her assessment to its conclusion leads Dr PC to opine that the represented person is at risk of being swayed in her decisions by the opinions of others, whilst RZ does not have the same concerns; she finds the represented person not particularly vulnerable to coercion. It should be said that RZ does not exclude the possibility of a head injuryrelated cognitive impairment, but, if so, would assess that as mild. She opines that there may well be nonhead injuryrelated factors in the represented person's clinical presentation.
To reach a finding about the represented person's capacity through the differences expressed in the reports of Dr PC and RZ, I need to turn to the other evidence available to me.
The first is to consider what has happened to the represented person since the accident in 2009. It is common ground, I think, that after the represented person was discharged from hospital (rehabilitation), she went home under the care of her then spouse, M. When he made a decision to leave the relationship, the ultimate outcome was that the represented person was placed in care in April 2011. The importance of that decision is twofold.
First, it acknowledges that, at the time, the represented person was considered not to be able to independently care for herself.
Secondly, until recently (when CC entered her life), there is no evidence that the represented person challenged that decision or the decision that JE should manage her finances in the way that has been described. I infer from these simple facts that the represented person was not able, on her own, to summons the necessary planning and organisational abilities to change her circumstances (assuming she wanted to) which, with the recent assistance of CC, she is now trying to do. That says something about the limits of her abilities, and this is reinforced, in my view, by the evidence which demonstrates the high reliance the represented person places on CC (take, for example, the arranging of the stays at CC's home, the change to the banking arrangements, the referral to the new general practitioner, the advocacy role, and the referral to public housing. All these, in my view, have been principally initiated by CC and organised by him).
Finally, there is the represented person's own evidence which reveals a lack of a deep understanding of how the management of her financial affairs could be managed in an ongoing way, and a similar lack of understanding of all that is involved in arranging alternative accommodation.
This view is further supported by the functional assessment undertaken in 2010 referred to earlier in these reasons where, after practical exercises assessed over several months, the represented person was found to have significant deficits in planning, attention to tasks, selfmonitoring and problemsolving. Importantly, her functional abilities fluctuated significantly depending on her levels of anxiety and physical fatigue, something which is still acknowledged as a problem for the represented person. The 2010 functional assessment can be distinguished from the more positive 2012 occupational therapy assessment, in that it was undertaken as a means of judging the represented person's ability to function independently, whilst the recent assessment was undertaken in the context of her functioning within the confines of a highly structured nursing home environment.
All of this is also consistent with the evidence of JE which I accept, given her long involvement with her mother.
Taking into account all this other evidence, in my view, supports the assessment of Dr PC, and for that reason, I prefer her assessment over that of RZ. I have also given weight to the fact that Dr PC's assessment is the most recent and is therefore based on the represented person as she presents today, rather than three years ago.
I am therefore satisfied that the represented person is a person for whom a guardian and an administrator could be appointed. I am satisfied that she cannot look after her own health and safety, and is in need of oversight and care in the interests of her own health and safety. I am also satisfied that, as far as her accommodation is concerned, she is unable to make reasonable judgments about what is in her best interests, even though she has a strong view about what she wants.
I am further satisfied on the evidence that the represented person has a mental disability which is characterised by the residual effects of her head injury, and that, because of those effects, she is unable to make reasonable judgments about her estate.

The need for an administrator

The evidence shows that the represented person's children (particularly JE) have been managing her finances for at least the time she has been in the nursing home and that the represented person has assumed a very limited role in those tasks. JE has taken control of the cash funds, which are the balance of an inheritance (about $25,000).
It appears that this arrangement has operated both informally and formally, the latter by way of an enduring power of attorney made by the represented person on 31 October 2011. The making of the enduring power of attorney not so long ago is evidence of the represented person's preference at that time as to whom she wanted to manage her finances. That preference has clearly changed, and I suspect it is driven by CC questioning certain aspects of the financial management, such as the 'inheritance' funds and the loans made to family members, and that the represented person, in her limited way, has adopted that position to the extent that she now does not want her children involved at all. In my view, it is unfortunate that the represented person has adopted such a punitive stance against her children. There is no evidence before the Tribunal that the represented person was concerned about the financial management prior to the recent falling out.
This has put the children in a very difficult position, and the changing of the represented person's bank accounts (which I find has also been largely driven by CC) means that the protection previously offered by the enduring power of attorney has gone.
The represented person's estate needs protection, preservation and consolidation. Someone with authority needs to put the matter of the loans to family members to rest and also to investigate exactly what interest the represented person has in the rural property. This cannot be the children, because they are in a position of conflict and because the represented person is currently strongly against them. CC does not propose himself, but even if he did, I would not initially make such an appointment because he has, in my view, taken a position which has prejudged the efforts of the children and he remains in an antagonistic relationship with them.
I am left with appointing the Public Trustee and I find that it is in the represented person's current best interests that the Public Trustee be appointed her plenary administrator for a period of 12 months.

I have decided not to revoke the enduring power of attorney at this time. It needs to be seen, at the end of the 12 months, what the represented person's situation is, so as to be able to determine whether there is a longer term needed for an order or whether some other arrangement for her financial management can be put in place.

The need for a guardian

Much discussion has taken place about the represented person's personal life, in particular, her relationship with CC. This is an emotive issue and one that goes to the core of the represented person's personhood.
It is common ground, I think, that the represented person is too young to contemplate the rest of her life in a nursing home that mainly caters for the elderly. She is 54 years of age. Of course, there are others in a similar situation to that of the represented person who have no alternative but to be in such a facility because they need fulltime care.
The represented person has entered the relationship with CC and, as far as she is concerned, it should endure. CC expresses similar feelings. Dr PC suggests that there should be caution about the represented person's ability to fully weigh up what the relationship will entail, and this view is supported by the children and the represented person's brother, all of whom are wary of CC.
CC states that his intentions are honourable and that in the time he has known the represented person, she has improved in her outlook on life (perhaps the conflict with her children being the exception) and he has improved her access to the community. I think all the parties accept that there have been positive outcomes for the represented person in the relationship to date.
Despite the concerns of the family, the nursing home and Dr PC, there is not, in my view, sufficient evidence before the Tribunal to warrant an overt intrusion into the represented person's relationship with CC by appointing a guardian to decide with whom she is to associate. I am not satisfied that there is sufficient evidence that she needs that sort of protection.
I am satisfied, however, that there is sufficient evidence to warrant an order in respect to the decision about the represented person's future accommodation. In that respect, I agree with the Public Advocate and the representatives from the nursing home that both the represented person and CC have an unrealistic view about the degree of independent living the represented person can sustain. I do not agree with CC that the represented person would, at this time, be able to live fully independently. The evidence indicates otherwise. That is not to say that the represented person necessarily requires nursing home care, but it does mean that she needs support and supervision. It is not as simple as CC puts it, that the represented person need only decide whether she lives with him or independently in something like public housing. The level of support that the represented person will require, and how that impacts on the accommodation options available to her, is something that needs to be carefully assessed and planned.
I am not satisfied that, as it currently stands, without a guardian in place, this careful planning would occur.
I will therefore appoint the Public Advocate as the represented person's limited guardian to make decisions about her accommodation. I will also include in that order a function for services, as that will enable the Public Advocate to explore and arrange the provision of support services the represented person will require, should she live in the community.
I have appointed the Public Advocate rather than CC or the represented person's children for the same reasons I appointed the Public Trustee as her administrator.
For those who are concerned that this appointment might prevent a return to community living for the represented person, I draw the parties' attention to s 51 of the Act, which sets out the sorts of things a guardian must take into account when making a decision for a represented person.
Relevantly, s 51 of the Act states:
(1)Subject to any direction of the State Administrative Tribunal, a guardian shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if he acts as far as possible -
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
…
During the hearing, a concern was raised by the represented person's family about CC's alleged negative influence on her medical needs. CC states that he is in the process of arranging a full medical review for the represented person through his general practitioner. I take, at face value, that CC will not act against medical advice, and see nothing inherently wrong in a review taking place. I would expect, however, that CC will inform the represented person's current general practitioner, Dr DB, who should be asked for her input.
I see no current need to make a guardianship order to deal with the represented person's (medical) treatment decisions.
The guardianship order for accommodation and services will be reviewed by the Tribunal in 12 months, together with the order for administration.

Orders

Administration

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.This order is to be reviewed by 14 June 2013.

Guardianship

1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East 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; and
(c)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 14 June 2013.

I certify that this and the preceding [112] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER