GG - [2020] WASAT 54 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   GG [2020] WASAT 54
MEMBER:   MS F CHILD, MEMBER
HEARD:   12, 13 MARCH AND 1 APRIL 2020
DELIVERED          :   18 MAY 2020
FILE NO/S:   GAA 4599 of 2019

GG
Represented Person

Catchwords:

Guardianship and administration - Represented person with autism and intellectual disability and challenging behaviours - Application for guardianship and administration order - Need for orders - Conflict between mother and service providers about financial and other matters - Removal from supported accommodation - No services in place - Need for services - Potential risk to health and safety of challenging behaviours - Need for administrator - Need for certainty about management of finances - No less restrictive means - Parents in conflict - Parents not suitable for appointment

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17A, s 43(1)(b), s 44(5), s 64(1)

Result:

Public Trustee appointed administrator
Public Advocate appointed limited guardian

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Interested Party	:	Mr R Graham

Solicitors:

Represented Person	:	N/A
Interested Party	:	Voght Graham

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These are the reasons of the Tribunal for the decisions made on 1 April 2020 to appoint the Public Advocate as limited guardian of GG and the Public Trustee as plenary administrator of his estate.
In all decisions of the Tribunal made under the Guardianship and Administration Act 1990 (WA) (the GA Act), all identifying information is removed to protect the privacy of the represented person.

Background

GG is 26 year old man with autism spectrum disorder and intellectual disability.
Guardianship and administration orders were first made for GG in 2013 on the application of his father, BG. The Public Advocate and the Public Trustee were appointed as guardian and administrator of GG's estate.
Those orders were revoked on review pursuant to s 17A of the GA Act brought by Ms T (GG's mother) in 2015.

The application

The current application seeking orders for guardianship and administration for GG was made on 20 December 2019 by BJ and FT (the applicants), representatives of a disability service accommodation provider where GG had been living for 18 months up until December 2019.
The application proposed the appointment of the Public Advocate and the Public Trustee.
As part of case management orders dated 7 January 2020 which were sent to the parties, the applications were referred to the Public Advocate for investigation which included a request to investigate the need for the orders proposed and to ascertain the views and wishes of GG.
The hearing of the applications occurred over 3 days on 12 March, 13 March (first hearings) and 1 April 2020 (final hearing).
Ms T and the investigator for the Public Advocate (investigator) attended the first hearing. Ms T said that she considered it was not in GG's best interests to attend the hearing as he was traumatised.
Ms T confirmed in the hearing that she had not allowed GG to be interviewed by the Public Advocate's investigator. Ms T was reminded of the Tribunal's referral to Public Advocate and the Tribunal's obligation to ascertain GG's wishes. At the second hearing, held on the following day GG attended together with Ms T and the applicants.
At the final hearing all the parties attended by telephone due to COVID-19 restrictions. The Tribunal heard from the applicants, Ms T and her solicitor, briefly from BG (who had by that time been given notice of the proceeding and was connected by telephone late in the final hearing), GG's sister E and the investigator.
The material before the Tribunal includes the application, medical and service provider reports, a bundle of documents submitted by Ms T on the morning of the first hearing, which includes email and other correspondence between Ms T and the applicants, care plans from Disability Services and financial records, a written submission filed by BG prior to the final hearing, a report by Disability Services filed for the first hearing and updated for the final hearing, and written submissions filed on behalf of Ms T and a report of the Public Advocate's investigator.
Orders were made at the conclusion of the final hearing and the Tribunal advised that reasons for the decision would be published.

Legislation

Principles to be observed

In all proceedings in the Tribunal brought under the GA Act, the Tribunal must observe principles set out in s 4 of the GA Act which provide that the primary concern of the Tribunal is the best interests of GG.
The principles also provide that GG is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal.
The principles say that orders should only be made if needed; if the needs of GG can be met by less restrictive means, orders should not be made for him. If an order is made it should be in the least restrictive terms possible.
Finally, the principles require that in considering any matter relating to GG, the Tribunal should seek to ascertain his wishes as expressed at the time or gathered from his previous actions.
To appoint an administrator of his estate the Tribunal must be satisfied that GG is unable by reason of a mental disability to make reasonable judgments about all or any part of his estate and he is in need of an administrator of his estate (s 64(1) of the GA Act).
A mental disability is defined in s 3 of the GA Act to include an intellectual disability.
To appoint a guardian the Tribunal must be satisfied that GG is incapable of looking after his own health and safety, unable to make reasonable judgments about his person or is in need of oversight care or control in the interests of his own health and safety or for the protection of others (s 43(1)(b) of the GA Act).
If the Tribunal determines that GG is in need of a guardian and an administrator of his estate, it must then consider who should be appointed in those roles and functions to be included in any order made and the term of appointment.
Pursuant to s 44(5) of the GA Act the Tribunal may not appoint the Public Advocate unless there is no other person suitable or willing to be appointed.

Is GG a person for whom a guardianship and administration orders may be made?

In a report dated 27 December 2019, Dr M, a general practitioner refers to GG having autism and severe anxiety and gives the opinion that GG is incapable of making financial decisions. The doctor is unsure about GG's capacity to make judgments about personal matters and states that GG is incapable of giving an enduring power of attorney or an enduring power of guardianship.
The Disability Services Local Coordinator (LC) reports that GG is registered with Disability Services based on his intellectual disability and autism. She says that GG has an individual plan that includes a significant level of funding for a 24/7 accommodation option in a shared home which is self-managed by Ms T. GG also has funding for community access to be provided by another agency.
In response to the question whether GG's health and safety are at risk, the LC says that a guardian and an administrator were appointed for GG in 2013 due to concerns for his welfare, lack of supervision and safeguarding including serious incidents of being assaulted, being hit by a car twice and being found by police lost in the community. The LC goes on to say that when under guardianship and administration orders GG was reported to live in a group home. GG was removed from that accommodation and lived with Ms T until he was hospitalised for some months in 2018. The LC reports the hospital staff said Ms T had said she was unable to continue to care for GG as a result of his challenging behaviours. After some months in Sir Charles Gairdner Hospital (SCGH) GG was discharged to the accommodation service provider who is the applicant in this proceeding.
At the first hearings Ms T said GG did not have autism and was high functioning. She agreed he was on the spectrum. She said that GG can look after his own health and safety and make reasonable judgments about his person. She did not accept that GG was a person for whom orders could be made (ts 30, 12 March 2020).
Following legal advice, Ms T has changed her position and in the written submissions and at the final hearing accepts that GG is a person for whom guardianship and administration orders may be made.
The Tribunal accepts the evidence that GG has autism spectrum disorder and an intellectual disability as recorded in the Disability Services individual plans for GG which Ms T signed in 2018 and 2019 and which she provided to the Tribunal in her bundle of documents on the day of the first hearing.
The plans record that GG has difficulty problem solving and that he requires significant supports including 24/7 supports required for his activities of daily life including personal care and daily living tasks.
The plans also note that GG has a history of aggression which can escalate to physical violence including self-harm and damage to property and threatening behaviour to others. There is reference to a number of admissions of GG to SCGH because of self-harm via ambulance and that at most times the ambulance service contacts the police for assistance.
In her evidence Ms T says that GG has had more than 30 hospital admissions for self-harm between 2015 and 2020. She said GG could not participate in the recent development of the plan with Disability Services or be interviewed in the course of the investigation by the Public Advocate's investigator in the lead up to the hearing because he was so traumatised, had been self-harming, had hit his head and was hurting himself as recently as January 2020 (ts 55 and 88, 12 March 2020).
Although not specifically addressed in his submissions it can be inferred that BG considers GG a person for whom orders may be made. BG was the original applicant for orders in 2013 and states he wishes to be appointed as GG's guardian should the need arise.
The Public Advocate submits that GG is a person for whom orders may be made.
The Tribunal finds that the presumption that GG is capable of making reasonable judgments his estate is rebutted by the medical and the other evidence.
The Tribunal finds that GG has a mental disability, being autism and intellectual disability, and he is incapable of making reasonable judgments about his estate. This finding is supported by the medical evidence which is not now challenged, GG's reported difficulty with problem solving and the complete control exercised by Ms T in the conduct of his finances which is demonstrated in the material she filed and in her evidence.
Although Dr M is unsure in his opinion about GG's capacity for personal decisions, the Tribunal is satisfied the presumption that GG is capable of reasonable judgments in respect of matters relating to his person is also displaced and finds that GG is incapable of looking after his own health and safety, unable to make reasonable judgments about his person and is in need of oversight and care in the interests of his own health and safety and for the protection of others. These findings are supported by the evidence of the LC, the applicants and Ms T regarding GG's significant self-harming and aggressive behaviours and his dependence on others for all aspects of his personal care.
The Tribunal finds that GG is a person for whom both administration and guardianship orders may be made.

GG's wishes

GG is reported to want to live with Ms T and did live with her for a period between 2015 and February 2018.
Ms T says that GG has been too traumatised to participate in any planning for his future care arrangements and he has not attended two meetings held with the LC to develop his plan. GG's own views and wishes about his services were not able to be obtained by the LC despite her requests.
The Public Advocate's investigator was also denied access to GG in the lead up to the hearing. After the first hearings telephone access was granted.
Because Ms T would not allow GG to be interviewed by the investigator prior to the hearing the Tribunal has been unable to obtain GG's wishes through that process.
GG attended the second hearing on 13 March 2020 and responded when prompted by Ms T. GG said it made him angry and he did not need guardianship (ts 122, 13 March 2020). He also said that carers had hurt his wrist. This allegation is not referred to in any other material before the Tribunal. Ms T explained that GG was saying the carers hurt him when they resist him (ts 138, 13 March 2020).
The investigator submits it is difficult to ascertain GG's views and wishes and preferences without Ms T being present. He says it is not known if GG had a say with regards to where he lives and that included staying at the service provider or his preferences for services. When his services were being discussed in the second hearing. GG said, 'I just want my spot back' and repeated this. Ms T explained GG meant '[h]e just wants his own ways, is what he is saying. He now has family. I'm there at the moment, he has family visiting at least every second day' (ts 137, 13 March 2020).
As noted GG was not involved in the planning meetings for the development of his new plan. Ms T confirmed that this was the case. There is conflict between Ms T and the LC about GG's acceptance of services and the Tribunal is not satisfied that GG's own wishes for his services or community access have been identified.
The Tribunal chose not to question GG in the hearing having regard to his history. GG was in unfamiliar surroundings and his mother was present and prompted his responses. The Tribunal is not satisfied that GG's wishes about his personal circumstances could be identified in this setting even if he had been questioned.

Is GG in need of administration and guardianship orders?

When the application was made in December 2019, GG was living in supported accommodation provided by the applicants.
On 23 December 2019 Ms T removed GG from that accommodation. GG is living now with Ms T in a rental property in her name in Perth. An email of Ms T dated 16 December 2019 to the service provider advises of the termination of GG's accommodation with them. The email has an intimidatory tone but Ms T says that she too has been threatened with legal action by the service provider.
Ms T reports that there were conflicts about the financial arrangements for GG for most of the 18 month period GG lived at the accommodation service. GG was discharged from SCGH to the accommodation in June 2018, Ms T produced an email from August 2018 in which the service provider states that GG will not be accepted back at the accommodation after a hospital admission because of unpaid fees.
The applicants say they had to pursue Ms T for payments of fees and GG's pharmacy accounts were unpaid causing two pharmacies to refuse to provide medications for him. The applicants say Ms T also failed to provide GG a regular allowance for his personal spending from the balance of his Disability Support Pension (DSP) despite requests that she do so. The applicants say that when asked GG said he was upset that his mother had not provided his money and this caused an escalation in his behaviours.
Ms T says that the service providers were demanding about money and that GG was being overcharged. She challenges some of the claims for property damage alleged to have been caused by GG and says that payments for damages were inappropriately deducted from GG's pension without authority. She says some of the charges were for improvements not repairs to the accommodation such as the installation of safety glass after GG suffered a laceration to his head after banging it on a window.
Ms T objects to GG being asked to sign a service agreement she had refused to sign (because of dissatisfaction with the location of the accommodation) which provided for a period of 90 days' notice of termination. The service provider initially claimed fees were owed by GG for this period but in the course of the proceeding said that this claim would not be pursued.
Ms T denied that she had received tax invoices for the unpaid pharmacy accounts (ts 44, 12 March 2020) but the material before the Tribunal provided by Ms T establishes that she did receive them. Ms T agreed that they may still be unpaid. Later Ms T challenged the accounts on the basis that GG was not being given the medications by carers (ts 45, 12 March 2020).
In relation to the personal allowance from the balance of his DSP for GG's outings, Ms T agrees that she was asked to provide this in May 2019 (ts 49, 12 March 2020) but in response says that the costs of GG's community activities should be met by a transitional funding grant. This is disputed by the applicant and Disability Services who say those funds were for payment of a support worker to support GG's community access and not for his personal spending.
In relation to his personal spending needs Ms T said that GG has access to her credit card for online purchases as he had memorised the number and this was a system which she preferred (ts 38, 12 March 2020). According to Ms T a 'top up Mastercard' had been arranged for GG into which she could deposit funds.
Ms T said that she had had groceries delivered to GG as she considered the food supplied by the service provider to be of a low standard.
The applicants say Ms T was difficult to contact. When GG tried to contact his mother or sisters their phones would be turned off. The applicants say that when GG could not reach them his behaviours would escalate. The applicants say Ms T's visiting arrangements with GG were inconsistent in that she would spend an intensive period with visits every day and then would be absent for up to a month and that this had been a pattern over the 18 month period GG had been with the accommodation service (ts 11, 12 March 2020). Ms T denies this and says while she lived in Esperance she flew to Perth every 10 days and was readily available by telephone. Although denied by Ms T the pattern of visiting is consistent and not unreasonable with someone who lives at considerable distance and must fly to Perth. Ms T agreed that the service provider records had had her Dianella address a property she had not lived in since 2018 but said that they knew she lived in Esperance (ts 41, 12 March 2020).
Ms T has complaints about the care provided to GG by the service provider which she says have been referred to Disability Services for arbitration. Those complaints include inadequate food, poor cleanliness, failure to give medications, failure to clean GG's teeth failure to undertake weekly urinalysis, blood pressure and blood sugar levels (this request was made by GG's sister E who is a student nurse and supported by Ms T (ts 24, 12 March 2020)), loss and damage to GG's furniture clothing. Ms T says that GG's bed had been disposed of without reference to her and this incident had brought her relationship with the accommodation service provider to a 'caustic level' (ts 51, 13 March 2020).
The applicants say that Ms T made complaints about staff and carers and did not want certain carers to work with GG. Ms T says she wrote to the service provider specifying that a certain worker should not work with GG but this had occurred on 1 December 2019 and caused GG to have an outburst. Ms T says that later GG had said that the carer abused him. Ms T was unsure of the words GG had used (ts 75 and 77, 12 March 2020). This was refuted by the applicants who say that GG when asked had no difficulty with this carer. They refer to the progress notes for that day in question and say the reason for GG's behaviour was that he had tried to telephone his mother and his sisters but their phones were switched off. The applicants report GG then became aggressive toward the staff member who locked herself in an office (ts 77, 12 March 2020). GG then ran away and the police were called to locate him. Ms T was not at the accommodation when this event occurred but says that the progress notes should not be believed because they were written by the carer in question.

Ms T says GG's feet were injured on the day he ran away and when she removed him from the accommodation on 23 December 2019 he could barely walk because the service had not sought medical attention for him (ts 78, 12 March 2020).
Although it is accepted that GG may have injured his feet on the day in question as he was bare footed, the Tribunal does not accept Ms T's evidence that GG could barely walk on 23 December 2019 because of injured feet. Ms T says she saw GG in the intervening period (between 1 December and 23 December 2019) on a number of occasions (ts 79, 12 March 2020) but says she did not seek medical attention for GG's feet until 10 Jan 2020 (ts 81, 12 March 2020). If GG's symptoms were as Ms T describes on 23 December 2019, the Tribunal considers it likely she would have taken him to a doctor before then. The medical report provided by Ms T notes that there is no infection and a referral to a podiatrist.
Ms T asserts that service providers, both in 2015 (ts 59, 12 March 2020) and more recently have traumatised GG. She described GG as incident free prior to the involvement of services by the guardian in 2013. This is inconsistent with the history described by the LC and the investigator.
In the Disability Services LC report, it is noted that formal accommodation and community access supports have now ceased for GG as Ms T has removed GG from the accommodation provider and the community access agency ended their service because of reported 'rude and aggressive behaviour' by Ms T. Ms T describes this as 'another false assertion' (ts 52, 12 March 2020).
The LC reports that both service providers had indicated GG engaged well with support staff when they were providing services to him but that challenges developed as result of their strained relationships with Ms T.
The LC reports that the accommodation service provider said GG was regularly without access to his pension for day to day expenses including medications. Concern was expressed about the capacity of Ms T to self-manage the accommodation funding and to manage GG's Centrelink pension.
The LC says that BG has contacted Disability Services requesting GG's contact details but Ms T had advised that GG does not want contact with his father and that BG is not to be provided with contact details.
The LC says that Ms T had advised that GG was too unwell to meet with the LC about the review of his plan when this was requested.
Current concerns of the LC are reported as :
•Ms T's history of removing GG from supported accommodation options which it is said may put his health and safety at risk;
•GG's vulnerability to financial exploitation;
•GG had not been involved in any planning meetings;
•There were no current supports engaged as a result of Ms T's delay in finalising the acquittal of outstanding self-managed funding; and
•GG was not accessing any meaningful activities in the community and the adequacy of safeguards and supervision in place was unknown.
In relation to the delay in the development of a new plan by Disability Services the LC says that $6,623 of the balance of self-managed funds for GG must be returned to Disability Services by Ms T before a new plan can be developed. The LC says there was a meeting with Ms T on 5 February 2020 about this and emails to her on 12 February, 18 February and 9 March 2020 to which Ms T had not replied.
On 13 March 2020, the day of the second hearing, Ms T provided evidence of the repayment of the funds to Disability Services on that day.
While acknowledging that the repayment had been made by Ms T, in an update of the report for the final hearing the LC reports that GG's plan had not progressed because Ms T had not advised the changes she wished to make to the plan and had not nominated a disability service organization to manage GG's funding. The LC reiterates that GG has been without access to funded services in the intervening period.
The investigator states that that Ms T was given a list of 80 service providers who may be able to provide services to GG. At the final hearing in April 2020 formal services had not yet resumed for GG.
In respect of GG's behaviours it is accepted that GG has significant ongoing issues. Ms T's evidence is that between 2015 and 2020, GG had 30 hospital admissions for self-harm (ts 59, 12 March 2020). Ms T says that prior to his admission to SCGH in February 2018 he had 25 incidents (of self-harm) in the two year period preceding that admission (ts 138, 13 March 2020). This is the period after GG was removed from supported accommodation in October 2015 and he was in Ms T's care. Ms T's evidence was that her own property was made unliveable because of property damage caused by GG (ts 40, 12 March 2020).
The lengthy three-and-a-half month admission to SCGH in 2018 under psychiatric care prior to GG moving to live in the supported accommodation illustrates the severity and persistence of this issue for GG and all those who care for him.
GG is reported to have demonstrated self-harming and aggressive behaviours whether in supported accommodation or with Ms T so her assertions that the deterioration in his behaviours is caused by the service providers may be her belief but it does not appear to be based on the history which is known to her.
E said in the final hearing the reasons she requested weekly blood and other testing of GG is there had not been a psychiatric evaluation of GG (ts 25, 1 April 2020) and GG had expressed suicidal thoughts in his notes. She was critical of the service provider in not addressing the issues but agreed that no request was made for a referral for psychiatric assessment by herself or Ms T (ts 27, 1 April 2020). She confirmed in the final hearing that GG had not been referred for psychiatric assessment since being removed from the accommodation provider in December 2019 (ts 28, 1 April 2020). If it is the case that GG is suicidal, E's proposal for psychiatric review of GG is clearly warranted however no progress has been made to achieve this in the three months since he left the accommodation.
Ms T says the rental property in which GG now lives was arranged in an emergency situation because GG was self-harming and was distressed about the lack of progress to move him closer to a house in Dianella or Mirrabooka (ts 138, 13 March 2020). She says she had turned her life upside down to set up a home for GG. At the hearing on 12 March 2020, Ms T said that she is living with GG 'at the moment, only to set up his support and accommodation' (ts 39, 12 March 2020).
Although Ms T asserts that GG does not like change (ts 156, 13 March 2020) the change made in GG's accommodation in December 2019 occurred without any involvement of the LC or apparent planning by Ms T for the provision for services for GG. This has had the effect that from December 2019 to April 2020 GG has not have any access to any funded services to which he is entitled.
Although the individual plans supplied by Ms T developed by Disability Services with her involvement in 2018 and 2019 identify that GG requires 24/7 support, Ms T now denies this and asserts that GG can be left on his own without supervision (ts 57, 12 March 2020).
Ms T said at the first hearing she did not have any safety concerns for GG (ts 58, 12 March 2020) who is according to her now 'capable and incident free' (ts 57, 12 March 2020).
Ms T did concede that in the past that GG was hit by a car on two occasions as referred to by the LC but she appeared to minimise these events (ts 91, 12 March 2020). Ms T acknowledges that GG ran away from the accommodation service provider in December 2019 (ts 93, 12 March 2020) and was self-harming as recently as January 2020.
Ms T assertions about GG's reduced care needs are in conflict with the documented history and her own evidence of his self-harming behaviours. Ms T now appears to minimise the risks to GG's health and safety.
Since there has been no access granted by Ms T to GG by Disability Services despite requests, there has not been an independent assessment of GG's current accommodation and care arrangements and whether they meet his identified needs.
It is not known how durable the current accommodation and care arrangements are as Ms T says she is living at the rental property only to set up services for GG. Mrs T says she lives in Esperance with her partner and will be getting married in August 2020. Her other children visit GG and are reported to provide respite but the extent of their involvement is unknown, one is a FIFO worker. Ms T says that a plan is being developed for GG's formal services but there have been delays which the Tribunal finds are the result of Ms T's delay in acquittal of the outstanding funds until the hearing of the application and since then due to her delay in identifying a service provider.
The LC reports that the current plan took some time to develop while GG was in hospital. Ms T says that the development of a plan for supports for GG would take three months as she had been involved in that process before (ts 116, 13 March 2020). The change in GG's accommodation and routines without the necessary planning and without the apparent involvement of the LC does not acknowledge GG's known behavioural issues and care needs and the past unsustainable accommodation arrangements for GG.
The Tribunal accepts the submission of the applicants, the LC and the investigator that the decision to move GG from supported accommodation in these circumstances may have put GG at risk.
Ms T acknowledges the need for long term planning for GG and the need for involvement of disability service providers in the care of GG (ts 138, 13 March 2020). However, the material provided from the applicants, from Ms T and the background provided by the investigator indicates a history of difficulty in maintaining services for GG either because of his challenging behaviours, or dissatisfaction with service provision by Ms T (or BG).
There have been previous occasions when GG has been removed from supported accommodation. By Ms T in 2015 (from a specialist service provider) and then again in December 2019. In the material provided by BG, he states that he too removed GG from accommodation when the Public Advocate was GG's guardian.
There has been a lack of cooperation by Ms T with the Public Advocate's current investigation. Although it is denied by Ms T the Tribunal accepts there was a history of refusal to communicate with or acknowledge the role of the guardian by Ms T when the Public Advocate was previously appointed guardian for GG.
The investigator asserts and the Tribunal accepts that there is concern about lack of access to GG in his present circumstances.
In light of material from Disability Services, the evidence of Ms T about GG's trauma and self-harming behaviour in recent months, her current statements about his reduced care needs and failure to progress further psychiatric intervention the Tribunal does not consider that less restrictive arrangements of Ms T acting as an informal substitute decision maker for GG meet his complex needs.
The lack of engagement of identified support services for GG, the refusal of access to Disability Services and the Public Advocate at GG's home address and the failure to access professional advice about the accommodation change for him indicate the need for independent oversight of GG's circumstances.
The applicants, Disability Services and the Public Advocate all contend that the informal arrangements whereby Ms T manages GG's DSP and self-manages his disability funding have not met his needs and that the Public Trustee should be appointed as the administrator of GG's estate.
Ms T has, according to her email dated 16 December 2019, been in dispute with the accommodation service provider about fees and charges (and other matters) for 18 months. The material submitted by her includes email exchanges over a lengthy period. Although she is GG's Centrelink nominee Ms T has been unable to resolve this issue.
The investigator asserts that Ms T has the responsibility to manage GG's funds and has failed to meet standards of accountability.
Overdue payments are reported by the investigator to have been made both to the service provider only after the application was made to the Tribunal and to Disability Services only after the first hearing. It is evident that the financial issues contributed significantly to the conflict between Ms T and the service providers.
In relation to the provision of an allowance for GG's day-to-day activities the Tribunal prefers the evidence of the applicants on this point. Ms T's assertions about the arrangements for GG's access to her credit card for online shopping for his personal needs was not persuasive and in any event this is not what was requested or what the Tribunal accepts was GG's wish. It is said that GG wished to have some control over his spending money, limited as it is. The Tribunal accepts the failure to provide this in a reliable and regular way limited GG's activities and access to the community. The Tribunal accepts it that may have contributed to GG's frustration and it is possible that this led to an escalation in his challenging behaviours as the applicants contend. However, this is not established since the triggers for escalation of GG's aggressive or self-harming behaviours have not been conclusively identified in the material before the Tribunal and the behaviours have been reported in a range of environments.
Although the applicants say Ms T was hard to contact, it is the case that she was living at considerable distance from GG, has other children and grandchildren and was working. It may be the case that Ms T had financial or other problems of her own and had difficulty dealing with the issues at distance, however if this is the case this too contributes to the need for independent oversight of GG's finances including his pension.
Although GG's estate is limited to his pension income, the Tribunal is satisfied that there is no less restrictive alternative and that the appointment of an administrator is required to address GG's financial needs in an effective measured way. This will include an examination of whether he has been overcharged for accommodation and whether he is liable for the funds said to be owed for damages reported by the accommodation service provider. The role of the administrator will also be to pay for any future accommodation wherever GG lives and to ensure that the balance of his pension is applied to his needs.
The Tribunal accepts the submission of the investigator that GG should have the protection of an administration order so that he is not subject to contracts for services to which he cannot capably consent and should not be liable for breach of those agreements when he is unable to control his own circumstances.
In respect of the guardianship application, the Tribunal finds that in respect of his accommodation and for the provision of services to GG there is an immediate need for further plan to be developed with Disability Services to respond to GG's complex needs.
GG has in the past lived in supported accommodation and it is understood at times in the past with both his parents. All agree that GG has said he would prefer to live with his mother and although he did live with Ms T between October 2015 and February 2018 this was not able to be sustained. Based on the history it is likely that given GG's support needs that supported accommodation will be required in the future.
In light of the difference between GG's assessed needs and Ms T's expressed views about potential risks it is possible that once assessed GG's current accommodation may be found not to provide sufficiently for GG's health and safety. If this is the case alternative accommodation options will be needed.
GG needs a substitute decision-maker who can work effectively both with Disability Services and any future service providers to engage and ensure continuity of services for GG. The Tribunal finds that Ms T has been unable to achieve this.
The Tribunal finds that GG needs a guardian to decide his services and where and with whom he should live.
In written submissions filed Ms T proposes herself for appointment as guardian to make decisions about GG's medical treatment, where he lives and services and how his pension and Disability funding is allocated.
In respect of medical treatment, Ms T's support for weekly intrusive testing of GG, including blood tests which were not ordered by his doctor, the lack of follow-up psychiatric care for GG and, in the view of the Tribunal her unreliable account of GG's health issues requires a substitute decision maker for GG to ensure he has appropriate treatment.
BG also proposes himself for appointment as guardian and administrator of GG's estate both at the final hearing and in a written submission received prior to that hearing.
The issue of contact GG has with others is also raised in the material before the Tribunal. It is said that staff at the accommodation service provider believed GG's father was dead. BG has contacted Disability Services seeking information about GG. Disability Services has sought direction from the Tribunal as to whether information can be given to him. E says that GG does not want contact with his father and that BG has substance misuse and mental health issues.
It is recorded in the earlier proceedings before the Tribunal that GG's parents are estranged and previously were in conflict. Although BG says he is prepared to cooperate with Disability Services and the guardian, historically at least this has not always been the case. Ms T handed up a letter from 2015 at the second hearing sent from BG to the delegated guardian of the Public Advocate. The letter is abusive and offensive and makes clear the level of animosity directed at the guardian and Ms T from BG.
BG says he will submit to weekly testing so that the truth of allegations made about his substance misuse can be determined (ts 36, 1 April 2020). He concedes he has been respondent to seven Violence Restraining Orders (VROs) presumably sought by family members over a ten year period (ts 38, 1 April 2020). The investigator says that the VRO in place from November 2017 has now expired.
BG says he has had no contact with GG for some years because of the terms of the VROs. He now seeks his appointment as guardian or jointly with the Public Advocate and to re-establish his relationship with GG. He asserts his relationship with GG is resilient.
Ms T does not seek her appointment as guardian for contact decisions (due to conflict with BG) and asserts that there is no evidence that GG cannot make contact decisions for himself (ts 30, 1 April 2020). She asserts that GG has expressed the wish not to see BG. Because of this it is argued there is no need for a guardian to be appointed with this function. The investigator takes the same position.
In the Tribunal's view, GG's vulnerability, the manifest conflict between his parents, BG's assertion that he wants contact and the request by Disability Services for direction from the Tribunal about releasing information to BG all indicate a need for a guardian to determine contact.
The investigator submits and the Tribunal accepts that it is difficult to ascertain GG's views and what his wishes are in relation to a range of matters. In the view of the Tribunal this could include contact with BG.
Ultimately, whether Disability services should provide information to BG about GG is not a matter for the Tribunal. In the view of the Tribunal the need for an independent guardian with lawful authority to manage this issue for GG is clear.

Appointment of a guardian and administrator

Although acknowledging that it is against his expressed wishes, the Tribunal is satisfied that there is no less restrictive alternative to the appointment of a guardian and an administrator for GG. Less restrictive options of informal family decision-making or cooperation with service providers to meet GG's needs have not been demonstrated.

Ms T asserts that she micromanages because GG is unhappy and her concern for GG is accepted. She asserts she is passionate and has plans for the establishment of appropriate accommodation and services for GG but this has not happened despite her extensive knowledge of GG's needs. Her assertion that she is best placed to be GG's guardian is not accepted because GG's complex needs require the identification and the ongoing provision of appropriate supports services and supervision of GG to meet those needs which Ms T has not been able to achieve.
The Tribunal is not satisfied that either Ms T or BG are suitable for appointment as guardian or administrator.
GG's parents are in conflict with each other and with service providers.
BG acknowledges he has been estranged from GG (he says unwillingly) for some years and wants to re-establish a relationship with him. BG's contact with GG is opposed by other family members. Even if the Tribunal could accept BG's appointment was appropriate (and it does not given the reported history) his appointment would be unworkable given family opposition.
In the view of the Tribunal, GG's parents demonstrate, in their own evidence and submissions and in the correspondence which has been provided to the Tribunal, an inability to deal with service providers who will be essential for ongoing GG's care and to his access to the community. This inability means in the Tribunal's view an independent guardian is required.
For these reasons the Tribunal makes the following orders.

Orders

The Tribunal orders:
Administration
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).

Guardianship
2.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is 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)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)To determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)To determine the services to which the represented person should have access.

3.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.
4.The administration and guardianship orders are to be reviewed by 1 April 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
18 MAY 2020