GK
[2018] WASAT 136
•31 DECEMBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: GK [2018] WASAT 136
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 11 JUNE AND 2 AUGUST 2018
DELIVERED : 2 AUGUST 2018
PUBLISHED : 31 DECEMBER 2018
FILE NO/S: GAA 1298 of 2018
GK
Represented Person
Catchwords:
Guardianship and Administration Capacity Need of a guardian and administrator Brain injury Rehabilitation
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(2)(c), s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 43(1)(b), s 43(1)(c), s 43(1)(d), s 43(1)(e), s 44, s 45, s 61(1)(a), s 64(1)(b), s 64(1)(c), s 64(1)(d), s 68, s 69, s 84, s 110ZD
Result:
Guardianship order made
Application for the appointment of an administrator dismissed
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
GK is a young indigenous man. At the time of writing these reasons he had reached 21 years of age.
In January 2018 GK sustained a hypoxic brain injury as a consequence of a cardiac arrest. He spent a period of time in hospital and the plan upon discharge was for him to undertake rehabilitation in a community based residential facility (residential facility).
In the end this did not occur, however in the time GK was still in hospital and was waitlisted to enter the residential facility, his mother PS made applications for the appointment of a guardian and the appointment of an administrator of his estate (applications).
The applications were made under the Guardianship and Administration Act 1990 (WA) (GA Act).
PS proposed that she be appointed GK's guardian and administrator.
The applications were heard on 11 June 2018 and 2 August 2018.
In the hearing on 11 June 2018, PS requested an adjournment so that she and GK could obtain legal advice and representation. The adjournment was granted.
At the substantive hearing which took place on 2 August 2018, PS advised that she had been unable to obtain legal representation but did not oppose the hearing proceeding.
The hearing was attended by GK, PS, and GK's father, BV from the residential facility, DD from the Office of the Public Advocate and VR, an advocate for PS.
Decision
I decided to appoint PS as GK's limited guardian to determine the services to which he should have access including but not limited to his participation in the National Disability Insurance Scheme (NDIS).
I dismissed the application for the appointment of an administrator of GK's estate.
I set a review of the guardianship order for 18 months pursuant to s 84 of the GA Act.
My reasons follow.
Relevant legislation
The primary concern of the Tribunal is the best interests of GK: s 4(2) of the GA Act.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of GK as expressed, in whatever manner, at the time, or as gathered from his previous actions: s 4(7) of the GA Act.
GK 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: s 4(3) of the GA Act.
Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for GK unless it is satisfied on the evidence that he is incapable of looking after his own health and safety, is unable to make reasonable judgments in respect of matters relating to 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.
Under s 64(1)(a) of the GA Act, the Tribunal cannot consider appointing an administrator of the estate of GK unless it is satisfied on the evidence that by reason of a mental disability, he is unable to make reasonable judgments in respect of matters relating to all or any part of his estate.
Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to GK the Tribunal must further determine whether he is in need of guardianship and administration orders. If the needs of GK can be met in a manner less restrictive of his freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act
If the Tribunal decides that GK is in need of guardianship and administration orders it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68 , s 69 and s 84 of the GA Act.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of GK then a plenary order should not be made. If limited guardianship and administration orders are made the orders must place the least restriction necessary on GK: s 4(5) and s 4(6) of the GA Act.
Evidence and submissions
The written material
GK's hospital admission was for the period 20 February 2018 to 8 May 2018. From that admission a number of reports were made available to the Tribunal. They are from April 2018, reports of a physiotherapist, occupational therapist (progress report) and medical officer and from May 2018 reports from a speech pathologist, social worker, occupational therapist (discharge report) and the hospital discharge summary.
In May 2018, a report was filed by the high care team of the residential facility (high care team).
A number of written submissions were filed by PS. A written submission was made by GK.
The hospital reports
In April 2018 the medical officer assessed GK as incapable of making decisions concerning his accommodation upon discharge, the services to which he should have access and his medical treatment. GK was also assessed as incapable of making reasonable decisions concerning the management of his estate which PS had specified as Centrelink income support and a motor vehicle valued at $1,500.
The occupational therapy (progress report) from April 2018 relevantly stated as follows:
•GK required verbal prompting to initiate all his activities of daily living. He was dependent for medication management, meal preparation, cleaning, laundry and bill paying and budgeting.
•GK was mainly oriented however, had poor sustained attention which was impacted by fatigue. He had difficulty dividing his attention between two activities.
•GK had poor working memory within tasks and poor day-to-day recall. He had reduced safety awareness.
•GK had severe impairment in executive functioning, poor reasoning and problem-solving in tasks. He was concrete in his thinking. He had poor initiation and continuation of tasks. He could follow simple one stage commands.
•GK's awareness had recently improved.
•GK was said to require a longer period of slow stream rehabilitation to maximise independence in functioning. He currently had 24-hour care needs.
•Due to his significant cognitive deficits GK would require assistance with simple and complex decisions particularly novel or new tasks that did not rely on his procedural memory.
By the time of discharge, GK appeared to have made some improvement. The occupational therapy (discharge report) relevantly stated that he was making slow progress in his rehabilitation cognitively and physically. He was considered to still require a longer period of slow stream rehabilitation to maximise independence and functioning. GK still had 24-hour care needs. He was said to engage well in therapy sessions. GK currently required minimal assistance for activities of daily living but continued to be dependent for domestic and community tasks. He still had significant cognitive deficits and would require assistance for financial decisions that did not rely on his procedural memory.
The speech pathologist stated that GK had shown improvement since his admission to hospital in February 2018 where he had presented as nonverbal and nil by mouth. GK was currently presenting with moderate cognitive communication impairment characterised by slow auditory processing and poor initiation of verbal communication. He had good access to language when he used it. He was considered to have excellent rehabilitation potential and his communication skills would continue to improve.
The social worker relevantly stated that GK resided with his mother (PS) and five siblings. PS was on the priority list of the public housing authority for a five bedroom home.
GK left school in year 11. He was currently unemployed and had been sourcing a trade apprenticeship prior to his hospital admission.
GK had been on the (Centrelink) youth allowance but this payment had ceased in August 2017. The hospital welfare officer had assisted GK in reapplying for the youth allowance and applying for the disability support pension.
GK was subject to a number of criminal charges that were before the Magistrates Court.
The social worker stated that PS was GK's primary support and next of kin. GK's father had not attended the family meeting in hospital nor had he been involved in discussions regarding GK's discharge plan. GK's father was said to have made infrequent visits to the hospital ward and had been verbally abusive towards GK, PS and ward staff.
The residential facility (high care team)
GK was admitted to the residential facility on 8 May 2018 after a threeday trial.
PS appeared to be in favour of the admission and was working positively and collaboratively with members of the rehabilitation team. GK was reported to be motivated and engaged.
PS appeared to be open to the Public Trustee being appointed as the administrator of GK's estate and acknowledged difficulties with complex form filling and in securing appropriate income support for GK.
PS presented to the high care team as a very caring parent who was taking an active involvement in GK's rehabilitation and seeking the assistance of her extended family and her other children in order to facilitate this.
However, on 11 May 2018, PS attended the facility accompanied by GK's father. She appeared highly stressed and somewhat agitated. She is reported to have said that GK was on too much medication and indicated that he should be taken off his medication as there was nothing wrong with him.
This appeared to the high care team to be a significant shift in PS's views and wishes for GK which she declined to discuss at the time. PS presented as anxious and under duress in the company of GK's father and influenced by his views.
The high care team reported that GK's father made assertions that GK had been kept in hospital for five months, that he didn't need the medication he was prescribed and that he didn't trust the team. GK's father was said to have presented as verbally aggressive in tone and attitude.
PS later returned alone and presented significantly calmer to the high care team although still resolved to discharge GK. She agreed to a referral letter to the relevant Aboriginal medical service.
PS made subsequent contact with the high care team with the support of an advocate. She indicated a willingness to consider potential options for GK's rehabilitation by the community team of the agency operating the residential facility in collaboration with the Aboriginal medical service. However it was the view of the high care team that this option would not be as effective as rehabilitation in the residential facility.
It was the view of the high care team as stated by BV, that there was a limited window of opportunity for GK to get the best from an intensive rehabilitation process. It was noted that GK remained a high falls risk which could be dangerous as he was being prescribed blood thinning medication for his cardiac condition. GK was due to have neuropsychological testing which would have informed the rehabilitation process.
PS
PS stated that GK was making great progress and was extremely happy to be back home with his family. His speech was improving and he was communicating verbally with family and friends. The family understood the need for GK to continue with his rehabilitation and he had agreed to participate fully.
GK had been granted the disability support pension (Centrelink). His finances were in order. His outstanding fines were being paid by a repayment arrangement as was a debt for ambulance services.
GK was now in a medical fund.
GK's criminal matters had been finalised. He had received a small fine and had been placed on a 12 month good behaviour bond. He had been given a spent conviction and had signed the court papers himself.
PS said she was GK's full-time carer and nominee for Centrelink purposes. GK was under the care of the Aboriginal medical service which had assisted PS in formulating a plan for his needs. He was being closely monitored by his general practitioner and had regular check-ups. He was attending physiotherapy twice a week for three hour sessions.
PS said she had applied to the National Disability Support Scheme (NDIS) for GK to be a participant and was planning to speak with the relevant Local Coordinator of Disability Services.
PS stated that she had been advised to make the applications when GK was in hospital. She did not understand the process involved and would have welcomed the support of an indigenous worker at the time.
PS said that separation from family was rarely thought about as it was against cultural norms which made living in a clinical environment (the residential facility), very difficult. She said she had been under the initial impression that GK's time in the residential facility would be shortterm not the two years indicated by BV.
PS stated that she and GK's father separated many years ago. He had not participated in the process of GK's rehabilitation other than hospital visits. She said that GK's father had no influence over the decisions she made concerning GK.
GK
In a letter dated 18 May 2018 GK (assisted by VR) expressed the wish that he be able to live at home with his mother and siblings. He felt safe and loved with his mother looking after his personal and financial needs.
Discussion of the issues
GK sustained a serious brain injury as a consequence of a cardiac arrest. All the medical and allied health evidence points to a compromised ability to make reasonable judgments concerning personal and financial matters and a compromised ability to respond to his care and support needs.
I am satisfied on the evidence that GK is a person for whom guardianship and administration orders can be made. He is incapable for the purposes of the GA Act.
Although GK has improved in his cognition and functioning since his admission to hospital in February 2018 he clearly retains deficits in his mental state and physical abilities.
GK needs consistent care and supervision in the context of ongoing rehabilitation. Left to his own devices he would not be capable of looking after his own health and safety.
I am satisfied and declare that GK meets the requirements of s 43(1)(b) and s 64(1)(a) of the GA Act.
The question that follows is whether GK is in need of a guardian and an administrator of his estate or whether his needs can be met by other means less restrictive of his freedom of decision and action: s 4(2)(c) of the GA Act.
It is common ground that GK needs and therefore would benefit from rehabilitation. From a wholly objective standpoint there is a credible argument that the most comprehensive rehabilitation would occur in the residential facility which is a facility specialising in long-term recovery from a brain injury.
At first glance this is what GK needs and deserves.
However it is self-evident that rehabilitation cannot succeed unless GK is committed to it and it takes place in a setting in which he feels contented.
Whatever the merits of the residential facility, GK and his family do not support him living away from his family for a long period.
An appointed guardian could not compel GK to have his rehabilitation take place in the residential facility. It is not a secure facility and although compromised, GK is mobile. I am of the view that any such action would quickly become counterproductive given GK's strong feelings on wanting to be with his family.
In the circumstances PS has done commendably well. She is clearly devoted to her son and is a strong force for GK's welfare having had to deal with his sudden disability and in the navigation of the medical and hospital system.
I am satisfied that PS is doing what can be done to facilitate GK's rehabilitation in the community. It is no easy task and there is a risk it may overwhelm her. However, currently there is no practical alternative.
In light of the current circumstances it seems to me in GK's best interests that PS be appointed his guardian. That need arises to ensure that PS is able to advocate for and secure the best support services for GK to enhance the prospects of his rehabilitation. This will include navigating the NDIS.
PS can continue to make those of GK's treatment decisions that he cannot make himself under the person responsible provisions of the GA Act: s 110ZD.
In my view there is no need for an administration order currently. GK has a small and simple estate. His only source of income is the disability support pension and I am satisfied PS (together with GK) can manage that income support. As GK's nominee for Centrelink purposes, PS can deal with any enquiry that may arise in respect of GK's entitlements.
It appears that PS has made repayment arrangements for GK's debts.
The application for the appointment of an administrator of GK's estate can therefore be dismissed.
I have decided to set the review of the guardianship order in 18 months.
Orders
The Tribunal declares that GK:
(a)is incapable of looking after his own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to his person;
(c)is in need of oversight, care or control in the interests of his own health and safety; and
(d)is in need of a guardian,
and the Tribunal orders that:
1.The administration application is dismissed.
2.PS of [address] is appointed limited guardian of the represented person with the following function:
(a)To determine the services to which the represented person should have access, including but not limited to the represented person's participation in the National Disability Insurance Scheme (NDIS).
3.The guardianship order is to be reviewed by 2 February 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J Mansveld, (MEMBER)
31 DECEMBER 2018
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