JTH
[2025] WASAT 68
•8 JULY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JTH [2025] WASAT 68
MEMBER: MS F CHILD, MEMBER
HEARD: 9 APRIL 2025
DELIVERED : 8 JULY 2025
FILE NO/S: GAA 6071 of 2024
JTH
Represented Person
Catchwords:
Guardianship and administration - Review of guardianship and administration orders - Represented person with diagnoses of Schizophrenia - Post traumatic stress disorder - Mild intellectual disability and past head injuries - Whether the represented person remains a person for whom guardianship and administration orders may be made - Wishes of the represented person not to have a guardian and administrator - Whether in need of orders - Mother proposes self for appointment as guardian - Suitability for appointment as guardian - Ability to perform the functions of a guardian - Mother not suitable for appointment as guardian - Public Advocate and Public Trustee reappointed
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 40, s 43(1)(b), s 43(1)(c), s 44, s 64(1), s 68
Result:
Public Advocate reappointed limited guardian
Public Trustee reappointed plenary administrator
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
FY [2019] WASAT 118
GC and PC [2014] WASAT 10
SAL and JGL [2016] WASAT 63
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These are the reasons of the Tribunal on applications made under the Guardianship and Administration Act1990 (WA) (GA Act) in respect of JTH.
The JTH is a 21 year old man who has a complex mental health history with a number of diagnoses, the most recent being schizophrenia diagnosed in August 2024. He has previous diagnoses of mild intellectual impairment, ADHD, Post Traumatic Stress Disorder and possible acquired brain injury due to repeated head injuries.
Guardianship and administration orders were first made for JTH in 2023 following an application by the treating team of a hospital where he had been admitted as an involuntary patient under the Mental Health Act 2014 (WA). His admission followed him being brought in by police and ambulance after an assault by him on his mother and younger brother.
Since that time JTH has had further lengthy admissions to hospitals. Since his most recent discharge from Graylands Hospital in late 2024 he has lived in supported independent living accommodation (SIL).
Review of Orders
The original orders made in February 2023 appointed the Public Advocate as JTH's limited guardian. The Public Trustee was appointed as the plenary administrator of his estate and orders made due for review on 16 February 2025. The guardianship order was reviewed earlier on the application of the Public Advocate on 21 August 2024 and amended to include additional functions. The guardianship order now under review dated 21 August 2024 is as follows:
…
The Public Advocate … is appointed the limited guardian:
(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;
(e)to determine the services to which the represented person should have access;
(f)as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person;
(g)to seek legal advice and representation on behalf of the represented person, and to advocate in relation to any police investigation, criminal charges or related proceedings;
(h)to decide whether to give or withhold consent to the use of any restrictive practices proposed in any behaviour support plan developed from time to time for the represented person in compliance with the requirements of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018.
…
4.The guardianship order is to be reviewed by 17 February 2025.
The review hearing was first convened on 5 February 2025 but the review did not proceed on that day and the Tribunal differently constituted heard the review on 9 April 2025. The decision was reserved. There has been a delay in the determination of this matter as the transcript of the hearing did not become available until 20 June 2025.
I have decided to confirm the orders appointing the Public Trustee as administrator and the Public Advcoate as JTH's guardian.
These are the reasons for my decisions.
Legislation and principles to be observed
To appoint an administrator his estate either initially or on review of an order I must be satisfied that JTH is unable by reason of a mental disability to make reasonable judgments about all or any part of his estate and that he is in need of an administrator of his estate.[1]
[1] GA Act, s 64(1).
To appoint a guardian either initially or on review I must be satisfied that JTH is:[2]
(a)incapable of looking after his own health and safety;
(b)unable to make reasonable judgments about his person; or
(c)is in need of oversight care or control in the interests of his own health and safety or for the protection of others and is in need of a guardian.
[2] GA Act, s 43(1)(b) and s 43(1)(c).
If satisfied that JTH is a person for whom orders can and should be made, I must then consider who should be appointed[3] and the scope of the authority and the duration of any orders made.
[3] GA Act, s 68 and s 44.
In all proceedings under the GA Act the Tribunal must observe the principles as set out in s 4 of the GA Act.
The principles provide that the primary concern of the Tribunal is the best interests of JTH.
The principles also provide that JTH 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.[4]
[4] GA Act, s 4(3).
The principles also say that orders should not be made unless they are needed; if the needs of the person concerned can be met by less restrictive means then orders should not be made.[5] If an order is made it should be in the least restrictive terms possible.[6] A plenary guardian should not be appointed if a limited order will meet the needs of the represented person.[7] Finally, the principles require that in considering any matter relating to JTH , I should seek to ascertain his wishes as expressed at the time or gathered from his previous actions.[8]
[5] GA Act, s 4(4).
[6] GA Act, s 4(6).
[7] GA Act, s 4(5).
[8] GA Act, s 4(7).
Having regard to the provisions to which I have referred and principles in the GA Act, the first question then, is:
(a)is the presumption of capacity set aside and does JTH remain a person for whom a guardian and administrator may be appointed?
(b)If so, does JTH continue to need those orders or are there less restrictive means by which his needs may be met?
(d)If JTH is in need of guardianship and administration orders, who is suitable for appointment in those roles?
(e)What are JTH's wishes?
(f) What functions should be included in any orders made?
(g)When should the orders be reviewed?
Evidence and material before the Tribunal
A number of documents were filed for the review and I have also had regard to earlier reports held on the file of the Tribunal for the previous proceedings which include specialist assessments and reports which provided background information including:
(a)a medical guide from a Dr ST a psychiatrist from Mental Health Services dated 24 December 2025 which states that JTH has diagnoses of schizophrenia, intellectual disability, acquired brain injury and PTSD. His condition is described as fluctuating. The opinion given is that JTH is incapable in all spheres of decision-making. JTH is described as severely impaired with intellectual disability and acquired brain injury and will need support in all areas of decision-making. The opinion is given that JTH lacks capacity to make an EPA (enduring power of attorney) or EPG (enduring power of guardianship) or an advance health directive. In respect of JTH's attendance at the hearing it is said that he has a tendency to become mute in catatonic presentation and it is unpredictable when that will happen which will make it difficult for him to attend and express himself.
(b)a medical guide from Dr AK a general practitioner, dated 9 December 2024 states that JTH has an unclear diagnosis. His condition is described as a static one and the doctor is unsure of his capacity in all spheres of decision-making. The report notes that JTH has difficulty communicating: 'slow in processing information and [relay]back'.
(c)Ms JD, Occupational Therapist in an assessment dated 2 February 2025 reports JTH has diagnoses of Post Traumatic Stress Disorder, Attention Deficit Hyperactivity Disorder, schizophrenia, intellectual disability, anxiety, depression, Cluster B personality traits, Obsessive-compulsive disorder and selective mutism. The assessment relied on previous reports and collateral provided by other professionals as JTH would not participate in the assessment and presented with mutism. The main areas of disability identified were in the domains of life activities and understanding and communicating where JTH scored a severe level of disability for 'getting along with people and understanding and communicating'. The report states that JTH's cognitive capacity was strongly impacted by his mental health. He was reported to experience reduced executive functioning skills and reduced insight into the effect of his disability; which was evident in his belief that he does not have a disability. His mother is reported to discuss with him that she does not believe he requires medication to manage his disability and that this has influenced his acceptance of his disability as well as his capacity understand and identify when he requires support to manage the symptoms he experiences. As a result he has had a history of medication non-compliance. JTH's mental health and disability is reported to affect his expressive and receptive communication and when experiencing fluctuations with his mental health and communicating with unknown others he can experience selective mutism. Collateral information from previous reports indicates he has challenges understanding information provided to him and has historically presented with disorganised thoughts and will respond with single word answers. These challenges with communication impact on JTH's capacity to self-advocate and request help when needed. It is recommended that he receives speech pathology support to build his communication skills. As identified in his behaviour support plan JTH presents with the following behaviours of concern; emotional dysregulation, property damage, physical aggression, social withdrawal, disassociation, mutism, alcohol and substance use, paranoia and delusions, medication non‑compliance and sexualised behaviours. Due to the history of violent behaviours … there are restrictive practices regarding locking away of knives and sharps unless supervised when preparing food. The supports [workers] are reported to note that JTH has not consumed alcohol within the home unless provided by his mother during scheduled visits … [and] noted this had previously been provided to him hidden in takeaway bags however he had recently informed staff when this had been provided so he can be supported to behave appropriately.
(d)A Home and Living Assessment report by an Occupational Therapist dated 28 August 2024 states that in the preparation of the report the author reviewed a number of documents including A draft Interim Behaviour Support Plan dated August 2024, A Working diagnostic report from Prof S dated 30 August 2024, A cease and desist letter dated 5 August 2024, an ED discharge summary dated 22 December 2023 (discharged against medical advice), a psychiatrist letter from Dr LH. From these and other materials referred to, the author reports that [JTH] is severely impaired in his daily functioning, fully unable to carry out any instrumental activities of daily living, and with limitations on basic ADLs' [activities of daily living]. The report sets out significant behavioural challenges demonstrated by JTH. The report notes that JTH has experienced significant trauma throughout his life. His mother and father separated when he was eight years old, his mother re-partnered with his stepfather who died by suicide in early 2023. An extensive history of family domestic violence perpetrated onto and by JTH over many years is noted. In December 2021 JTH was involved in a serious motor vehicle accident with his father and stepfather also in the car. This event was severely traumatic for JTH due to him witnessing the injuries his father and stepfather sustained as well is injuries he himself. His father sustained an acquired brain injury and his stepfather sustained visibly critical injuries. The report notes that JTH's father now requires 24/7 care from JTH's paternal grandparents. JTH was reported to have been involved in another motor vehicle accident on 22 December 2023 when driving while intoxicated without a motor driver's licence and reportedly driving his mother's car which was written off. He presented to hospital but discharged against medical advice. A family history of psychiatric illness is also reported including his father's diagnosis of bipolar disorder, his mother's experience of postnatal depression and continued struggle with mental health challenges and his maternal grandmother with a diagnosis of schizophrenia. JTH is reported to have witnessed his mother's suicide attempt in March 2020 and lost his stepfather to suicide in early 2023. At the time this occurred JTH was in hospital and expected his stepfather to visit him. JTH is diagnosed with Complex Post Traumatic Stress disorder a condition that occurs in response to prolonged or repetitive exposure to traumatic events. JTH is reported to have significant difficulties with regulating his emotions leading to physical incidents with others including family members. He is reported to experience persistent suicidal ideation and a history of hospital admissions to ensure his safety. A number of hospital admission are recorded 14 days in 2020, 9 days involuntary in May 2022, 3 days in October 2022, 107 days involuntary from January - April 2023. The current working diagnosis is of schizophrenia with catatonic features. The working diagnostic report records that that JTH 'meets the DSM-V criteria for catatonia, … reportedly demonstrating these symptoms for six years' … 'developing of cluster B personality traits. Evidence from his complex psychological history current presentation and ongoing significant risks associated with his mental health it is recommended that he requires 24-hour supports to ensure his safety and to assist him in managing his health and well-being. It is said that JTH has had limited stability throughout his life due to multiple psychiatric admissions and ongoing challenges with his family situation, impacting his ability to develop independent living skills. Furthermore [JTH's] conditions are reported as life long impacting his cognition and ability to manage living on his own. He therefore requires stable safe and supported accommodation. JTH is reported to experience intense frequent and unpredictable behaviours and currently requires 2-to-1 supports to ensure his and support worker safety. An image included with the Cease and Desist letter shows JTH sister with a swollen lip which was reported to be caused by JTH.
A number of risks are identified if JTH does not receive additional funding support to secure appropriate supported accommodation including hospital admission, homelessness, incarceration, self neglect, medication non adherence, escalation of behaviours of concern, self harm and exploitation.
(e)A neuropsychological assessment by Dr BL dated 3 August 2023. This assessment concludes that JTH displayed almost global impairment with his overall intellectual function falling in the extremely low range (2nd percentile). Other cognitive domains including tasks of speed of processing, new learning, memory, working memory, executive functioning were said to be commensurate with this. The assessment was reported as consistent with a neuropsychological assessment conducted in 2020 but showed a decline from one conducted in 2015. The causes for JTH's impairment were said to be multifactorial: 'Complex trauma and mental health difficulties are certainly contributing to his clinical and psychometric presentation and may explain it in its entirety'.
(f)A neuropsychological report dated 18 September 2020 by Dr FA refers to a long history of learning problems at school, a diagnosis of ADHD and that JTH reporting he began smoking marijuana at age 9 describing his use as heavy. JTH reported multiple instances of being hit in the head and being knocked out while fighting with others. He said he was king hit in February 2020 and his head stamped on on multiple occasions. He reported difficulties with remembering information day‑to‑day and said he had 'no memory'. He identified that he struggles with understanding words and generating what he wants to say and often feels he doesn't make sense to others. He reported significant impulsivity and struggling with complex skills such as planning. His cognitive and adaptive functioning fell predominantly with the extremely low to very low range representing a significant impairment compared to same age peers. The report notes that while his basic literacy skills were within expectation for age he had significant difficulties making meaning from the text. The report concludes 'there are multiple factors which may be contributing to his presentation including long-standing substance use beginning in the developmental period, PTSD symptoms, self-reported multiple head injuries, possible ADHD symptoms however school reports suggest limited academic achievement which suggest he experienced learning problems prior to beginning substance use. On balance when taken together the working diagnosis is mild intellectual disability'.
(g)A report from the managing director of the SIL accommodation service provider, a registered nurse dated 16 December 2024 reports that JTH enjoys spending time with his mother but her own mental health challenges limit her ability to fully support his recovery. Her influence is also said to affect his medication routine as she sometimes discourages him from taking his prescribed [medication] based on [her] personal views that may not be medically sound. In contrast it is said that JTH maintains a stable and supportive relationship with his paternal grandmother who provides a more reliable source of emotional support. He has minimal to no contact with his biological father. JTH has a diagnosis of schizophrenia for which he has prescribed medication. JTH's condition is said to have diagnostic complexity' including ADHD PTSD intellectual disability possible ABI query autism spectrum disorder. The opinion is given that JTH may be able to make simple financial decisions that may include knowing his budget for groceries although he will be assisted through support staff. It is believed that he may not be able to make complex financial decisions. As he had only been in the placement for one month it was difficult to make a definitive assessment however based on the available information it is assumed he may not currently be capable of making financial decisions which fully aligned with his own interests. JTH is reported to be vulnerable to the influence of others and as such at risk of exploitation. Based on responses he provided during his first appointment with his psychiatrist on 11 December 2024 when asked if he had any mental health concerns JTH is reported to say that he does not have any. This suggests that he may have limited insight into his medical condition however he did acknowledge being prescribed olanzapine. According to the report JTH's health and safety are at risk as his mother's interference with his medication intake may lead to medication nonadherence which could result in escalated behaviours and worsen his condition. Additionally, his increased alcohol consumption poses a further risk as he was advised by his psychiatrist to avoid alcohol and other drugs due to potential interference with his medication.
(h)An occupational therapist assessment dated 2 February 2023 undertaken during a long hospital admission notes that JTH has experienced a long and detailed history of trauma and domestic violence. He is described as having reduced emotional regulation skills as a result of his diagnosed PTSD and impaired problem solving and reasoning as a result of his mild intellectual disability. The functional impact of these impairments is that JTH is said to be prone to aggressive and violent behaviours. At the time of the assessment his mother had reported a severe carer burden in the context that her partner had recently died by suicide and she was caring for 5 younger children. JTH's violent behaviours had been directed to his peers, his mother, stepfather and siblings. In one incident he reportedly knocked his mother to the floor requiring a police escort to hospital after a brief argument. It is suggested that the violence directed towards his family could be linked to the many years of witnessed domestic abuse and therefore with appropriate support away from his family he may be less prone to these behaviours while he learns strategies to regulate his emotions.
(i)Hospital discharge summaries:
Sir Charles Gardiner Hospital (SCGH) admission from 2 August 2024 to 10 September 2024 following which JTH was admitted to Graylands Hospital. The summary records that JTH was brought in by police after running away from home. A working diagnosis of Hebephrenic Schizophrenia with catatonic features, comorbid intellectual disability and PTSD are given. The notes record Discharge to Graylands after a 'massive code black; verbally and physically abused a security guard unprovoked'. Noted that [patient] requires security guards and is not to Discharge Against Medical Advice due to high risk of harm to self and others.
Joondalup Hospital admission 21 November 2023 - 13 December 2023 records JTH being brought in by ambulance following 2 suicide attempts. It records a 107 day admission to St John of God Midland (SJOG) from January to April 2023 'discharged on sodium valproate but non adherent post discharge'.
SJOG Midland 10 January 2023 - 27 April 2023 refers to a long admission under the MHA after suicidal ideation after an argument with his mother. Violent unprovoked attacks on his mother and brother reported to be the latest in a series of incidents over the previous 12 months. Later the summary records that JTH was eventually discharged home to his mother after numerous occasions where he did not return from leave with family in the agreed time and his bed was eventually lost to a patient in ED. JTH was 'to await NDIS accommodation'.
(j)A report from JC a social worker Graylands Hospital from the admission of JTH to Graylands from 10 September to 11 November 2024. The report states that JTH was compliant with his treatment while in hospital but his insight into his medical condition and his treatment support and accommodation support needs was limited. JTH is said to require intensive supervision and support for his recovery. He was thought to be vulnerable to financial exploitation due to his cognitive impairment. The report notes JTH had previously been evicted from a respite placement due to a violent incident. During an admission to SCGH immediately prior to the Graylands admission he was under 2:1 supervision for unpredictability. Despite this he had assaulted a security guard who required medical treatment. JTH was reported to have a close relationship with his mother and grandmother. His mother visited Graylands Hospital during his admission. The report goes on to say 'However, due to her disruptive behaviours and influences on [JTH's] positive treatment [JTH's] mother does not believe [JTH] requires mental health treatment she was banned by Graylands Hospital executives from visiting [JTH]. The guardian is also reported to have consented to the restriction on contact as within the functions of the guardian. [JTH's] grandmother is described as the main family support to JTH during the admission.
(k)In a report dated 9 January 2025, the Public Trustee reports that JTH has supports to assist him to communicate requests including his grandmother and service providers. The report notes that a referral has been made to the Public Trustee's legal team regarding a personal injuries claim. The trust manager reports that JTH receives a Disability Support Pension. At the time of the report dated 1 January 2025 he had a debt to St John Ambulance of $4,108.
(l)Reports of the Public Advocate dated the 31 January 2025 and 28 March 2025 were filed. The guardian reports that following his discharge from Graylands hospital JTH's NDIS plan was reviewed and increased to include home and living components. Currently JTH is reported to be living in a SIL accommodation receiving drop in supports and appearing to be settling well and living more independently. Since leaving the family home JTH is said to have been more engaged with NDIS supports and has a new specialist support coordinator, behaviour support practitioner and occupational therapist [and] making progress in understanding his disability needs. Prior to this period of stability the guardian refers to the incident of domestic violence which occurred in July 2024 at the family home by JTH against his mother witnessed by his siblings. JTH then went missing and there were concerns about his welfare. He was subsequently admitted to SCGH and underwent psychiatric review and subsequently a further diagnosis of schizophrenia was given. The guardian notes that it was during this admission that JTH assaulted a security guard. JTH was charged with assault on a public officer. The Public Advocate reports that a Violence Restraining Order (VRO) sought by his step‑grandparents and cease and desist letter were in place which prevented JTH from returning to the family home where his mother and siblings were then living. This property is owned by his step‑grandparents who had reported threats to JTH's siblings and property damage.
The delegated guardian reports that JTH's family dynamic is complex and there has been a significant history of trauma which his mother acknowledges. It is reported that this is the second trial of NDIS funded accommodation, the first was unsuccessful due to challenging behaviours, lack of engagement and difficulty of service providers to contact JTH or his mother and his desire not to live in supported accommodation.
The guardian reports JTH's mother agrees that JTH should be housed independently as she has struggled to manage him at home. Their relationship is described as complex one and both at times felt the system has let them down. Prior to moving into the SIL, JTH had been living with and paying board to his mother at the family home.
The guardian reports that a contact plan was implemented since JTH's discharge from Graylands and move to SIL with a structured routine with oversight prior to resuming extended periods with his family or overnight visitations was recommended (by the treating team) to prevent escalations and JTH being overwhelmed while settling into his new medication and routines. The guardian reported that several incidents had occurred where agreed terms of contact were disregarded and the guardian suggested that contact may need to be further limited. The guardian indicated that NW had previously requested that JTH be dropped at the family home which was a breach of the cease and desist notice placed on him by his step‑grandparents which the guardian asserted placed JTH at risk of arrest for trespass. In an update dated 26 March 2025 the guardian reports that JTH had been in regular communication with his mother by telephone and that NW now wishes that JTH not be under guardianship. NW is reported that JTH has matured and the previous problems have resolved.
The guardian asserts that NW has coached and encouraged JTH to state that he does not need a guardian but will continue with his NDIS supports. The guardian states that as JTH lacks insight into his disability related care needs and he may disengage with supports if he were to return to his NW's care.
The guardian reported that after an agree contact visit for JTH's 21st birthday there was a serious incident upon their return to the SIL following the terms of the contact arrangements not being complied with. JTH was reported to be heightened and displaying aggressive behaviours towards his supports. His safety was said to be placed at risk where he was observed to lie down on the road in the dark and allegedly physically assaulted a support worker and damaged a vehicle. The police were called but no charges were laid.
According to the guardian's report the accommodation provider has banned NW from the SIL property due to what is said to be their duty of care to the other residents and issues caused by past visits. The guardian reports that JTH continues to see his paternal grandmother, maternal grandfather and aunt on several occasions.
The Review hearing
The review was heard on 9 April 2025. JTH, his mother NW and grandfather GW attended in person and the delegated guardian of the Public Advcoate attended by telephone. NW advised that she had attended the hearing at the Tribunal from hospital where she had been admitted the previous week. A support worker also attended as a support to JTH.
NW said that at the time the orders were originally made she had just lost her fiancé to suicide and that JTH was 'extremely symptomatic from the car accident. That was part of the reason her partner had committed suicide'[9]. She said she had six children and was grieving and trying to facilitate a space for all the children to grieve. She said that JTH was showing signs of frontal lobe damage plus the trauma of an accident where JTH had been a passenger in the car which had hit a tree travelling 170 kilometres per hour.'[10] She later described the family as 'a family in major crisis'.[11]
[9] ts 6, 9 April 2025.
[10] ts 6, 9 April 2025.
[11] ts 10, 9 April 2025.
NW said that JTH had made so much progress as far as character building, isolating his triggers and managing his emotions. She said he had come along way from where he was to where he is now.[12] NW said that JTH was ready to come home and be with his family so [that] the family can grieve, and do family therapy, and sit around the dinner table and have family dinners … NW went on to say 'Because for the last 2-3 years we have been grieving not only [her partner] but each other and that has really hindered my mental health'.[13] She said that JTH is her first born child and to watch him perish (sic) the way he did, it was just really horrible for [her] as she was overwhelmed with grief.[14]
[12] ts 7, 9 April 2025.
[13] ts 7, 9 April 2025.
[14] ts 7, 9 April 2025.
NW said that JTH had prepared a written statement and wanted to read it out in the hearing. She said she had gone over the notes that JTH had written the night before and these showed how closely in sync she and JTH were that [they] are all grieving each other.[15] She said that JTH was lonely and isolated and that unrealistic conditions had been placed on him in the SIL. She said she could manage JTH and that JTH could actually manage himself. She said that JTH could navigate his own way, could do his own banking. She said 'if we keep him at this disabled level, that's actually the disability.'[16] She said she believed that guardianship needs to possibly be removed and said they carry on with the NDIS package that she could step back in as guardian and JTH advocate for himself. She said JTH is 21 can take his own medication could navigate public transport and can cook a meal.[17] She later said; Because if you're 21 years of age and can advocate for yourself, you don't technically need a guardian.[18]
[15] ts 7, 9 April 2025.
[16] ts 8, 9 April 2025.
[17] ts 8, 9 April 2025.
[18] ts 31, 9 April 2025.
NW acknowledged the 'immense part guardianship' had played (to get JTH to where he was now), with time away from each other and giving JTH some independence away from his family[19]. She said a medication had been found that was working and that [JTH] had had stabilised and he could self administer the medication. NW said that JTH was 'fine' taking his medications and was aware of his triggers. She said that she wanted to keep NDIS and to work with the support coordinator. She said that JTH needed to continue with appointments with psychiatrists and youth work[20]and anger management.[21] She proposed that he have cognitive brain therapy.[22]
[19] ts 7, 9 April 2025.
[20] ts 9, 9 April 2025.
[21] ts 12, 9 April 2025.
[22] ts 12, 9 April 2025.
In response to the lack of progress made with NDIS prior to the appointment of the Public Advocate as JTH's guardian NW said that it was she who had got the NDIS off the ground but then her partner had passed away. NW said that the support coordinator who was with them for a little while was very unprofessional and then another support coordinator had come in but JTH was very shut off and meeting new people was a 'big task[23]'. NW said 'we would make 10 steps forward and 10 steps back because our coordinators kept leaving and things kept changing. NW said things had [now] stabilised to a fault.[24] She said she supported JTH having SIL but that she wanted JTH to have shared care which she said meant that he could come home on the weekends or a couple of days a week.[25]
[23] ts 9, 9 April 2025.
[24] ts 9, 9 April 2025.
[25] ts 29, 9 April 2025.
NW said that she was in the process of looking for a new home for the family- one that was away from the landlords who had made it difficult for JTH to be a part of the family. When asked whether this related to the cease and desist notice served on JTH by the parents of his late stepfather (who owned the property in which the family was living) NW responded she was no longer living there and was staying with her father and working with emergency housing who were working hard to find a permanent four-bedroom home tailored to her daughter and JTH's needs both of whom had NDIS supports so that they could come back together.[26]
[26] ts 10, 9April 2025.
At the time of the hearing NW said she was in hospital and had been admitted there for about a week following sustaining a head injury.[27] She said she expected to be discharged in a few weeks. Her other children were being cared for.
[27] ts 29, 9 April 2025.
NW said that she just wanted her family back but would not be advocating a change in the guardianship (and JTH's return to the family) if this would put her other children in danger[28] or she did not trust that he was 'not the same boy as two or three years ago.'[29]
[28] ts 11, 9 April 2025.
[29] ts 12, 9 April 2025.
NW proposed that she be appointed guardian of JTH and said that there was no need for an administrator of JTH's estate as he could manage his own banking.
GW, said that JTH had come along way. He said he had seen JTH at rock bottom and he seen him lately 'nearly 60% up the hill'. GW said frustration gets in the way when JTH goes out with his family and stated 'He's got to go home [as] he doesn't want to go back [to the SIL) he wants to stay with his family.
GW said that due to the limitations placed on family contact that JTH felt like that 'we are not there'. NW prompted GW that JTH was grieving[30] to which GW then said
and he's grieving, and then his mum makes an effort to take him out on his birthday, and on the way back the wheels are falling off, because he is going back there, his Mum is going off, it's his birthday, he just wants to be trusted, and he wants to be put back into the world.
[30] ts 23, 9 April 2025.
In relation to JTH's birthday NW said that JTH should have been granted overnight leave as it was his 21st birthday. She said that JTH 'was angry but he went back [but] he always goes back. He doesn't want to, he wants to be with his family but he's trying to do the right things.[31]
[31] ts 24, 9 April 2025.
On the return to the SIL NW said that she said JTH had opened the door 'a bit abruptly[32]' NW said JTH was 'attacked' by the support worker who 'went at' JTH and his birthday cake went everywhere and JTH was yelling and screaming. NW said 'I was a mess and I had the two babies in the car.' NW said that JTH then had suicidal thoughts and ended up in an ambulance in the hospital.[33]
[32]ts 24, 9 April 2025.
[33] ts 24, 9 April 2025.
NW said that there had been three times when JTH had been knocking at the door at the SIL and there was nobody there. She said that on one occasion the support worker had left and had gone out to get dinner locking in the three residents with a deadbolt including a resident who was bedridden. She said the carer was gone for an hour. She said JTH had brought this to the support coordinator's attention but nothing has come of it. NW said she had been sending emails but was not sure if they'd been getting through.[34]
[34] ts 26, 9 April 2025.
The guardian said that she had been advised of this incident two days prior to the hearing but had not had any correspondence from NW nor had there been any reports of earlier incidents.[35] She said that on being advised she had immediately alerted the support coordinator who did an unannounced home visit to the SIL and that the incident had been reported to the safeguarding commission.[36] The behaviour support practitioner had been alerted and an investigation was been undertaken.
[35]ts 27, 9 April 2025.
[36] NDIS Quality and Safeguarding Commission.
When asked to clarify her statement that she had been emailing her concerns NW said 'I've had a lot of trouble with my reception, and yes there has been lots of stuff going on. My seven-year-old has been in and out of hospital over the last month her last hospital admission was a week that was two weeks ago with meningitis so there's been a lot going on'.[37]
[37] ts 28, 9 April 2025.
NW said she thought SIL was great for JTH[38] but wanted more contact with him.
Wishes of JTH
[38] ts 29, ts 30, 9 April 2025.
When asked in the hearing how things were going for him, JTH said 'good' and said he did not think he needed the orders.[39] He agreed things had been challenging for him over time. Later in the hearing JTH read out and later submitted his written statement:
I am now 21 years old I am ready to go home with shared NDIS supports. I would like to change support coordination and be housed in a different facility I would like to be in a share house with people my own age with similar interests. I no longer required guardianship or advocacy I can make logical and rational decisions on my own I have stabilised I would like my mother to regain guardianship and the rights to facilitate my well-being. I want my family in my life I need support from those who actually care I am able to manage my emotions I am no longer symptomatic I have stabilised on my medication and I can self administer I am able to de-escalate and identify triggers none of my needs or requests are being acknowledged I am lonely. I am ruminating. I feel trapped and unheard this accommodation and are unrealistic of conditions are causing me to regress and it is debilitating. The conditions of this house are neglectful. I need guardianship and advocacy when I was symptomatic. I don't need it now. I need my family and the guidance of my mum. I am capable of managing my own funds. I do not need a trustee. I would like the opportunity to do my own banking. I would like to navigate my own way without constant support staff. I would like my NDIS plan to be revised. To suit my current conditions. NDIS is helpful if managed correctly. Supported accommodation is helpful if I am housed in the right conditions. With more leeway and freedom to independently come and go on my own free will. With people my own age around to connect with. My guardian has met me once in three years. I feel she has she dismisses my concerns does not consider what it is best for me and my progression. I have been compliant and done everything that's been asked of me. I am not gaining anything as a result I am now in a place of disability. I am grieving and longing to go home. I'm no longer symptomatic I have stabilised I would like guardianship to be removed. In God's name we trust in God's name we are protected in God's name he would always deliver Amen
[39] ts 4, 9 April 2025.
In the hearing JTH was able to respond to some questions but his answers were limited. NW attempted to assist him in responding and prompting him during the hearing.
I am satisfied that NW likely assisted JTH in the preparation of his written statement as the language used aligns very closely with her own oral evidence and submissions. However, I accept that JTH likely does not think he needs the orders and objects to any restrictions placed on him as it is documented in the reports that JTH does not believe he has any disability. I also accept NW's statements that JTH may be lonely, missing his family and would like more contact with them. I also note that JTH was very disappointed and distressed as he said that his birthday was 'ruined'.[40] Despite what are described as the complexities in their relationship I am satisfied that JTH wants contact with his mother and siblings and also with his wider family including his paternal grandmother who is said to be an ongoing support to him and GW, his maternal grandfather who attended the hearing and wants to play a greater role in JTH's life especially with social outings. However, I am not satisfied having regard to the professional evidence regarding JTH's understanding of complex matters or his ability to draw meaning from text that he fully appreciates the full content of the written submission made. Having said that, it is clear that JTH does not believe he needs either guardian or administrator and does not want appointments made.
Guardian's submissions
[40] ts 24, 9 April 2025.
At the hearing the guardian submitted that the guardianship order was needed for JTH and that all the functions in the existing order were required. She said that since JTH's discharge from Graylands directly to the SIL things had been going well with the SIL accommodation after previous attempts for supported accommodation for JTH had failed. The guardian said that she had recently been made aware that JTH's was not happy at the SIL and that there was a possibility he could move to different accommodation if he was unhappy.[41] The guardian asserted that the reason JTH had done a lot better since discharge was the supported environment he was in[42] but would need a guardian to identify alternative accommodation.
[41] ts 15, 9 April 2025.
[42] ts 18, 9 April 2025.
In respect of treatment the guardian described the treatment decisions required for JTH during the term of the order as intensive[43] and there was a need for the continuation of this function due to the risk of relapse.[44]
[43] ts 15, 9 April 2025.
[44] ts 15, 9 April 2025.
In respect of the contact function the guardian said that relying on advice from the treating professionals, a slow and soft transition to reintroducing JTH to contact with his family was implemented.
She said that there was also the need for authority to deal with legal matters on behalf of JTH as he was subject to a Violence Restraining order, had been served with a cease and desist notice and was a defendant to a serious criminal charge of assault public officer which was going to trial in June 2025. The guardian said that JTH had demonstrated some behaviours of concern since discharge from hospital involving the police attending the SIL[45] but no charges had been laid. The restrictive practices and restraint functions should also continue as these orders were included in the order on an urgent review application while JTH was in hospital due to JTH's tendency to aggression and risk of discharging from hospital against medical advice.[46] Decisions in relation to services include engagement with services and dealing with JTH's expanded NDIS plan.
Is the presumption of capacity displaced
[45] ts 15, 9 April 2025.
[46] ts 16, 9 April 2025.
As can be seen from the principles set out in s 4 of the GA Act, the starting position, on an application for the appointment of a guardian or an administrator or on review of those orders, is that the person concerned is presumed to have capacity to make reasonable judgments about their person, their estate and to manage their own affairs.
The presumption of capacity in the GA Act, can only be displaced by clear and cogent evidence of incapacity of that person the subject of the proceeding and findings that the person is a person for whom a guardianship order can be made (pursuant to s 43(1) of GA Act) or for whom an administration order can be made (pursuant to s 64(1) of the GA Act).[47]
[47] GC and PC [2014] WASAT 10[36].
It is apparent from JTH's presentation in the hearing that he has made progress. Although JTH's verbal comments were limited he did attend and was able to participate and remain in the hearing. This contrasts with his presentation referred to in reports which refer to JTH presenting with selective mutism or refusing to come out of his room or presenting with suicidal ideation or being aggressive to those around him. I do note that Dr ST refers to JTH presentation in this respect as unpredictable.
Both NW and GW recognise and are encouraged by the progress JTH has made in the last months.
The guardian also indicated that JTH has engaged more with supports and had at the time of writing the report prepared for the February hearing JTH had entered a period of stability in the SIL. In the later report the distressing events associated with his birthday appeared to have unsettled some of the progress made and JTH engaged in aggressive behaviour and again placed himself at risk of harm. However, it is clear that overall since his discharge from Graylands JTH has made significant progress and he should be commended for this.
The progress made by JTH appears to have been achieved in the last months since his discharge directly from Graylands to the SIL. Since his admission to Graylands there has been a further diagnosis of schizophrenia, modification of JTH's medications and the marked increased in NDIS funding to respond to what the guardian describes as JTH's complex needs.
In the hearing NW did acknowledge that JTH had experienced longstanding behavioural issues from when he was about 13 years of age. She says that the longstanding issues confronting JTH have largely resolved and that JTH can manage himself and can manage his finances. Both NW and GW say that JTH now presents very differently than he did in mid 2024 prior to his admission to SCGH and Graylands.
NW's assertion the issues have resolved does not acknowledge JTH's own lack of recognition of his intellectual disability and his psychiatric conditions and his ongoing challenges or the relatively recent history of multiple hospitalisations following violence to others or self harming behaviours. Some of the incidents referred to in the material before me include assaults on NW herself and other family members. There is a report that JTH's younger brother sought a restraining order against him and his younger sister suffered a swollen lip following an incident of violence from JTH.
Aggressive behaviours demonstrated by JTH have reduced but I accept the evidence of the guardian that there have been incidents since his discharge where he has assaulted others or has placed himself at risk.
NW has acknowledged in the past during a hospital admission that she could not have JTH live with the family due to the risks to his younger siblings. He was later discharged to her care after months in hospital and an improvement in his presentation and following the bed being lost due to non-compliance with the leave arrangements from hospital.
Unfortunately JTH again presented to hospital within months of discharge following further violence perpetrated in the family and this was the reason for his admission to SCGH in July 2024. While in SCGH JTH assaulted as security guard who required medical attention in what was described as an unprovoked attack. This precipitated the admission to Graylands. When this was raised in the hearing although he said he did not condone it[48] GW appeared to minimise the seriousness of this incident saying that 'when [JTH] went to hospital, the administration tended to put security on him when he wants his mum, he's lost, he's miserable, he's in hospital, and some big men are telling him to stop. Anyone would react.'[49]
[48] ts 22, 9 April 2025.
[49] ts 21, 9 April 2025.
When the VRO brought by the step-grandparents was raised in the hearing GW said the step-grandmother had been intrusive as a landlord and invaded JTH's privacy. NW said that JTH had opposed the grant of the VRO. JTH is still experiencing the consequences of these incidents in the charges before the Court and the VRO.
NW states that JTH is not the same as he was two or three years ago and this may well be true but at the time of the hearing it had been less than a year since the admission to SCGH following violence by him in the family and only a few months since his assault on the security guard which caused to admission to Graylands. It is the case that JTH spent the latter part of 2024 from July to November in hospital either at SCGH or Graylands.
Although she says that JTH is aware of his triggers and should have anger management if he returns to the family home NW also appeared to minimise the history and said she was certain that there was no further danger[50] to the younger children if JTH returned to the family home.
[50] ts 11, 9 April 2025.
NW's views that JTH can manage himself are in contrast to all of the professional evidence which supports a finding that JTH requires significant support to manage his complex needs and supervision and monitoring of his behaviours of concern.
The increase in the NDIS funding reflects the complexity of his needs and the level of support he requires. NW's view that JTH can self administer his medication is also not consistent with the professional evidence or the history.
Where there is conflict in the evidence I prefer the consistent evidence of the health professionals and I am satisfied on the totality of the professional evidence to which I have referred that the presumption of capacity is displaced and JTH remains a person for whom a guardian and administrator may be appointed.
Guardianship
To determine the review of the guardianship order I consider and must be satisfied whether criteria in s43 of the GA Act still apply to JTH; that is, he is over 18[51] and 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 and control in the interest of his own health and safety or for the protection of others[52] and is in need of a guardian.[53]
[51] GA Act, s 43(1)(a).
[52] GA Act, s 43(1)(b).
[53] GA Act, s 43(1)(c).
JTH is now 21.
I am satisfied on the evidence of the health professionals and find that:
(a)JTH has very complex psychiatric conditions which have resulted in recurrent hospitalisations over several years. At times the deterioration in his mental health was associated with non compliance with prescribed medications with JTH presenting following violent assaultive behaviour toward his family members or self harming episodes or suicidal ideation or attempts.
(b)JTH has a mild intellectual disability which impacts on his understanding and problem solving capacity.
(c)JTH does not have insight into his mental health diagnosis believing that he does not have any mental health concerns and does not accept he has any disability, consequently he does not appreciate the level of supports he requires in the community. Prior to the appointment of the Public Advocate as guardian JTH had been unwilling to sign documents to engage NDIS supports. While living in the family home he was reported to be uncooperative with the NDIS support plan which had been initiated by NW. Although JTH has engaged with NDIS supports since living in SIL he is said to regard the supervision by support staff as restrictive and controlling. NW supports this referring to unrealistic expectations in the SIL.
(d)JTH has a history of unpredictable and at time aggressive or violent behaviour. He does not appear to understand the significance of the violence perpetrated by him and the consequences for others and for himself. For example, from what was said in the hearing I do not consider that he appreciated the significance of the violence restraining order made restraining his conduct or the potential consequence of a breach of that order. He is facing criminal charge of assault public officer due to what was said to be an unprovoked attack on a security guard in hospital. Since discharge from Graylands JTH has reportedly assaulted a support worker but was not charged.
I am satisfied that JTH remains a person for whom a guardian may be appointed. While I acknowledge that JTH has made significant progress I am also satisfied and I find that JTH lacks capacity in respect of personal decision-making and that he remains a person for whom all three paragraphs of s 43of the GA Act apply, that is he is incapable of looking after his own health and safety, unable to make reasonable judgments about his person and is in need of oversight care and control in the interests of his own health and safety or for the protection of others.
Is JTH in need of a guardianship order and who should be appointed as his guardian
I am satisfied and I find that JTH is in need of a guardian despite his expressed wishes that no order be made. I am not satisfied informal decision-making has met JTH's needs in the past or that less restrictive alternatives are now available to meet his current needs.
There are several areas of decision-making in personal spheres identified by the guardian which continue to be required for JTH including medical treatment, accommodation, services and the necessary authority to respond to his challenging behaviours through authority to make decisions about restrictive practices and to deal with legal matters which may arise through those behaviours.
Prior to the appointment of the Public Advocate as his guardian JTH was unable to establish and sustain his NDIS services and had been withdrawn from supported accommodation and was non compliant with medication which resulted in rehospitalisation.
In the hearing NW said that she wants to work with the support coordinator, supports JTH living in SIL and that the medication currently prescribed for JTH is appropriate. Despite these comments I accept the submission of the guardian that there is a risk that if the guardianship order was revoked or if NW was appointed JTH's guardian as she proposes, there would be a risk of disengagement with the level of services now achieved for JTH. I base this on the documented history of NW not supporting psychiatric diagnoses or treatment of JTH, most recently at Graylands, the inability to engage with or sustain NDIS services and withdrawal of JTH from previous supported accommodation and NW's lack of acceptance of JTH's need for the current level of supports as she does not accept his assessed level of disability. This can be gathered from NW's comments that JTH 'can navigate his own way', 'manage himself', 'self administer his medications', that the situation for JTH had 'stabilised to a fault' and that JTH was being kept at a 'disabled level'.
Because NW does not recognise the level of disability JTH experiences and appears to me to minimise the risks of his unpredictable and potentially violent behaviours, I am not satisfied that she would be able to act in such a way to maintain the range of supports and supervision he needs to ensure his health and safety and the safety of those around him.
Despite her obvious love for JTH as expressed in the hearing I am not satisfied that informal family support or the appointment of NW as guardian can meet JTH's needs.
I am satisfied and I find that JTH is in need of a guardian.
NW proposes herself for appointment but I am not satisfied that NW is suitable for appointment as JTH's guardian as I am not satisfied that she is able to perform the functions of a guardian in the spheres of personal decision-making as outlined above.
At present NW is reported by the guardian to have been banned from attending the SIL and was also banned from Graylands during the latter part of JTH's admission there in mid to late 2024. This, I am satisfied reflects the level of conflict between these services and NW. In the hearing NW referred to the past difficulty experienced with retaining support coordinators for JTH.
In addition to the above matters according to her own evidence and the reports to which I have referred, NW also has many challenges facing her including her own mental health which she says has been hindered by the separation from JTH. NW is reportedly a survivor of significant domestic violence and in addition has demands on her as the sole carer parent of five of JTH's younger siblings one of whom has additional needs and is an NDIS participant. In addition to this NW and her other children are experiencing housing instability and a search for new accommodation due to the breakdown in the relationship with the parents of her late former partner who were providing housing for the family following JTH's conduct there.
For these reasons although it is the expressed wish of JTH through the written statement and through his conduct to have NW involved in decision-making for him,[54] NW is JTH's mother[55] and they have a close though complex relationship, I am not satisfied that she is suitable for appointment as his guardian as I am not satisfied that she is able to perform the functions as JTH's guardian. These include the maintenance of his services and dealing effectively with the legal issues confronting him. I accept that these are necessary to meet his complex needs[56]and to reduce the risks identified in the Home and Living Assessment which include rehospitalisation, homelessness and incarceration. I am also not satisfied that NW would be compatible with the Public Trustee,[57] the appointed administrator of JTH's estate as she asserts that JTH can manage his own finances.
[54] Section 44(2)(c) of the GA Act requires consideration of the wishes of the represented person in determining suitability.
[55] Section 44(2)(a) of the GA Act requires consideration of the desirability of maintaining family relationships in determining suitability for appointment as guardian.
[56] Section 44(2)(d) of the GA Act requires consideration of whether the proposed guardian will be able to perform the functions in determining suitability for appointment as guardian.
[57] Section 44(2)(a) of the GA Act requires consideration of the compatibility of any proposed appointee with the administrator of the estate in determining suitability appointment as guardian.
In these circumstances I am satisfied that there is no one else suitable or willing to be appointed guardian of JTH and will reappoint the Public Advocate as his guardian with the functions identified.
Administration
In respect of the appointment of an administrator of his estate, s 64 of the GA Act requires that JTH be found to have an incapacity by reason of a mental disability to make reasonable judgments about any or all of his estate. This provision was considered in FY [2019] WASAT 118:
In that case it was recognised that the definition of mental disability is an inclusive one.[58] There is no requirement of a precise degree of mental disability, for the purposes of s 64 of the GA Act the only relevant measure in relation to a person with mental disability is whether that person is unable by reason of that disability of making reasonable judgments in respect of matters relating to all or any part of their estate.[59]
[58] FY [2019] WASAT 118 at [26]:
[59] FY [2019] WASAT 118 at [31]:
There appears to be changing views expressed by the health professionals over time as to the source of the impairments in cognition and behavioural or emotional regulation experienced by JTH being head injury, mild intellectual disability, ADHD, possible autism spectrum disorder,[60] Cluster B Personality Disorder, Complex PTSD or most recently schizophrenia. In the hearing NW expressed her frustration experienced over the years in the challenge to establish a diagnosis for JTH and to achieve the appropriate supports for him.[61]
[60] Neuropsychologist report, service provider report.
[61] ts 11, 9 April 2025.
I am satisfied that the conditions with which JTH is diagnosed are mental disabilities within the definition in the GA Act.[62] In determining whether s 64 of the GA Act still applies to JTH I must be satisfied that there is a causal connection between JTH's mental disability and an inability to make reasonable judgments about his estate.
[62] GA Act, s 3.
A person's ability to make reasonable judgments involves both subjective and objective tests: as the person's capacity is to be assessed in relation to their actual estate. At the same time the Tribunal must consider whether the person has the ability to engage in the particular mental process required to make that judgment (at [52]).
An estate is a reference to the 'aggregate of a person's property their assets and liabilities and in practice encompasses the entirety of their real and personal property and all of their financial affairs'.[63]
[63] SAL and JGL [2016] WASAT 63 at [22].
As held by the Full Tribunal in FY:[64]
An individual's ability to make reasonable judgments in respect of their estate requires that they have, amongst other things the ability to understand the need for, and sources of, income available to them, to understand the value of any income received relative to items of expenditure, to identify and calculate necessary expenditure for day‑to‑day living together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their; means to a identify and assess the financial implications of particular items of expenditure or of financial decisions (for example whether to enter into a contract such as those for the purchase of a phone household items a car or a house); to organise their affairs to be able to meet debts as they fall due; and to identify and implement problem-solving strategies for resolving any unexpected financial issues.
[64] FY [2019] WASAT 118 at [53].
JTH's only income is a Disability Support Pension (DSP) and that aspect of his estate is not complex. However, in contrast to NW's and JTH's own statements that he can do his own banking and manage his finances, the assessments and the opinions of the professionals do not support this. The most recent medical opinion and the more recent Functional Capacity Assessment indicate that JTH is incapable of making judgments about his finances. JTH reportedly experiences memory and problem solving impairments and impulsivity. The opinion of service provider although limited by the recent nature of contact at the time the report was prepared, indicates JTH needs support in identifying and purchasing his shopping needs but does say that with support, he may be able to make simple purchases. It is submitted and I accept that due to his mild intellectual disability JTH is more likely than not more vulnerable to financial exploitation.
Although I am satisfied that JTH at the present time needs assistance to manage his income and the payment of his essential costs including for his accommodation and to deal with his debt to St John Ambulance and is therefore in need of an administrator of that part of his estate, I am also satisfied that JTH's estate is more complex than simply the management of his DSP.
The administration order under review includes a direction to the Public Trustee to investigate whether JTH has any claim for personal injuries arising from a motor vehicle accident which occurred on 25 December 2021. JTH was a passenger in the car and as described by NW in the hearing[65] and as set out in several of the reports the accident was a very serious one. It appears that both JTH's father and stepfather suffered serious, potentially life-threatening injuries. Although JTH was not treated for any physical injuries at the time, NW believes he suffered frontal lobe damage and experienced severe trauma from witnessing the injuries suffered by his father and stepfather. In the hearing she described the accident as the 'straw that broke the camel's back[66]' in the context of JTH's deteriorating mental health presentation over some years. In these circumstances there is a clear need for JTH's entitlement to a potential claim for personal injuries be examined and if appropriate pursued by an administrator with the requisite legal authority to do so.
[65] ts 6, 9 April 2025.
[66] ts 11, 9 April 2025.
Given the opinion of the psychiatrist that JTH lacks capacity to deal with legal matters and the neuropsychologist's assessment that JTH's capacity to interpret meaning from long sentences (both verbal and written) is impaired, I am satisfied he could not deal with this complex matter and needs an administrator for this purpose.
Scope and duration of orders
In respect of the administration order I am satisfied that a plenary administration order is appropriate considering that JTH has an income to be managed, expenses including the meeting of supported accommodation costs and the payment of debt in addition to the potential personal injury claim.
As JTH reportedly wishes to have greater control over his finances and as he now has additional capacity building support in occupational therapy it is appropriate that there be an opportunity as he develops, for him to exercise greater control over his pension income. Therefore, I will include in the administration order that a trial of JTH managing his pension income be initiated by the administrator if this is supported by the guardian and the health professionals working with JTH.
As I am satisfied on the evidence of the health professionals to which I have referred that JTH has lifelong disabilities I am satisfied that he will need support in decision-making in the longer term. Further, the investigation and if appropriate the making of a claim for personal injuries on JTH's behalf may take many years to be finalised. For these reasons I will make the administration order for 5 years.
The submission of the Public Advocate is that the guardianship order be made for three years. I accept that it is appropriate that the orders be reviewed at that time.
For these reasons I make the following declarations and orders.
Orders
1.The Tribunal declares that the represented person[JTH] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)in need of an administrator of his estate;
(c)incapable of looking after his own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to his person;
(e)in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
(f)in need of a guardian.
Administration
2.The administration order dated 17 February 2023 is amended so that it now reads as set out in the order below.
3.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).
4.On the recommendation of the guardian and the represented person's support coordinator and if considered appropriate by the administrator, the administrator may undertake a trial whereby the represented person receives his Centrelink pension after the payment of his accommodation, essential services, debts and the Public Trustees' fees to enable him to develop greater independence in managing his finances. The trial may be suspended if, in the assessment of the administrator, it is not operating in the best interests of the represented person.
5.The administration order is to be reviewed before 7 July 2030.
Guardianship
6.The guardianship order dated 4 September 2024 is confirmed as set out in the order below.
7.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;
(e)to determine the services to which the represented person should have access; and
(f)as the guardian ad litem of the represented person, to defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person.
(g)to decide whether to give or withhold consent to the use of any restrictive practices proposed in any behaviour support plan developed from time to time for the represented person in compliance with the requirements of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018.
(h)to decide whether to give or withhold consent to the use of restraint to give effect to a decision of the guardian made pursuant to these orders and in the interest of the represented person's health and safety, on the following basis:
(i)where restraint is proposed, a medical plan must be developed setting out the purpose and circumstances under which restraint is to be used. The plan must be approved by a medical practitioner and, if it remains in place, be regularly reviewed; and
(ii)a decision to use restraints should be made only after all reasonably available less restrictive alternatives have been considered and found not to be successful.
8.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.
9.The guardianship order is to be reviewed before 7 July 2028.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
8 JULY 2025
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