KD - [2014] WASAT 87 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: KD [2014] WASAT 87

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 11 FEBRUARY 2014

DELIVERED : 11 FEBRUARY 2014

PUBLISHED : 8 JULY 2014

FILE NO/S: GAA 3866 of 2013
GAA 3868 of 2013

MATTER :KD
Represented Person

Catchwords:

Guardianship and administration Capacity Need for orders

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 40(1), s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 51(2), s 64(1)(a), s 64(1)(b), s 68, s 84, Div 3 Pt 5
Mental Health Act 1996 (WA)

Result:

Guardian and administrator appointed

Summary of Tribunal's decision:

Applications for guardianship and administration orders were made for a 69yearold woman with a longstanding diagnosis of a mental illness and a recent diagnosis of global cognitive impairment, likely the product of an emerging dementia.
The woman was opposed to the applications and held the belief that she could live independently in her home and manage her limited income.
The woman had spent a large part of 2013 as an involuntary patient in a mental health facility after unsuccessful attempts of living at home with support services.
The woman did not accept that she has a mental illness and lacks insight into her increasing care needs.
The Public Advocate was appointed the woman's guardian to make decisions about her future accommodation and support services. The woman's daughter was appointed her guardian to make her treatment decisions.
The daughter was appointed the woman's administrator to manage her financial affairs,; the daughter already having the role of trustee of a testamentary trust established in the will of the woman's late mother and of which the woman was a beneficiary.

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Background

Applications for guardianship and administration orders were made for KD (represented person) by a mental health service.
The represented person is a 69‑year‑old woman who has a long‑standing diagnosis of a mental illness; that being bipolar affective disorder.
The applications were made at a time when the represented person was subject to an involuntary order under the Mental Health Act 1996 (WA) (MH Act) and an inpatient in a mental health facility.
The main concern of the mental health team is whether the represented person should return to her public housing rental unit or whether she should be accommodated in a care facility.
The represented person is strongly of the view that she should be permitted to return to her unit and manage her personal and financial affairs.
The hearing was attended by the following:
•the represented person and her legal representative;
•the applicant social worker from the mental health team (applicant);
•Dr JB, consultant psychiatrist with the mental health team;
•ND, daughter of the represented person;
•VC, friend of the represented person; and
•DD, representative of the Public Advocate.

Decision of the Tribunal

At the hearing on 11 February 2014 I decided to appoint the Public Advocate as the represented person's limited guardian to make decisions about her accommodation and service provision, and I appointed the daughter, ND, as limited guardian to make the represented person's treatment decisions.
I decided to appoint ND as the represented person's plenary administrator.
The following are the reasons for those decisions.

Relevant legislation

The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
The GA Act requires the Tribunal to proceed through a number of steps in order to arrive at a decision about whether to appoint a guardian and an administrator for the represented person.
A finding must first be made about the represented person's capacity. The starting point is that she is presumed to be able to look after her own health and safety or to make reasonable judgments about her person, and is able to make reasonable judgments about her estate (s 4(2)(b), s 43(1)(b) and s 64(1)(a) of the GA Act).
The Tribunal must be further satisfied that there is a need for a guardian and an administrator to be appointed. Orders should not be made if the represented person's needs can be met by other means less restrictive of her freedom of decision and action (s 4(2)(c), s 43(1)(c) and s 64(1)(b) of the GA Act).
If guardianship and administration orders are made the Tribunal must decide what should be the scope of those orders. If the represented person's personal needs can be met by the making of a limited guardianship order then a plenary order should not be made (s 4(2)(d) of the GA Act). There is no such statutory restriction for administration orders, although any limited order made should reflect the needs of the person (s 4(2)(e) of the GA Act).
If a guardianship order is made then the Tribunal must decide who should be appointed. Section 44 of the GA Act provides guidance to the Tribunal in the answer to that question. The Tribunal must be satisfied that the proposed guardian will act in the represented person's best interests; will not be in a position where the proposed guardian's interests conflict or may conflict with her interests; and that the person otherwise be suitable to act as guardian. Suitability takes into account the desirability of preserving existing family relationships; the compatibility of the proposed guardian with the represented person and the person's administrator; the represented person's wishes; and whether the proposed guardian will be able to perform the role that he or she is given. Much the same requirements apply for the appointment of an administrator, although it is not expressly provided for the Tribunal to consider a conflict of interest that a proposed appointee may have with the interests of a represented person (s 68 of the GA Act).
The Public Advocate is able to be appointed the represented person's guardian only if it is determined by the Tribunal that there is no one else suitable or willing to undertake that role. The Public Trustee consents to his appointment as administrator should the Tribunal similarly find that no other person is suitable or willing to be appointed to that role.
When going through all the steps just mentioned, the Tribunal must as far as possible seek to ascertain the represented person's views and wishes but ultimately must make a decision in what the Tribunal determines to be in her best interests (s 4(2)(a) and s 4(2)(f) of the GA Act).

The applications

The principal concern of the applicant is whether the represented person is able to live independently in her home.
When living in her home, the represented person was assessed as eligible for 'low care' support, which translated into four to six hours of services on average each week. These services comprised cleaning, medication prompts, shopping and gardening.
The consultant psychiatrist, Dr JB, states that prior to the several discharges in 2013, the mental health service had also provided occupational therapy and community nurse visits to the represented person's home:
… to assist in establishing some reasonable opportunity and prospect of succeeding at home … (T:20; 11.02.14)
The applicant states that this proved unsuccessful and that the represented person was not coping at home even with the support services in place. The state of the represented person's home was reported to be consistently very poor. The applicant has a further concern that the represented person has not been managing her limited income and that she has relied on obtaining funds from her late mother's deceased estate.
The applicant states that it is unlikely that the represented person would qualify for 'high care' support in her home as this is restricted to people who have difficulties with ambulation, showering and continence.

Medical and allied health reports

A number of medical and allied health reports that considered the represented person's capacity are before the Tribunal. They are as follows:
•16 July 2013, PG, clinical psychologist;
•12 November 2013 Dr JB, consultant psychiatrist;
•18 November 2013, MA, senior occupational therapist;
•30 January 2014, SC, clinical psychologist; and
•30 January 2014, Dr AJ, consultant psychiatrist.
The earliest of these reports, that of the clinical psychologist PG, refers to assessments undertaken on 24 June, 11 July and 12 July 2013. The report concludes:
The results of the current assessment are consistent with recent psychiatric and family opinion that [the represented person] has impaired cognitive functioning, with prominent features of impaired short term memory, and executive dysfunction. This is likely to represent a very significant decline from her premorbid level, estimated to be in the average range. [The represented person] denies significant difficulty in keeping her home, managing her finances, or in many aspects of self‑care and self‑protection. Judgment and insight are believed to be seriously impaired.
The apparent decline in [the represented person's] global cognitive functioning, memory and executive functioning may be caused by a dementing process, possibly associated with her long history of Bipolar Disorder, but this finding is not conclusive.
The results suggest that [the represented person] would be unlikely to satisfactorily manage to continue living at home (which is her expressed wish) without continued in home help with taking her medications. She would also need an increased level of help with domestic care, and with financial management in order for this to be a satisfactory arrangement. It is considered likely that in her current environment, without considerable additional assistance, she would continue to place herself at high risk, both at home and in the community. These risks would be to her physical health and safety, and to her financial interests.
In his report, Dr JB, consultant psychiatrist, notes that he has known the represented person for six years. His diagnosis of the represented person's condition is that of bipolar disorder and dementia. Relevantly, Dr JB states that intensive efforts to support the represented person at home have failed on multiple occasions but that she does not accept this to be the case. Dr JB states that the represented person's daughter, ND, has needed to settle numerous debts arising from the represented person's spending and gambling. He states that in his view the represented person has not absorbed or accepted the information or counselling offered to her in respect to her accommodation and financial issues.
The report of the senior occupational therapist, MA, refers to assessments undertaken during her present admission to a mental health facility. It is noted that the represented person has had four admissions to a mental health facility since January 2013 as a consequence of a rapid deterioration of her mental state and functioning in the community in the context of poor medication compliance. MA opines:
[The represented person's] long history of bi‑polar affective disorder and more recent cognitive impairment has impacted on her short‑term memory and executive functioning, evident in decreased initiative, forward planning, organising, [and] attention to task and problem solving. She has poor insight into her mental health issues and how her behaviours affect her physical and cognitive wellbeing and her relationships.
MA states that during the admission, the represented person visited several residential aged care facilities and expressed some positive views about two of the facilities, subject to a suitable home being found for her pets.
MA states that the represented person has benefited from the structured and supportive environment of the mental health facility, where she has received regular monitoring and supervision with medication and self-care, appropriate nutrition and diabetes management.
The most recent clinical psychologist assessment undertaken by SC in January 2014 assesses the represented person as having made some improvement in cognitive testing following receipt of treatment in the structured environment of the mental health facility. There are, however, persisting difficulties with incidental recall, 'mental control', and aspects of orientation and executive functioning, the latter in which the represented person struggles with cognitive flexibility/switching and inhibition, and where there are also qualitative indicators of problems with deductive thinking.
The consultant psychiatrist, Dr AJ, undertook an assessment of the represented person's capacity upon request for a second opinion by Dr JB. He reviewed the represented person on 5 November 2013 and 30 January 2014 and also reviewed her medical records.
From the represented person's medical records, Dr AJ notes that she has had the following admissions to a mental health facility in 2013:
•10 January to 7 February;
•16 April to 1 August; and
•5 August, ongoing at the date of his report.
Dr AJ states that the represented person displays a lack of insight into her mental illness and functional decline during the current admission. She does not recognise that she has a long‑standing mental illness, and holds the view that her admissions to the mental health facility have not been warranted. She minimises the need for support services.
Dr AJ notes that the represented person's mood symptoms have shown considerable improvement as a result of enforced treatment in the mental health facility.
Dr AJ had the benefit of occupational therapy reports and the recent psychological assessment of SC (see above). His assessment is:
The findings of my clinical evaluation today were consistent with the observation of these reports. I noticed improvement in [the represented person's] mood symptoms and there were no prominent psychotic symptoms. In my opinion the moderate improvement in the symptoms and small improvements in functioning are to a large extent attributable to consistent pharmacological and psychosocial treatments provided to [the represented person] in a supportive and structured environment during this lengthy admission. However, unfortunately there were little, if any, changes in her cognitive appraisal abilities. She continues to maintain that she never had a severe mental illness and denies [the] need for any active treatment. She does not acknowledge any functional problems or the need for regular support. This along with the finding of the low scores on executive functions and AMPS process score would suggest [the] need for assertive treatment and considerable supports.
Dr AJ opines that it is difficult to establish the cause of the represented person's cognitive decline reported from 2012 but observes that people with severe mental illness usually have significant cognitive deficits the degree of which varies considerably between individuals.
Dr AJ concludes that the represented person requires ongoing treatment for her chronic mental illness and functional deficits and will be at high risk of relapse should that treatment not be given. He further concludes that in his view the represented person requires regular and considerable support in a highly structured environment.

The oral evidence of Dr JB, consultant psychiatrist

Dr JB detailed his interactions with the represented person over a number of years, noting the decline in her mental state and the increasing frequency and length of admissions to a mental health facility. He states he noticed that in recent admissions it has taken a long time for the represented person's mental state to normalise. He says that he became concerned about the possibility of a decline in the represented person's cognitive function that could not be explained by acute relapses of her bipolar disorder, and questioned whether this was a factor in the represented person's increasing difficulty to have extended functional periods living in her home.
Dr JB states that prior to her discharge on 1 August 2013, he had been satisfied that the represented person's mental state was sufficiently stable, after the extended stay in hospital and preparation for discharge, for her to be given a chance to manage at home. The hospital social worker had advised him that an optimum care package for support in the home was in place.
Dr JB states that soon after her discharge on 1 August 2013, he received feedback from the nurse and occupational therapist visiting the represented person that she was not coping and that the state of her home was poor. According to Dr JB this is consistent with the assessment of the clinical psychologist, PG, (see above) that it would be difficult if not impossible to discharge the represented person to her home without a repetition of her functional problems.
Dr JB states that during the current admission the represented person has experienced a degree of clinical improvement to her mental state because of regular treatment and structured activities; however, she continues to deny the presence of a mental illness and refuses to discuss the problems that have arisen during previous discharges.
Dr JB states that despite clinical supervision in the mental health facility, the represented person has managed to covertly reject medication which has led to an exacerbation of her bipolar symptoms. During the current admission the represented person purchased a pedigree dog (one of her two older dogs had died), notwithstanding she was not in a position to look after the dog or afford the significant costs involved. Dr JB notes that previous reports have documented the presence of dog faeces in all areas of the represented person's unit ‑ including her bath, kitchen and carpets ‑ and multiple opened cans of dog food. Dr JB concludes:
… there are specific cognitive impairments that relate to the bipolar illness and then there are global cognitive impairments that affect many aspects of cognitive function. The particular ones that [Dr AJ] confirms with the help of the recent cognitive testing, proclaimed frontal lobe functions, although not exclusively. The frontal lobe, or pre‑frontal areas, in many ways regulate other cognitive functions. They're responsible for the person's ability to be circumspect, to assimilate information, to reflect on it, to exercise values, principles and preferences in weighing that and making decisions ‑ judgments, when they help regulate mood and they are responsible ‑ they're critically important in a person's ability to function well socially. And the recent testing as ‑ and [Dr AJ] mentions this point to problems with respect to frontal lobe functions. They may not be immediately obvious when interacting with a person, especially if they have previously been of superior intelligence, as has [the represented person], and have been highly socially skilled in various areas. [Dr AJ], towards the end of his report, indicates that, in his opinion, the cognitive impairments are functional consequences that mean that [the represented person] ‑ he also confirms my opinion that the structured environment in the ward has been critically important in [the represented person's] partial recovery and he confirms later in his report, his opinion that such a structured environment, not the home environment, will be critical to her future health and treatment. And I've actually tested that … it's pretty clear in his report that I actually confirm that was his intention by asking him … And, sorry, I might add, [Dr AJ's] area of expertise in psychiatry, he is very experienced in many areas, is in rehabilitation, in functional recovery for people with mental illness. So when he makes a statement like that I think it carries some weight … There have been improvement in some cognitive areas. Those areas relate to ‑ the cognitive functions concerned relate ‑ the specific ones, particularly affected by bipolar disorder, but there appears to be more global ‑ and some of those that we covered since the middle of last year to some degree ‑ not completely. But others, and I've been talking about them, the recovery has been less marked if at all … I would expect ‑ notwithstanding the period of non‑adherence to medication, I would have expected more improvement if the cognitive impairments were due to recent relapses of the bipolar … In other words, sadly, it looks like there won't be full recovery or great recovery[.]
(T:45 and 46; 11.02.14)

In respect of the represented person's capacity to make her own treatment decisions, Dr JB states that the represented person does not believe she has a mental illness or that she suffers from diabetes. Whilst he could envisage some treatment decisions able to be made by the represented person, he has 'grave doubts' that she would be able to consent to complex treatments which require an ability to assimilate a great deal of information, retain that information, identify options and consequences, and be able to communicate her decision clearly.
When asked how the represented person's cognitive deficits might impact on her ability to manage her finances, Dr JB opines:
I think the ‑ that tribunal might be in evidence ‑ in possession of more evidence than I have about past management of finances and the difficulties that have arisen. But management of finances require the ability to assimilate information about the state of finances, about income, about expenditure, to exercise careful decisions with (indistinct) limited resources and because any impairment of judgment can have severe adverse impacts on managing limited finances. [The represented person] does love the casino. She has made several visits there during the course of her stay in the adult ward.
(T:47 and 48; 11.02.14)

The evidence of the represented person

The represented person was legally represented.
The represented person states:
I don't think I've ever had anybody prompt me with my finances. I've always lived on a pension, first of all as a single parent of a child, and I've always managed my own ‑ I've never been in debt. I don't smoke or drink, you know. And I got myself a lovely Homeswest home in 1974 and I'm still living there. I got a house in 1990 and I've got two dogs, and there's nobody giving me money, except for one thing: my dad (sic) died and he left me some money. And my beautiful daughter in the corner there took charge of it.
(T:21; 11.02.14)
The represented person does not accept the assessment of Dr JB. She states:
Listen to me for a second, I've written five books in the last 10 years and that takes a brain and so why are these people knocking me down and saying I'm ‑ I'm weeing on the floor and I'm opening dog things and all this sort of thing when they're straight out lies? ... Three days later after discharge [August 2013] I had three community people come in threatening to bring me back to ‑ I wasn't even allowed to settle in. Now, what is that sort of behaviour?
(T:52 and 53; 11.02.14)
As regards her diabetes, the represented person states that she did not know she suffered from that condition until:
… I went to the old people's ward and they started pricking my fingers. (T:67; 11.02.14)

The evidence of ND, daughter of the represented person

ND made a number of written submissions to the Tribunal and also gave oral evidence.
ND states that the represented person was formally diagnosed with bipolar disorder when she was 49 years of age. ND says that her recollection is that the represented person was hospitalised once or twice a year from 1994 to 2007 because of, in the main, manic episodes of her illness. When in such manic states, the represented person was least likely to be compliant with her medication. She was also prone to making rash financial decisions such as making offers for property that she could not afford, general spending sprees and long spells of gambling at the casino.
ND states that the represented person was not hospitalised between July 2009 and January 2013 although she continued to have periods of elevated mood. However, in 2013, the represented person was hospitalised at a mental health facility for almost the whole of the year, even though she was discharged to her home a number of times.
ND states that during the represented person's admission in January 2013, she visited the represented person's home for the first time in several months and was shocked at the deterioration of the living conditions despite having had a cleaner attend one and a half hours a fortnight. ND filed a series of photographs with the Tribunal taken by her at the time and her descriptions are consistent with that photographic evidence. For example:
… piles of dirty week-old dishes around the sink. Used pet food cans with remnants in them were left lying around … frying pan and a plate of prawn shells lying around for days … half bowls of jelly and milk desserts that Mum has cooked were left on the kitchen table and in the sink to turn rancid … half‑bowl of cat food on the kitchen table had turned to a bowl of maggots … the crisper at the bottom [of the fridge] was rancid with the juice of tomatoes and dried out mouldy carrots … 9 tubs of margarine each of which had mould in them. There was a carton of eggs with an expiry date 18 months earlier … the state of the fridge confirmed for me that Mum had not cleaned out her fridge for more than a year. The pantry cupboards were all full of old, expired and spilled food stocks … one of the bedrooms in which Mum has her multiple laptops had dangerous electrical wiring tangled under the table. Both bedrooms and the small hallway of her Homeswest home were full of dirty clothes piled high … mum's lounge room had an open half eaten jar of jam on the sofa and rotting mangoes in a plastic bag under the sofa[.]
(Submission of 26 November 2013)
ND states that it took her five hours of cleaning to prepare the represented person's home for further work by a professional cleaner. The cost of the professional cleaner was $925.00.
ND states that on 2 April 2013 the represented person purchased a puppy for $999 leaving her with $17 in her bank account knowing that she had a kennel bill of $1,500 to pay for her other dog.
When the represented person was readmitted to hospital on April 16 2013 (having been discharged on 7 February 2013), ND states that she found the home in much the same state as in January 2013. ND filed photographs with the Tribunal from that time, which shows the represented person's home to be in a poor condition.
ND states that the represented person was again discharged from the mental health facility, this time on 1 August 2013. Within two days she was concerned that the represented person's mood was elevated but in the opinion of a community nurse who visited the represented person, readmission to hospital was not warranted. On the morning of 5 August 2013, ND states that she was contacted by a carer who said that the represented person had been found on the veranda of her home surrounded by broken glass, having tried to gain entry after locking herself out of her home after an evening at the casino. The represented person was subsequently readmitted to the mental health facility. ND states that she arranged for the represented person's two dogs to be returned to a kennel where they have remained.
ND states that she has always assisted the represented person with her financial and legal affairs. She had arranged for the represented person to forward her utility bills to her to ensure they were paid. ND says that when the represented person was in a manic phase of her illness, she would at times withdraw the bulk of her available bank funds at the casino, leaving little or no funds for payment of her direct debits and food. Bank statements from 2009 and 2012, which ND states shows such withdrawals, are before the Tribunal.
ND states that by her estimation, the represented person had, in a six month period in 2013, lost her bank ATM card three times.
ND states that she is the trustee of a testamentary trust established in the will of the represented person's late mother. A copy of the will is before the Tribunal. ND states that she has not made any distribution of income to any beneficiary but that she has, over the years, made substantial distributions of capital to cover the represented person's living expenses including: payments to ensure a continued supply of gas and electricity to the represented person's home; a reliable food supply; household appliances; medical care; dog courier and kennel costs (about $12,000 over the past year); and payments for contracts entered into by the represented person.

The evidence of the Public Advocate

DD, the Public Advocate's representative, interviewed the represented person in the mental health facility in November 2013. DD reports that the represented person did not acknowledge that she had a mental illness; rather, that she had suffered a nervous breakdown and had had setbacks since then. The represented person said that she accepted services in her home and had done so for many years. She expressed concern that her daughter wanted her to live in an aged care facility which she did not want. The represented person said she had lived in her home since 1974, had maintained it, and could not understand why people were saying she was unable to do so. She said that she liked to go to the casino and did so monthly or sometimes more frequently. She said that she had misplaced her keys once (August 2013), that she had stayed up all night and was assisted by a neighbour in the morning. If an administrator was to be appointed she would choose her daughter, ND.
DD says he spoke with a person from the agency providing support to the represented person in her home and was advised that on the day the represented person was discharged (1 August 2013), her mood seemed elevated and she appeared to be unwell. Medication prompts were made for the next three days and the represented person was found on the fifth day of her discharge locked out of her home after an evening at the casino. She was reported to be in a confused state and was readmitted to the mental health unit.

Other evidence

VC, who describes himself as a friend of the represented person, questions whether the represented person had been given a key by ND to enable her to get into her home on 5 August 2013 (ND states that the represented person had been provided with a key but it appears she left to go to the casino without the bag in which the key had been put).
VC states:
What I see, just as an observer and as a friend, is she's capable of [living independently]. I go and visit her every week in [the mental health facility] and I don't see much change from week to week. The consistency in her ‑ the way she talks to me is pretty good. There's times where she's been perfectly clear in everything she talks about. (T:79; 11.02.14)

The submissions

The submission of the represented person is that orders are not needed; that she should be permitted to return to her home to live independently; and that she is capable of doing so. If an administrator is to be appointed, she would choose her friend, VC.
The submission of the applicant is that the represented person requires the appointment of a guardian and an administrator because the evidence demonstrates that she is no longer capable of maintaining her health and safety in the community, even with the support services available to her.
The daughter, ND, submits that the represented person is in need of orders and that, except when very well, the represented person does not accept that she needs any assistance.
ND submits that the represented person should now live in an aged care facility. She states in a written submission from 4 February 2014:
I am very concerned that if Mum is not living in a facility where healthy meals are prepared for her, she will revert to those [poor] eating habits and will quickly become physically very ill from her diabetes … I am also dreadfully concerned that if Mum is allowed to return to her home, it will only be a matter of time before Mum is robbed, beaten or raped by someone who picks her up out in the community, such as the person who preyed on her at the ATM last year when it was apparent that she could not gain access to any cash.
As regards the represented person's finances, ND submits that she would be concerned that the represented person would rely too much upon the trust funds and not manage her pension income appropriately.
ND submits that she should be appointed the represented person's guardian and administrator. She says that she has been committed to the represented person's welfare for 20 years and is in the best position to undertake those roles. In the case of the represented person's financial affairs, ND cites her management of the trust funds for the past eight years. ND submits that if the Public Trustee were appointed as the represented person's administrator then fees would be charged which would consume the balance of her pension once living costs had been met.
RE, a brother of the represented person, states in a written submission that he supports the appointment of ND as the represented person's guardian and administrator.
DD, the Public Advocate's representative, supports the making of guardianship and administration orders. However, the appointment of ND as guardian is not supported on the basis that ND has pre‑emptively formed the view that the represented person should be accommodated in an aged care facility rather than return to live in her home, which is her wish. DD is also of the view that appointing ND as guardian would be detrimental to her relationship with the represented person.
DD supports the appointment of ND as the administrator, having formed a view that she acts in 'good faith' towards the represented person.

The decision of the Tribunal

The medical and allied health evidence which refers to the represented person's cognition and level of functioning is consistent and uncontested. It is only the represented person and her friend, VC, who challenge that evidence, and they do so only by assertion.
I accept, on the uncontested evidence, that the represented person has a long‑standing mental illness (bipolar affective disorder) that is subject to regular periods of relapse and that, in addition, she has recently developed global cognitive impairments, likely the product of an emerging dementia. The mental illness can respond to a strict medication regime; unfortunately, the dementia, according to Dr JB, cannot, and will therefore have a permanent impact on the represented person's functioning.
I accept that the symptoms of the dementia fall largely in the areas of short‑term memory difficulties and deficits in the represented person's executive functioning, the latter affecting her ability to plan and organise her life, and impairing her judgment and insight. This is consistent with the evidence of the represented person's chaotic lifestyle and her inability to maintain herself during the periods of her discharges in 2013. It is also consistent with the represented person's ongoing denial that she does have functional deficits and that she needs significant support in her daily living.
I accept that the only improvements that have occurred in the represented person's mood and functioning are the result of her living a large part of 2013 in a structured and supportive hospital setting.
Despite her wish to return to her home, I find that the represented person is unable, because of her global impairments, to assess in her own best interests the accommodation and support that she needs which is conducive to the maintenance of her health and safety.
I further find that the represented person is unable to make reasonable judgments about her medical needs. She does not believe she has a mental illness and on her own evidence appears to have little insight or understanding of her diabetes. The treatment of the represented person's mental illness can occur principally through the operation of the MH Act as is the case currently; however, the management of the diabetes requires ongoing treatment and review, which seems beyond her abilities and requires a guardian to ensure that treatment takes place. I find that it is more likely than not that the represented person will react to her future medical needs in the same way as she currently does ‑ largely by non‑compliance with treatment.
I am satisfied that the represented person is incapable of looking after her own health and safety, is in need of oversight and care in the interests of her own health and safety, and is unable to make reasonable judgments in respect of matters relating to her person (s 43(1)(b) of the GA Act).
For the reasons given above, I am satisfied that the represented person is in need of a guardian in the areas of her accommodation, support services and treatment.
I accept the submission of the Public Advocate that ND should not be appointed the represented person's guardian to decide her accommodation because she has already formed the view that the represented person should not return to her home. The Public Advocate should be given that role (s 44(5) of the GA Act). Although it may ultimately be the decision of the guardian not to have the represented person return home, a comprehensive assessment should be undertaken to explore the merits of the represented person's wish that she live at home rather than in a supported aged care facility (s 51(2)(b) to s 51(2)(e) of the GA Act). It is for this reason the Public Advocate is also given the function to consent to services so as to enable that assessment to take place, and to consider what level of support might be needed and what might be practically available and possible.
I am satisfied that it is in the represented person's best interests that ND be appointed her guardian to make treatment decisions. Although the relationship between ND and the represented person is strained from time to time, ND has developed an intimate knowledge of the represented person's medical conditions over a long period of time and is readily available to respond to her medical needs when they arise. ND is to be commended for maintaining the relationship with the represented person during very difficult times, and I am satisfied she will act in the represented person's best interests.
In respect to the represented person's financial affairs, I am satisfied on the evidence that any financial equilibrium that the represented person has been able to sustain in recent years is largely a consequence of ND making funds available from the testamentary trust to make good the debts the represented person has incurred and to meet her daily needs. The large amounts paid to kennels, to house the represented person's dogs, is a striking example.
Although it appears that the represented person has had an expectation since the establishment of the trust that funds be made regularly accessible, I am satisfied that given her current global cognitive deficits, she is unable to reasonably plan and organise her limited income in such a way as to ensure her basic needs are met. Her financial decisions are often impulsive.
For these reasons I am satisfied the represented person is in need of an administrator. That need is further demonstrated, in my view, by the real possibility of an accommodation decision being made by the guardian that is inconsistent with the represented person's wishes and the guardian not being able to give effect to that decision because payment will not be made if the represented person remains in control of her income.
In her evidence the represented person nominated both ND and VC. The latter is not appropriate to be appointed because, on his own evidence, he too lacks insight into the represented person's functional deficits and needs.
As with the matter of guardianship, I accept that the relationship between ND and the represented person can become strained; however, despite this, ND continues to advocate for and support the represented person.
I am therefore satisfied that it is in the represented person's current best interests that ND be appointed her administrator. ND has clearly assisted the represented person over a number of years, and has needed to keep informed of the state of the represented person's financial affairs when she has made decisions in her capacity as trustee of the testamentary trust established by the will of the late represented person's mother.

I am confident that as administrator, ND will be able to work with the Public Advocate as the represented person's guardian when, in particular, accommodation decisions need to be made.
The administration order should be plenary in nature to enable ND to deal with any financial matter that may arise.
I will set the review of the guardianship and administration orders in five years, the maximum period allowable under s 84 of the GA Act, because on the evidence the represented person's cognitive impairments are permanent.

Orders

On the application for the appointment of an administrator for the represented person, the Tribunal declares that the represented person:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all her estate; and
(b)is in need of an administrator of her estate,

and the Tribunal orders that:
1.[ND] is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.This order is to be reviewed by 11 February 2019.

On the application for the appointment of a guardian for the represented person, the Tribunal declares that the represented person:
(a)is incapable of looking after her own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to her person;
(c)is in need of oversight, care or control in the interests of her own health and safety; and
(d)is in need of a guardian,

and the Tribunal orders that:
1.[ND] is appointed limited guardian of the represented person with the following function:
(a)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person.

2.The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live; and
(c)To determine the services to which the represented person should have access.

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.This order is to be reviewed by 11 February 2019.

I certify that this and the preceding [90] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER