KS and DC
[2014] WASAT 90
•18 JULY 2014
KS and DC [2014] WASAT 90
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 90 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:118/2014 | 20 FEBRUARY 2014 AND 31 MARCH 2014 | |
| Coram: | MS L EDDY (MEMBER) | 18/07/14 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application successful | ||
| B | |||
| PDF Version |
| Parties: | KS DC |
Catchwords: | Guardianship Need for guardian Involuntary patient under Mental Health Act 1996 (WA) Unknown date of discharge Turns on own facts |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43, s 43(1), s 86, s 110ZD Mental Health Act 1996(WA) |
Case References: | LGW [2004] WAGB 4 |
Summary | The application for the appointment of a guardian of a person involuntarily detained under the Mental Health Act 1996 (WA) was successful. The proposed represented person opposed the appointment of a guardian, arguing that there was no need for a guardian at that point in time. The medical evidence was to the effect that it was likely the proposed represented person would remain in hospital for up to one to two years. While it was accepted that there was no need for a guardian with decisionmaking powers at this point in time, the Tribunal appointed a guardian with the limited functions of representing/advocating for, or on behalf of, the represented person in relation to discharge and, in relation to maintaining the potential option of his being able to be discharged to his own unit. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KS and DC [2014] WASAT 90 MEMBER : MS L EDDY (MEMBER) HEARD : 20 FEBRUARY 2014 AND 31 MARCH 2014 DELIVERED : 18 JULY 2014 FILE NO/S : GAA 118 of 2014 BETWEEN : KS
- Applicant
AND
DC
Represented Person
Catchwords:
Guardianship Need for guardian Involuntary patient under Mental Health Act 1996 (WA) Unknown date of discharge Turns on own facts
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43, s 43(1), s 86, s 110ZD
Mental Health Act 1996(WA)
Result:
Application successful
Summary of Tribunal's decision:
The application for the appointment of a guardian of a person involuntarily detained under the Mental Health Act 1996 (WA) was successful. The proposed represented person opposed the appointment of a guardian, arguing that there was no need for a guardian at that point in time. The medical evidence was to the effect that it was likely the proposed represented person would remain in hospital for up to one to two years. While it was accepted that there was no need for a guardian with decisionmaking powers at this point in time, the Tribunal appointed a guardian with the limited functions of representing/advocating for, or on behalf of, the represented person in relation to discharge and, in relation to maintaining the potential option of his being able to be discharged to his own unit.
Category: B
Representation:
Counsel:
Applicant : In person
Represented Person : Ms D Perkins
Solicitors:
Applicant : N/A
Represented Person : Mental Health Law Centre
Case(s) referred to in decision(s):
LGW [2004] WAGB 4
Introduction
1 In January 2014, KS (the applicant), a social worker at Graylands Hospital, lodged, on behalf of the relevant treating team, an application under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) for a guardian to be appointed for DC, who was a patient at the hospital. The applicant stated that DC had suffered a head injury in 1989 and had a chronic psychiatric illness, and as a result he 'lacks the capacity to make informed, reasonable and rational decisions'.
2 DC is currently subject to an administration order and there has been a history of applications and reviews of both guardianship and administration orders in relation to DC since 1993. In summary, that history is as follows:
1) An application for a guardianship order in 1993 resulted in a plenary guardianship order being made, with a statutory review date in September 1994.
2) On review of the guardianship order in 1994, the order was revoked.
3) An application for an administration order made in July 2005 resulted in the Public Trustee being appointed plenary administrator of DC's estate. That order was subject to statutory review before August 2010.
4) An application under s 86 of the GA Act for review of the administration order by DC referred to at point 3, above was dismissed.
5) DC made a further application for review of the administration order in January 2007. This application resulted in the administration order being confirmed, although statutory review of the order was brought forward to February 2009.
6) An application for a guardianship order made in March 2007 was dismissed.
7) DC lodged an appeal of the Tribunal's decision to confirm the administration order under s 17A of the GA Act in March 2007. That application resulted in the administration order being confirmed, with statutory review of the order required before April 2012.
8) DC made another application for review of the administration order in July 2007. This application was dismissed.
9) DC made a further application for review of the administration order in April 2012. This resulted in the administration order being confirmed with statutory review required before April 2017.
3 The current application for a guardianship order was heard on 20 February 2014 and on 31 March 2014. Following the conclusion of the March hearing, orders were made allowing any interested party to lodge with the Tribunal any further written submission or information by 10 April 2014. DC was given leave to lodge any responsive submission or information by 17 April 2014, and the Tribunal's decision on the application was reserved. These are the reasons for decision of the guardianship application.
Issues
4 The power of the Tribunal to make a guardianship order is found in s 43(1) of the GA Act. That section provides:
Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 -
(a) has attained the age of 18 years;
(b) is -
(i) incapable of looking after his own health and safety;
(ii) unable to make reasonable judgments in respect of matters relating to his person; or
(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c) is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint -
(d) a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e) persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
5 DC is in his forties and, as such, there is no issue that he is a person who has attained the age of 18 years. Therefore the issues to be determined by the Tribunal in this application are:
1) whether DC is a person for whom a guardianship order can be made (capacity); and
2) whether there is a need for a guardianship order.
6 If these questions are answered in the affirmative, the following further issues arise:
1) whether any order should be plenary or limited, what functions should be conferred, and what directions or conditions, if any, should be made;
2) who should be appointed as guardian; and
3) the period before which any order made must be reviewed by the Tribunal.
7 When considering the issue of whether any order should be plenary or limited, regard must be had to the statutory requirement in s 4(5) of the GA Act that essentially provides that a plenary guardian must not be appointed if the appointment of a limited guardian would be sufficient. In addition, any order appointing a limited guardian must be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action (s 4(6) of the GA Act).
8 In determining the application as a whole, including each of the above issues, the Tribunal is required to have DC's best interests as its primary concern. In addition, it is necessary, where possible, to ascertain the views and wishes of DC in relation to the matters raised by this application (s 4(7) of the GA Act).
Capacity
9 The starting point for determining whether a guardianship order should be made is the fundamental, but rebuttable, presumption of capacity found in s 4(3) of the GA Act. That subsection relevantly provides:
Every person shall be presumed to be capable of -
(a) looking after his own health and safety;
(b) making reasonable judgments in respect of matters relating to his person;
…
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
10 The clarity and cogency of the evidence required to reach satisfaction, and the nature of satisfaction necessary to find that the presumption is rebutted, is affected by the seriousness of the potential consequences of such a finding in accordance with what is commonly referred to as the 'Briginshaw' principle.
11 In this case, evidence in documentary form and by way of oral evidence was received by the Tribunal, making it necessary to determine whether the presumption of capacity is rebutted in relation to DC.
12 The documentary evidence received by the Tribunal in relation to the application is as follows.
13 First, there is a standard Tribunal document known as a 'Doctors Guide' that was filled out by Dr AF. The document is signed and dated 3 January 2014. Dr AF is a medical officer working at Graylands Hospital who has known DC for approximately 10 years. Dr AF describes himself as DC's regular medical attendant. According to Dr AF, DC has an impairment of his cognitive ability or mental function because of an organic mood disorder and organic personality disorder, first diagnosed in 1990. He states that the organic mood disorder is secondary to a head injury and is 'characterised by progressively [sic] worsening of cognitive functioning [and] behavioural difficulties'. In response to the standard questions on the 'Doctors Guide' – 'can the person make reasonable decisions NOW in relation to' 'Personal Health Care' and 'Living Situation', Dr AF ticked the box marked 'No, incapable' in relation to each question. No further comments or explanation is provided.
14 Second, there is a letter with a heading 'Second opinion by Professor [HS]' in relation to DC, which is signed by Professor HS and is undated. In that letter it is stated that the professor was asked to provide a second opinion requested by DC. It is stated that the professor examined DC on 3 December 2012. The letter contains an overview of DC's relevant history and the professor's findings on a mental state examination of DC. Relevant parts of the report of the mental state examination of DC state:
He talked spontaneously in a monotonic but mildly pressured and disorganized manner, flitting from topic to topic. At times he would perseverate on some topic/theme, at other times he would make contradictory statements. When directed, however, he was able to focus on simple topics in a rational manner but was unable to sustain concentration for long. … He complained of 'poor memory' but clinical testing did not support it. … He insisted that he is not suffering from a mental illness and should not be forced to take drugs that in his opinion have 'never done anything for him'. His comments about his behavioural misdemeanours, psychiatric history, problems and future prospects revealed a concrete simplicity, severely impaired judgement and a total lack of insight.
15 Professor HS concludes by providing some comments under the heading 'opinion'. Relevantly the professor stated:
[DC's] history and presentation is consistent with personality change and neuropsychiatric abnormalities (mood and frontal lobe abnormalities) resulting from his traumatic brain injury. Possibly alcohol and illicit substance abuse has aggravated accident-related impairment … Given his current mental state, persisting 'organic mood disorder', poor impulse control and impaired higher executive functioning, I do not think [DC] is capable of living independently and his capacity to do so appears to have progressively declined.
16 Third, there is a 'Social Work report' by the applicant that is undated. The applicant notes that DC owns a unit in the metropolitan area. She states that DC lived in that unit for some four to five years prior to his recent admission to Graylands Hospital. For most of that time DC had another person staying with him in the unit, and that person used to do the shopping and cooking for DC. Shortly before DC's admission to Graylands Hospital, DC's relationship with his flatmate deteriorated, allegedly because the flatmate had become aggressive and exploitative, and DC's family had the flatmate removed from the unit. The applicant states that DC is unable to shop, clean, cook or do his own washing. She states that DC's family have had to have the unit cleaned, repaired and refurbished three times over the past five years, at considerable expense, because of the extremely poor condition that the unit is kept in. She noted that upon DC's recent admission to hospital, it was reported that the unit was an extremely dirty state. In the applicant's opinion, DC does not have the capacity to live independently.
17 The applicant also states that DC admits to using illegal drugs and, in her opinion, this ongoing problem has had significant effects on his level of functioning, mental state and behaviour.
18 Fourth, there are a number of discharge summaries from Graylands Hospital in relation to periods of time between 1991 and 2009 that DC spent in that hospital.
19 Fifth, there is a psychological assessment report of DC, dated 23 July 1990, that contains results from several forms of neuropsychological testing of DC following his brain injury. The summary of that assessment states that:
[DC] shows significant deficits in cognitive functioning, with IQ being 20 to 25 points below premorbid levels and memory showing an equivalent deficit. He has islands of very good functioning, particularly in visual pattern-matching tasks and will perform best if given feedback about his accuracy and if given reassurance. He is able to learn new tasks and to retain that learning but his learning performance is slow and he is subject to giving up when he encounters problems
20 Sixth, there is a submission from TL, DC's brother-in-law, dated 24 February 2014. TL expresses the opinion that DC's family has noticed that DC is declining in his 'thinking and capacity to rationalise his situation; to make reasonable decisions; and maintain personal standards of care and hygiene. He just seems to not be responding to the drugs like he has in the past'. TL also states:
[A] key concern regarding [DC's] behaviour is his short attention span and how his decision making is influenced by the last two minutes of time. His overriding desire for something he wants now (tunnel vision effect) and the influence of his friends and acquaintances is a major concern.
21 TL confirms that DC does not cook or clean, and in TL's opinion, DC needs a high level of support in order to be able to function if living on his own in the community.
22 Seventh, there is a letter from DC's administrator dated 17 February 2014. In this letter the administrator outlines DC's financial situation and the current state of DC's unit. In relation to the guardianship application, the administrator states:
I believe that [DC] would greatly benefit in having a guardian appointed as he continually allows visitors to use his unit as a drop in centre and does not take into consideration the consequences in allowing anyone living [sic] in his property.
23 Eighth, there is an 'Occupational Therapy Functional Assessment' of DC dated 17 March 2014. The author states that DC's dental and personal hygiene is poor and that he needs to be prompted to clean. In relation to cooking, the author states that DC has a poor level of hygiene in the kitchen and he shows a lack of attention to detail in remembering to turn off appliances. In summary, it is stated that:
[DC] has poor social skills and an impoverished level of functioning. His capacity to change his behaviour is diminished somewhat by his head injury however he is able to function at a more appropriate level however he chooses not to as he gains attention/notoriety from his non-compliance conformity. His behaviour in the broader community has been sub-standard for many years now. The numerous issues around his accommodation … clearly illustrate his inability to cope. Suffice to say [DC's] level of independent functioning is poor and he requires a degree of community support and supervision if he is to achieve a better quality of life.
24 Ninth, there is a 'Doctors Guide' filled in by Dr D dated 20 March 2014. Dr D states that DC has an impairment of his cognitive ability of mental function because of schizophrenia (he later advised in an email to the investigator from the Office of the Public Advocate that DC's psychiatric diagnosis was in fact organic personality disorder). Dr D states that 'his cognitive impairment (memory, concentration, judgment, executive function) will deteriorate in future'. In response to the standard questions as to DC's ability to make reasonable decisions in relation to his personal health care and his living situation, Dr D ticked the 'No, incapable' responses. He has commented that '[DC is] unlikely to cope with independent living due to poor judgement and decision making capacity', '[DC] has poor interpersonal skills and poses risk of aggravation should his demands not be fulfilled' and '[DC] doesn't accept his illness, tends to stop his medication if not supervised and has tendency to abscond from ground access'.
25 Tenth, there is a letter from the applicant dated 21 March 2014, outlining the treating team's current views concerning DC's discharge from Graylands Hospital.
26 Eleventh, there is an email from Dr D, dated 10 April 2014, directed to an investigator from the Office of the Public Advocate (investigator). Dr D states:
[DC] suffers from organic personality mood disorder since motor vehicle accident long time ago. His condition is very difficult to treat due to irreversible brain damage. However, more recently he has shown some response to his current medication regime even though his executive functions, insight and judgment are grossly impaired. Ever since his admission, he seems to be unaware of the consequences of his decision with regards to money management, self care, behaviour towards other people and poses risk of discontinuing his medications.
27 DC, through his representative, did not seek to cross-examine the authors of, or otherwise challenge any of, the documentary evidence with respect to his capacity.
28 At the commencement of the hearing, DC's representative advised that she was instructed not to make any 'submissions on s 43' (T:7; 14.02.14) and by that, I understood her to mean submissions about whether the statutory test for appointing a guardian had been met in relation to DC. At the later hearing in March 2014, DC's representative stated that, at that point in time DC had instructed that, while he was of the view that he did have capacity to make reasonable judgments, he was mainly opposed to a guardianship order on the ground that there was currently no need for a guardian (T:4; 31.03.14).
29 The applicant's oral evidence at the hearing was to the effect that DC's mental state and ability had been gradually deteriorating over time, possibly contributed to by DC's use of alcohol and/or illicit drugs (T:11-14; 14.02.14).
30 The investigator advised the Tribunal at the hearing that there had been a mental health nurse who had been involved with DC as his case manager for a considerable period of time and who had supported DC while in the community. However that mental health nurse had ceased to be involved in DC's care and this may also have contributed to DC's deterioration in his ability to function independently in the community.
31 The investigator spoke to care providers involved with DC at Graylands Hospital and conveyed to the Tribunal that it was their view that DC could not currently care for himself independently. They told the investigator that DC was forgetful and that his standard of hygiene, even within the hospital was 'very poor' (T:26; 14.02.14). The evidence of DC's sisters and brother-in-law was to this same effect.
32 The evidence of DC's siblings, supported by submissions made on behalf of DC, was that DC's family members had been very helpful to him and had assisted him in decision-making in the past as needed. TL explained that, following DC's head injury, DC's two sisters and TL, over time, became DC's main family support. They had, in the past, worked with DC's administrator to try and manage and maintain DC's unit, including undertaking major cleaning and refurbishing three times since it was purchased, when that had become necessary. Their evidence was to the effect that part of the reason DC managed to live reasonably independently in the community was because they were able to provide him with this informal support.
33 Despite DC's views, all of the other evidence about DC's capacity is consistent and was not challenged. I am satisfied, based on all of that evidence, that the presumption of capacity is rebutted in DC's case at this point in time. I am satisfied that, because of his acquired brain injury and consequential psychiatric condition, DC is currently not able to make reasonable decisions about personal matters of any complexity. I am also satisfied that DC is currently not able to look after his own health and safety. In the context of his current circumstances, he is also in need of oversight care and control in the interests of his own health and safety.
34 It is necessary, therefore, to consider whether DC is in need of a guardian at this point in time.
Need for an order
35 It is not in contest that DC had been living independently in the community, and making his own personal decisions with the assistance of informal support mechanisms for some four to five years prior to his most recent admission to Graylands Hospital. However, since June 2013, DC has been detained as an involuntary patient under the Mental Health Act 1996 (WA) (MH Act).
36 Dr D, in his letter of 10 April 2014, reports that the treatment plan is for DC to be transferred to the rehabilitation stream at Graylands Hospital. He stated that it was not at that time known how long it would take for a vacancy in the relevant ward to become available. According to Dr D, it is envisaged that DC will eventually be discharged from the rehabilitation stream, but that may take up to one year or more. Dr D stated that, once discharged, it is likely DC will be subject to an involuntary community treatment order with respect to treatment for his psychiatric condition.
37 The applicant stated at the hearing on 20 February 2014, that the reason the application for a guardian had been made at this point in time, despite the fact that there was no imminent prospect of DC being ready for discharge from Graylands Hospital, was because 'at some state we will need to discuss the longer term plans for [DC]' (T:33; 14.02.14).
38 DC made it clear at the hearing, and his representative confirmed in closing submissions, that he does not want to have a guardian appointed. DC considers that he is not in need of a guardian. DC told the Tribunal, at the commencement of the hearing, that he doesn't like people telling him what to do, but he is happy for people to talk to him about matters and to help him out (T:5; 14.02.14). DC's main concern, as clarified at the March 2014 hearing, was that he did not want to lose his freedom and was concerned that a guardian may decide he should, once he is discharged from hospital, permanently reside in some supported accommodation option with the consequence that his unit might be sold without him having any say in that (T:4-5; 31.03.14).
39 The submissions made on behalf of DC were effectively that there was currently no need for a guardian for DC, given that he is currently held on an involuntary basis at Graylands Hospital and there are no currently ascertainable plans for discharge. It was submitted that DC doesn't have any health issues other than his mental health issues, but even if any issue did arise, there is no reason why his sisters could not make any treatment decisions that DC was not able to make for him pursuant to s 110ZD of the GA Act. Further, in DC's current circumstances there are no decisions to be made about DC's accommodation or the services he may require once he is discharged from Graylands Hospital.
40 DC's family expressed the concern that without a guardian appointed, decisions about DC's discharge might not be made in DC's best interests. TL stated that, in his opinion, decisions to release DC from Graylands Hospital back into the community, have been made in the past without consultation with DC's family. When this has occurred in the past, TL says 'almost invariably, he has quickly gone downhill; putting him on a spiral downwards'.
41 The Tribunal asked about whether there was a need for a guardian to be appointed to advocate for DC, rather than to have any specific decision-making function, given the plans of DC's treating team appear to involve his long-term continued residence at Graylands Hospital. DC's representative submitted that this would not be necessary, because she had been advised that discharge of a patient from the rehabilitation stream at the hospital is 'largely based on when the patient feels comfortable going back into the community' (T:7; 31.03.14). This was confirmed by Ms N, a nurse from Graylands Hospital (T:8; 31.03.14). However, it was also confirmed that a person could be still held as an involuntary patient under the MH Act when in the rehabilitation stream.
42 I accept the submission made on behalf of DC that there is no need for a guardian at this point in time, at least with regard to any substantive decision-making function. However, given DC's circumstance as an involuntary patient, the evidence that the treating team considers there is a real prospect of his remaining hospitalised for a year or more, and DC's family's concerns that discharge planning has, in the past, not always been in DC's best interests, I am satisfied that there is a need for a guardian to advocate for and on behalf of DC in relation to matters concerning his discharge from Graylands Hospital. It is well accepted that the concept of guardianship, as specified in s 43(1) of the GA Act, includes not only decision-making but also '… a range of other functions, duties and powers that attach whenever one has the equivalent of parental responsibility for the long-term and day-to-day care, welfare and development of a represented person. This includes acting to assert and protect the rights and interests of the [represented person] against third parties and making representations on behalf of a person': LGW [2004] WAGB 4, at [35].
43 I also consider that there is a need for a guardian to advocate for and behalf of DC in relation to his unit. DC has a plenary administrator, who has authority to dispose of DC's unit if he no longer requires it for his accommodation. It is potentially possible that the administrator could determine it is appropriate to dispose of that unit if it is informed that there is no realistic option of DC returning there to live. While DC doesn't currently have the capacity to make a reasonable judgment about his accommodation, and in particular, whether he will be able to return to live in his unit, this is an important issue to him. It is also the case that his treating team are planning for him to enter a lengthy period of rehabilitation. As such, it cannot now be ascertained whether or not DC will regain the capacity to make accommodation decisions for himself. It also cannot now be ascertained whether DC will, when ready for discharge from hospital, be capable of living independently in his unit or will need some more supported accommodation arrangement. Therefore, it is important that a guardian have the authority to advocate on DC's behalf that his unit should not be permanently disposed at all, or at least before it is known what DC's circumstances will be when he is able to be discharged from hospital.
Other issues
44 It would be apparent from the above that while it has been determined that DC is in need of a guardian, it is not necessary that the guardian be given plenary powers. The functions of the guardian will be limited to making representations and/or advocating for and on behalf of DC in relation to:
1) DC's discharge from hospital and matters relevant to his rehabilitation and planning for his discharge.
2) Ensuring that the option of DC being able to return to live in his own unit upon his discharge from hospital is maintained until such time as it is necessary to make a final decision about DC's accommodation following his discharge from hospital.
45 I turn next to the question of who should be appointed as DC's guardian. DC's wish, as expressed at the hearing, and confirmed in the submissions filed on his behalf by his representative, is for his friend JY to be appointed as his guardian, if one has to be appointed. DC expressed the view to the investigator that he adamantly did not want any member of his family, including TL, appointed as his guardian. At the hearing, DC's representative indicated that while DC was consistent in expressing his view that he wanted JY appointed as his guardian, he did fluctuate somewhat as to whether he would be comfortable with TL as a guardian (T:30; 14.02.14).
46 After the hearing, the Tribunal received a submission from DC's daughter TC, dated 21 April 2014. In that submission, TC stated that she strongly believes that her uncle TL should be DC's guardian. She stated that she is strongly opposed to TC's friend JY being appointed as DC's guardian.
47 The Tribunal also received a submission from DA, TL's sister, dated 11 April 2014. In that submission DA expressed the view that a family member, preferably TL, should be appointed as DC's guardian. DA stated that she opposed the appointment of JY. If a family member cannot be appointed, DA would prefer the Public Advocate over anyone else.
48 At the first hearing, JY stated that if she were appointed guardian she would make decisions in DC's best interests. However, based on the statements she made during that hearing and the second hearing, I wasn't satisfied that she would be prepared to make any decision that DC would be unhappy with. While for the most part that would be an entirely appropriate approach, if circumstances developed such that what DC wanted something that was contrary to his best interests, I am concerned that JY would not be prepared to make a decision that was in DC's best interests. It is also the case that JY has known DC for a relatively limited period of time, approximately three years. I find that she does not have the background knowledge and history of relationship with DC that his family members have. Given the submissions referred to above, I am satisfied that an appointment of JY as guardian also poses a real risk of having a negative impact on DC's family relationships. For all of those reasons, at this point in time, I am not satisfied that JY is a suitable person to be DC's guardian.
49 The only other person known to DC who put themselves forward as willing to act as guardian for DC was TC. While DC said he was opposed to TL being appointed as his guardian, as indicated above, DC's representative advised the Tribunal that DC was not consistent in his views about this. The family dynamic, as explained in TL's submission and in oral evidence, and the relationship between TL and DC is such, that I am satisfied appointment of TL as limited guardian is not likely to have a negative impact on DC's ongoing relationship with TL and his other family members. I am satisfied that TL is a suitable person to act as DC's guardian and will act in DC's best interests.
50 Finally, it is necessary to consider when the guardianship order should be reviewed. The maximum time allowable under the GA Act is five years. In this case, while it is anticipated that DC's capacity may well change over time, the Tribunal is not able, on the information available at this point in time, to ascertain exactly when it would be appropriate to hold a review of the order. The information provided by DC's treating team indicates that his rehabilitation may take one to two years. In the circumstances it seems appropriate to require review of the guardianship order in two years' time. If it appears to DC, or any of the interested parties, that circumstances have changed or that for any reason it would be appropriate to review the order prior to that time, then an application can be made to Tribunal seeking review of the guardianship order at an earlier date.
Orders
The Tribunal declares that DC:
(a) is incapable of looking after his own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to his person;
(c) is in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
(d) is in need of a guardian,
and the Tribunal orders that:
1. TL is appointed limited guardian of the represented person with the following functions:
(a) making representations and/or advocating for and on behalf of DC in relation to:
(i) DC's discharge from hospital and matters relevant to his rehabilitation and planning for his discharge; and
(ii) Ensuring that the option of DC being able to return to live in his own unit upon his discharge from hospital is maintained until such time as it is necessary to make a final decision about DC's accommodation following his discharge from hospital.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L EDDY, MEMBER
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