MW - [2022] WASAT 107

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   MW [2022] WASAT 107
MEMBER:   MS F CHILD, MEMBER
HEARD:   2 SEPTEMBER 2022 AND 6 OCTOBER 2022
DELIVERED          :   1 NOVEMBER 2022
PUBLISHED           :   1 DECEMBER 2022
FILE NO/S:   GAA 3237 of 2022

MW
Represented Person
Bentley Health Service
Applicant

Catchwords:

Guardianship and administration - Application for the appointment of guardian and administrator - Whether proposed represented person is unable to look after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person or in need of oversight, care or control in the interests of her own health and safety - Whether proposed represented person is unable by reason of a mental disability to make reasonable judgments about her estate - Diagnosis of psychiatric condition of chronic schizophrenia or chronic delusional disorder and short-term memory impairment - Involuntary inpatient under Mental Health Act 2014 (WA) - Twenty year history of transience or chronic homelessness - Wishes of represented person to remain transient - Incapacity of represented person to make judgments about risk - Whether in need of guardian and administrator - Whether family members suitable for appointment as guardian - No alternative to appointment of Public Advocate as limited guardian and Public Trustee as plenary administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2), s 40, s 41(1)(iii), s 43(1)(b), s 43(1)(c), s 51(1), s 64(1)(a), s 64(1)(b), s 70(1), s 110H, s110ZD, s 110ZD(3)(b)
Mental Health Act 2014 (WA)
Aged Care Act 1997 (Cth)

Result:

Public Trustee appointed plenary administrator
Public Advocate appointed limited guardian

Category: B

Representation:

Counsel:

Represented Person	:	Mr Versteegen
Applicant	:	N/A

Solicitors:

Represented Person	:	Mental Health Law Centre
Applicant	:	N/A

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

FY [2019] WASAT 118
GC and PC [2014] WASAT 10
MH [2022] WASAT 74
SAL and JGL [2016] WASAT 63

REASONS FOR DECISION OF THE TRIBUNAL:

(The application was heard on 2 September 2022 and 6 October 2022. The decision was delivered on 1 November 2022. The following comprises the reasons delivered orally, subject only to minor editing to anonymise parties, improve clarity of expression and setting out).

Introduction

The Bentley Health Service made an application on 27 August 2022 seeking orders for the appointment of a guardian and administrator of the estate of MW under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act).
The application was first heard on 2 September 2022 with a final hearing on 6 October 2022.
The first hearing in September was adjourned at the request of MW's solicitor Mr Versteegen of the Mental Health Law Centre (MHLC) because MW experiences significant hearing impairment and could not hear what was being said and therefore could not participate in the hearing without hearing aids or hearing augmentation, neither of which was available at the time.
The adjournment also allowed the Tribunal to give notice of the proceeding to family members of MW. It is a requirement of the GA Act that notice be given to the nearest relative of a person[1] the subject of an application for the appointment of a guardian and administrator unless exceptional circumstances exist which were not present in this case.
[1]GA Act, s 41(1)(iii).
Family members were identified by both the applicant social worker and the Public Advocate's investigator (investigator) and notice of the hearing was subsequently given to them. MW's sister and nephew attended the final hearing in person. One of MW's daughters who was contacted indicated to the applicant social worker that she did not want to be involved.
At the final hearing on 6 October 2022, MW and her solicitor Mr Versteegen, members of the treating team, the social worker Ms E, the occupational therapist Ms S, the consultant psychiatrist Dr K and her registrar Dr T, all appeared by video. As noted, the sister of MW, Ms H, and her nephew Mr S, attended in person at the Tribunal. The investigator attended by telephone. Mr Versteegen advised that MW was wearing hearing aids for the hearing.
Having heard from MW and to submissions made on her behalf by her solicitor and from all the parties present the matter was reserved for decision.
These are the reasons for the decisions made to appoint a guardian and administrator of the estate of MW.

Background

MW is an 87-year-old woman who was brought into hospital by ambulance on 13 July 2022 following an assault on her when she was homeless and sleeping outside a café in a suburb of Perth. She has been in hospital since that admission.
MW is a former state athlete and retired teacher and played a significant role in the establishment of a community organisation which family members say continues to the present. She has three children from whom it is said she is estranged. She is described in the material before me as having been chronically homeless for over 20 years.
At the time of the hearings before the Tribunal MW was an involuntary patient under the Mental Health Act 2014 (WA) (MHA). At the final hearing her involuntary status had been confirmed for a further month.

Evidence

The material filed with the Tribunal includes the application, the report of the applicant social worker, Ms E, dated 26 August 2022, a service provider report, a cognitive assessment and occupational therapy report from the occupational therapist, Ms S, and a medical report from Dr T dated 18 August 2022.
Oral evidence was also given by the social worker, the occupational therapist, Dr K, the consultant psychiatrist, MW, her sister Ms H and nephew Mr S. The Tribunal also heard submissions from the investigator and the solicitor from the MHLC, Mr Versteegen on behalf of MW.
The social worker's report dated 25 August 2022 reports that MW was assaulted and struck on the head multiple times by an unknown person causing a head laceration when MW was sleeping outside a café in a suburb of Perth. In the social worker's report a daughter of MW is noted as an informal contact, but it is later said that all three of MW's children have been estranged from her for many years, likely due to carer burnout.
MW is reported to be non-complaint with nursing interventions requiring six nurses to carry out personal care activities. The social worker states that MW would benefit from an environment that is secure given her risk of absconding. The social worker reports MW requires staff support on a daily basis to ensure her medical care needs are met. It is said she needs 24/7 residential care.
The occupational therapist's report dated 25 August 2022 states that MW was physically assaulted and brought in by ambulance and presented with delusions in an acute psychotic state. MW is reported to have difficulty following and understanding advice due to her delusional preoccupation, poor memory and insight.
The occupational therapist reports she was 'unable to complete full cognitive assessment despite five attempts' due to MW's paranoia and mental state. It is reported MW 'Declines services and support' and has 'paranoia towards government' which 'triggers aggression response' both 'physical and verbal'. MW is reported to have 'Impaired insight into her current difficulties and subsequent needs'. The occupational therapist opines that MW 'Requires secure environment with higher staffing levels to facilitate safety'. The report notes that MW is extremely isolated and she has been unable to identify any friends and does not have any contact with her children. The occupational therapist considers that if MW was discharged to her pre-admission location/situation she would be at significant risk due to her vulnerability to exploitation and her cognitive deficits.
The standard medical report dated 18 August 2022 completed by Dr T a psychiatric registrar, reports that MW has a mental disability being:
1)Chronic Untreated Schizophrenia with previous provisional diagnosis of Chronic Delusional Disorder noted in 2019 during a 1 day Midland SJOG admission and admissions in RPH in 2021 without formal diagnosis due to itinerant lifestyle, and lack of engagement with community mental health services. Chronic Paranoid/Persecutory Delusions
2) Likely cognitive Impairment – short term meory (sic) deficit noted without formal assessment.
In Dr T's report, MW's condition is described as fluctuating. Dr T gives the opinion that MW is incapable in all spheres of decision-making including simple financial matters, more complex financial matters, legal matters and in personal decision-making including medical treatment, accommodation and services.
Dr T states that MW suffers from a delusional disorder and exhibits highly paranoid and persecutory delusions and this paranoia causes her to live an itinerant lifestyle. Although noting that because of noncompliance MW has not had formal cognitive assessment, Dr T reports she demonstrated some decline in cognition, particularly impaired short-term memory. Dr T reports that MW was unable to remember recent interviews or discussions with the treating team. His report notes that MW is currently homeless, receiving a pension and carries her belongings including $1,000 in cash on her person, which Dr T considers places her at high risk of harm through exploitation or violence on the streets.
In respect of personal decision-making, Dr T gives the opinion that MW remains completely without insight with regards to her condition, does not believe she is ill and remains somewhat unrealistic in terms of being able to support her itinerant lifestyle at her current age, citing her previous experience with travelling. MW is reported to have a significant hearing impairment but to have thrown her hearing aides away.
MW is reported to have been compliant with the current antipsychotic medication dose but Dr T reports she does not feel she requires medication and when challenged with regards to her symptoms or need for assessment she frequently becomes agitated or verbally abusive.
Dr T notes that MW is unable to participate meaningfully in selection of safe accommodation and remains highly paranoid and unwilling to seek permanent accommodation due to her long-standing untreated delusional disorder and cognitive deficit. Dr T gives the opinion that MW is incapable of giving an Enduring Power of Attorney, an Enduring Power of Guardianship or an Advance Health Directive.
In her oral evidence in the final hearing Dr K, the consultant psychiatrist said that mental state examinations of MW had been conducted on a weekly basis since the previous hearing which confirmed MW's diagnosis of delusional disorder. Dr K stated that the conclusion reached in terms of decision-making capacity had remained unchanged (from Dr T's report) that MW lacked capacity for decisions around accommodation and finances or lacked an appreciation of the need for ongoing treatment and was unable to appreciate the vulnerabilities that she might be exposed to living as she had prior to her admission to hospital, (that is essentially on the streets). Dr K confirmed that MW had been continued as an involuntary patient but said that if a guardian was appointed MW could be made a voluntary patient.
Dr K reported that MW was being treated for her mental illness and was compliant with her antipsychotic medication olanzapine and her adherence was perhaps 80% which fluctuated. At times when she was intensely paranoid she could refuse treatment. Dr K went on to say that over the previous two months there had been no need for the use of intramuscular injections, so this demonstrated that with 80% adherence there had been a shift in terms of MW's level of hostility, but not with the delusions she experienced.
As referred to above and in her evidence the occupational therapist indicated that she had attempted on multiple occasions to complete a Montréal Cognitive Assessment of MW. However, due to MW's distress and her difficulties with frustration tolerance with increasing aggression, the occupational therapist had been unable to complete the full standardised assessment but was still able to report on various components from that test. The occupational therapist reported MW had also been assessed through more informal methods such as observation of how MW's mental health and paranoia were impacting on her daytoday functioning and decision-making on the ward. MW was reported to have difficulty with more complex cognitive function for planning and problem-solving. The occupational therapist said MW was able to recall matters that are meaningful for her but had difficulty with carrying over and recalling even this more meaningful information.
In the occupational therapist's assessment notes the delusional content experienced by MW is said to be 'relating primarily to Chinese people "taking over" and "terracotta people"'. The occupational therapist reports that MW was reported to be:
… talkative throughout the review, tangential and distractible in conversation. Impaired insight into her delusional belief. Some insight into her difficulty with memory when provided with memory task.
The conclusion and impression recorded is that MW:
… presented as distractible and tangential throughout the review, requiring significant redirection, breakdown of instruction and repetition. Observed difficulty with regulation of emotion- quick escalation, with quicker than previous de-escalation. Impaired encoding of information, significantly impacting her recall ability. Some difficulty with executive function tasks and sustaining attention throughout assessment.'
In response to questions from Mr Versteegen, Dr K confirmed that she had been involved with MW's care since her admission to hospital and that this was MW's first presentation at Bentley Health Service and first assessments conducted by that hospital. There had been previous presentations but not an admission to Royal Perth Hospital in the last few years.
In her evidence Dr K confirmed the occupational therapist's report of the assessment of memory and cognitive functioning was consistent with her own observation of MW's memory, particularly her short-term memory, which she described as quite impaired. Dr K said that MW's ability to retain information fluctuated depending on her level of paranoia. Examples were given that MW could not recall information that has been relayed to her about the reviews undertaken or the medication she is given in hospital or the amount of cash held on her behalf.
Dr K also reported that MW's ability to care for herself with activities of daily living and personal care fluctuated depending on her level of paranoia. Dr K did not consider that MW's lack of capacity was influenced by poor memory but more likely linked to MW's underlying paranoia. Dr K said this made it difficult to be certain whether there was a coexisting cognitive impairment but that MW's short-term memory impairment is obvious.
When questioned by MW's solicitor, Dr K responded:
… while we're saying she lacks capacity in terms of making decisions around the likes of accommodation, there's not an ability to appreciate the pros and cons, weigh up the risks and benefits, of the decisions that she's making. Yes, she's entitled to make decisions that may not be in her best interests, but the harms that goes along with those decisions outweighs, I suppose, that freewill.
So when she was attacked predating this admission, there was a lack of recognition that the way in which she has been living for several years, or existing patterns of living, may have contributed to the vulnerability. And taking that into account in terms of going for the decision-making around suitable accommodations that is going to keep her safe in the community, that was grossly lacking.
So that falls in a domain of complex decisionmaking around protecting herself and the risks that she might face in the community[.][2]
[2] ts 12, 6 October 2022.
MW's problem-solving was also a described by Dr K as 'grossly lacking' in that MW was unable to demonstrate how she would seek assistance or how she could deal with temporary accommodation and with forward planning. MW is reported to have presented some options of living in a boutique hotel owned by friends or with her daughter who might have a shed built for her. In the hearing MW proposed living in a government heritage building used by friends, which she described as having beautiful roses, manicured lawns and several different types of accommodation on the site.
Dr K said she considered that MW had no pragmatic or realistic planning around securing accommodation in a safe manner. Dr K said that MW was a complex presentation and that it had been difficult for the homeless team to manage and monitor MW in the community.
Dr K indicated that little was known of MW's financial affairs and that she had become quite guarded and felt persecuted and launched into paranoid ideation when questioned. It was observed when MW came into hospital she had a lot of cash but was not able to tell the hospital staff the exact amount of money and had to be reminded about this. She is also reported to have become accusatory towards nursing staff that her money had been stolen. Dr K reported that it was understood that prior to the admission MW had had an arrangement with the local café, where she had been sleeping rough, for food and newspapers and Dr K considered MW had some ability to manage her finances day to day.
The social worker Ms E reported that the coordinator for the homeless team at the Department of Housing had tried to offer MW accommodation in the past but she had been difficult to locate as she was transient and reportedly had not accepted past offers made.
In her evidence, MW denied that any assessments had been undertaken or that anyone had spoken to her about accommodation or where she was going to live after she left hospital. She said that no one had spoken to her about anything like this in the three months she had been in hospital.[3]
[3] ts 17, 6 October 2022.
Dr K confirmed that multiple discussions had occurred with MW about where MW might want to live, but that she had become quite distressed and tended to terminate the discussions.
MW said that she had been travelling the world for the last 40 years and had always found accommodation except in Western Australia.
Ms H, MW's sister, confirmed that MW was transient and said:
… she doesn't want to be tied down in one place all the time. She likes to move around. And as they said, transient. But that's in her nature. She's a free spirit. Does what she wants to do when she wants to do it. And she's quite capable of looking after her money[.][4]
[4] ts 21, 6 October 2022.
Ms H acknowledged that her contact (prior to MW's recent admission to hospital) had been quite limited for 15 years as she was unsure where MW was living. She said MW did not have contact with anybody. Her own contact with MW had been limited to 'possibly a Christmas card or a birthday card'.
When asked to clarify why Ms H said she believed MW was capable of managing her money, Ms H said MW 'has lasted this long looking after herself and travelling around finding accommodation for herself'.
When asked whether she knew MW was homeless living in Perth, Ms H said she did not know MW was in Perth. Ms H acknowledged that MW had been chronically homeless for about 20 years and reiterated that this was because she 'did not like to be hemmed in'.
Ms H questioned whether the reported memory impairment of MW might in fact be a lack of interest in the conversation, as she said MW was intelligent and probably thinks (the conversation) is not worth listening to.

Ms H said that MW 'had survived so long living on her own, doing her own thing, being homeless, finding accommodation here and there, why not let her keep doing it?'[5]
[5] ts 26, 6 October 2022.
Although Ms H said she was aware that MW had been assaulted prior to her hospital admission, and acknowledged that MW was now elderly and more highly at risk being homeless, she said that 'horrible things'[6] happen even if a person has a house.
[6] ts,27, 6 October 2022
Mr S, MW's nephew, said that she had stayed at his farm a few times over the last couple of years. In respect of MW's reported diagnosis, Mr S said:
… If you want to call it delusion or whatever that she suffers, she's scared of authorities, basically. And, you know, she would stay with me for periods and she would worry that if she stayed still long enough they would catch up with her. And that would be she would be stable there in her own room and that sort of stuff, and then something would happen like somebody would visit or something and she would suddenly get scared.
And she would term it as the dark forces catching up with her. And that's grounded in reality in the fact that she was really - I don't what the term is - stateless in America. Overstayed her visa for a long time and was literally worried about being caught for quite a long time in America. And so there's that fear is based in real experience, and it's maintained.[7]
[7] ts 28, 6 October 2022.
Mr S acknowledged that MW is an Australian citizen and that this fear is not a belief based in reality now and deferred to the psychiatrist to make an assessment as to whether this was a delusion.
Mr S agreed that MW had a fear that 'dark forces' were coming to intervene in her life. He said:
Yes, and that's the main thing. Any - and any authority - I feel like it's unfair to assess her now when the forces - that's in her terms - have caught up with her, basically, where she is. She was - if she was assessed when she was back out in the community, you might get quite a different assessment. Well, all her fears have come true and she is locked up for it, so. And she's - the stuff about money, she is very, very capable with money. When she stayed with me, you know, she would always be able to look after herself with money.
…
She would draw a pension in cash, basically, and - and make it last.[8]
[8] ts 29, 6 October 2022.
In respect of a potential claim for criminal injuries compensation, following the assault on her which brought her into hospital, Mr S said MW might be able to manage this with legal help. Ms H said MW might need a financial advisor if the compensation was a great sum.
MW's solicitor submitted that MW's estate consisted only of her pension and a bank account with no other assets.
Ms S explained that she had owned property in a southern town and had sold it at a profit because the area had become fashionable many years ago. She was able to give some detail about these transactions. She said had then had enough money to travel extensively before coming back to Australia. Dr T's report refers to MW selling a car to fund a big trip in 2004 to the United States of America. Upon returning MW reported not having enough money to purchase or rent a vehicle and subsequently walked everywhere.

Submissions of the Public Advocate

The investigator noted that she had met with MW and that MW had active delusions. The investigator noted the challenge between protecting someone and giving them their independence, but did say that MW would need someone to weigh up the risks, whether MW should go into residential care or return to the community. An aged care assessment should be done and for MW to then access community services as it would be beneficial for her to have formal support.
Submissions made on MW's behalf by Mr Versteegen were that MW's instructions were that she did not need or want either a guardian or an administrator appointed.
In particular, it was argued for MW that treatment decisions for her were being made under the MHA and that it was not necessary that a treatment function be included if any guardianship order is made. The submission is that a guardianship order is not necessary and is opposed by MW.
In respect of an administration order, it is argued that it is unclear how much information the treating team had about MW's estate to enable an assessment of her capacity to make reasonable judgments about it to be made, and it is understood that on this basis the submission is that the presumption is not displaced.

Wishes of MW

In addition to the submissions made on her behalf, MW also strenuously objected to any suggestion she has any illness or needs assistance of any kind.
MW described her background of involvement with organic growing and extensive travel in Europe in respect of her interest in this movement. She also travelled to South Africa and India. She described meeting a guide in India who still guides her and that she has guides from lots of different places. She strongly objects to the appointment of a guardian and administrator of her estate.

Legislation and principles to be observed

To appoint a guardian for MW, I must be satisfied that she is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others and is in need of a guardian.[9]
[9] Section 43(1)(b) and (c) of the GA Act.
To appoint an administrator for MW, I must be satisfied that MW is unable, by reason of a mental disability to make reasonable judgments in respect of matters relating to all or any part of her estate as and is in need of an administrator of her estate.
Those parts of the legislation are subject to principles set out in s 4 of the GA Act.
The principles provide that there is a presumption of capacity of persons coming before the Tribunal, that orders should not be made unless needed and that if there are less restrictive means by which the needs of the person concerned might be met that orders should not be made for them. The principles also provide that if orders are made they should be made in the least restrictive terms possible, the wishes of the person concerned should be ascertained, and the primary concern of the Tribunal is the best interests of that person.
In respect of the threshold question of whether MW is a person for whom a guardianship and administration order may be made, the starting position is that every person is presumed to be capable of looking after his or her own health and safety and making reasonable judgments in respect of matters relating to his or her person, managing his or her own affairs and making reasonable judgments in respect of matters relating to his or her estate (s 4).[10]
[10] Section 64(1)(a) and (b) of the GA Act.
The statutory presumption of capacity constitutes the starting point in any application made under the GA Act. It has been described as a fundamental principle and because of the significant consequences for an individual of having his or her decision-making capacity removed from them and a substitute decision-maker appointed for his or her under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity'.[11]
[11] GC and PC [2014] WASAT 10 [36].
Both MW and her family members oppose any intervention through guardianship or administration orders and assert her right to continue to live as she has done, essentially to remain homeless and transient in the community.
It is not the role of the Tribunal to determine the decisions to be made for MW as to where she should live, for example as the investigator outlined in her submissions between residential care or living in the community. The role of the Tribunal is to determine whether MW is capable of making that decision (and others) for herself and, if not, if the other statutory criteria are met, to appoint a guardian for her and or an administrator of her estate.
As recently observed by the Full Tribunal in MH [2022] WASAT 74:
In so far as the GA Act requires the Tribunal to determine whether a person is incapable of looking after their own health and safety or unable to make reasonable judgments in respect of matters relating to their person, that judgment does not depend upon whether the Tribunal agrees or disagrees with a person's decisions. As the Tribunal has observed on many occasions, people with the capacity to make decisions as to their personal and financial affairs are entitled to make decisions which others may regard as unreasonable or unwise. Consequently, the Tribunal will ordinarily look to medical evidence, or evidence from service providers experienced in dealing with people who lack decision-making capacity, in order to make a determination as to whether a person lacks the capacity to make decisions about their personal or financial affairs.[12]
[12] MH [120].
In respect of the application made for MW, the assessments and opinions given by the treating team are the only medical and or professional evidence regarding MW's diagnosis and the consequences of it for her functioning and her capacity to make reasonable judgments.
No other expert opinion or alternate professional evidence has been put which might challenge those opinions. Although dealing with different statutory criteria, I note that MW's involuntary status under the MHA was continued following a recent review by the Mental Health Tribunal.
I do not accept as submitted by Mr S that it is unfair that assessments have been conducted since MW's admission to hospital, or that opinions advanced from those assessments in respect of MW's capacity cannot be relied on.
Although I acknowledge that it is MW's belief, I do not accept that the 'dark forces' which she fears have caught up with her as expressed by Mr S, noting that MW was first brought into hospital by ambulance having been injured after being assaulted. MW's opposition to and distress to the continuation of that admission and to being confined and treated under the MHA as an involuntary patient against her wishes is acknowledged.
In respect of the lay evidence, I cannot place great weight on the evidence of the family members as to MW's capacity. In respect of Ms H's evidence, while supporting MW's wishes and her right to independence, her recent contact with Ms S has only been since MW has been admitted to hospital and has been too limited.
In respect of Mr S's evidence, his is much more recent and more significant contact with MW as she stayed with him at his home only a few years ago. While he also asserts the right of MW to live as she chooses, his own evidence supports the conclusion that MW's decisionmaking is driven by her beliefs about 'dark forces' pursuing her, those beliefs forcing her to leave the welcome, comfort and safety of her nephew's home.

Findings

There is, I consider, a distinction been travelling by choice for pleasure or for some other reason and being driven by fear to relocate and remain transient because of that fear. I accept the professional opinion that MW's beliefs are delusional and that these delusional beliefs drive her decision-making.
Although the cognitive assessments are not complete, because, I accept, MW would not cooperate with the assessments, I accept the evidence of the occupational therapist regarding the results of those components of the assessments that were completed and MW's observed impairments in memory and in problem-solving during her hospital admission.
I also accept the evidence of Dr K that there have been ongoing assessments of MW's mental state over the course of the admission and I accept her evidence and her opinion and am satisfied and I find that MW has a diagnosed psychiatric condition described as a chronic untreated schizophrenia or a chronic delusional disorder.
A psychiatric condition is within the definition of mental disability in the GA Act.[13]
[13] Section 3 of the GA Act.
I am also satisfied and I find based on all of the evidence that MW has a short-term memory impairment. I am satisfied that the short-term memory impairment as described by the occupational therapist is a mental disability for the purposes of the GA Act.[14]
[14] As discussed in FY [2019] WASAT 118 [26]-[32].
I am satisfied on all of the health professionals' evidence that the presumption that MW is capable of looking after her own health and safety and making reasonable judgments about her person and her estate is displaced.
I am satisfied and I find that MW is incapable of looking after her own health and safety and is unable to make reasonable judgments in respect of matters relating to her person. I am also satisfied and I find that MW is in need of oversight and care or control in the interests of her own health and safety.
I am satisfied and I find that MW is unable, by reason of a mental disability, to make reasonable judgments about her estate.
A person's estate is the aggregate of his or her property, his or her assets and liabilities and in practice encompasses the entirety of his or her real and personal property and all of his or her financial affairs.[15]
[15] SAL and JGL [2016] WASAT 63 [22].
In the decision FY [2019] WASAT 118[53], it was held that, an individual's ability to make reasonable judgments in respect of his or her estate requires that they have, amongst other things, the ability to:
… understand the need for, and the 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 identify and to assess the financial implications of particular items of expenditure or of financial decisions, to organise their affairs so as to able to meet debts as they fall due; and to identify and implement problem-solving strategies for resolving any unexpected financial issues.[16]
[16] FY [53].
On the available information from MW she has no assets and her only income is her pension income. Her estate is reported to be simple and she has, I accept, on the evidence of Mr S in the past drawn her funds out in cash and has been able to make her pension last. Relevantly the occupational therapist notes that she has had no expenses for rent or bills to be met from her income.[17]
[17] Service Provider Report of Ms S, dated 25 August 2022.
Historically, MW is reported as a highly intelligent person with a professional background and has in the past bought and sold properties and gave her own account of this history. She has clearly managed her own financial affairs in the past. However, the current evidence is that MW could not recall the amount of cash she had on her person, could not recall that it had been placed in safe keeping and accused nursing staff of stealing her funds.
Further, MW cannot, according to Dr T's evidence, which was endorsed in her oral evidence by Dr K, appreciate the risks to her funds and to herself of living on the streets with a large amount of cash on her person.
MW has, I accept, not been able to forward plan or problem solve in respect of identifying or sourcing suitable accommodation and says that discussions about this issue between her and the hospital staff simply did not occur.
Where the evidence of the hospital staff, the social worker, the occupational therapist and the consultant psychiatrist on this point conflicts with MW I prefer the accounts of the hospital staff in the material filed by them and the evidence of Dr K that multiple discussions occurred.
Further, I do not accept that MW cannot recall the discussions as she was not interested in them as her sister Ms H contends. Since MW has clearly and strongly expressed the view she wishes to be discharged from the hospital, I consider she has a keen interest in anything that would achieve this end.
I am satisfied that MW could not remember the discussions that I accept have taken place. Although Dr K's evidence is that MW's incapacity to forward plan and problem solve arises primarily from MW's mental illness, with the associated delusional beliefs and paranoia, I am satisfied that this together with her memory impairment both of which I find are mental disabilities, are more likely than not to mean that MW is unable to make reasonable judgments about all or any part of her estate. This is because I am satisfied that the impact of MW's memory impairment is such that she would not be able to rely on her memory of her estate and an appreciation of her financial circumstances to inform her decisionmaking about her expenditure or to make provision for her future needs. I am also satisfied that MW would be unable to progress any claim of criminal injuries compensation to which she may be entitled. I also am satisfied and find that MW be vulnerable to financial exploitation because of her impaired memory.

Need for orders

The applicant proposes that both guardianship and administration orders be made.
I accept the submission of the investigator that MW is in need of a guardian and an administrator of her estate. The need arises because of MW's incapacity to make reasonable judgments about her person and her estate and the lack of availability of less restrictive alternatives to the making of orders.
I am satisfied that recent informal supports of MW's sister and nephew although very welcome by her and by those engaged in providing care to MW do not provide a less restrictive alternative to orders.
Although the family members showed their support for MW by both attending the hearing in person, in the case of Mr S travelling from the country to do so, and advocated strongly for her in the hearing I am not satisfied that their support means that orders are not needed.
The family members do not appear to accept the professional opinion of MW's diagnosis or her incapacity and have expressed their own commitment to the primacy of her wishes. They would not in my judgment be able to be make decisions which might be judged to be in MW's best interests if that decision was against her wishes.
The primary obligation of decision-makers under the Act is to make a decision in the best interests of the represented person.[18] Also, as it seems that contact has only been re-established with her sister and nephew since her recent admission and any decisions which might be required to be made, may damage, possibly irreparably, those relationships and that contact. This is clearly not in MW's best interests.
[18] See s 4(2), s 51(1), s 70(1) and s 110H of the GA Act.
The social worker and the treating team recommend a secure environment for MW's safety because of the risk she will abscond from any residential care facility. This is completely against MW's expressed wishes and her known views of not being hemmed in and her previous lifestyle of frequent travel and transience.
There is a need for substitute decision-makers to be appointed as MW is unable to assess the risks of her own refusal of accommodation and is highly distrustful and fearful and I accept cannot engage in any meaningful way with the treating team to plan for her eventual discharge from hospital because of her memory impairment and paranoia. She is also resistant to care and is reported to have required six people to have a shower. It is said MW was not to be able to attend the hearing in person at the Tribunal's premises because of a risk of absconding. I accept that MW has been unable and unwilling to engage with staff at the hospital or reportedly with the Homeless Outreach team prior to this admission to hospital.
The investigator submits that the MW needs an Aged Care Assessment to facilitate access to services should a return to living in the community be possible and there is a need for a guardian to provide a consent for this to occur.

I am satisfied that there is a need for a guardian to determine where and with whom MW should live and to consent to services on her behalf. Any secure environment will require a consent to restrictive practices to be compliant with the relevant provisions of the Aged Care Act 1997 (Cth) as submitted by the investigator. I am satisfied that all of these functions are required by a guardian appointed for MW.
In respect of the submissions regarding the exclusion of the function to consent to treatment on behalf of MW, I accept that while an inpatient and an involuntary patient, psychiatric treatment decisions are made for her under the MHA and could potentially continue under a community treatment order once she is discharged. However, those provisions do not apply if MW is a voluntary patient and do not apply to medical and other health care. MW is now elderly and it is possible that her health care has been inconsistent as she has been transient for many years. I consider it is possible, even likely, that she may need treatment decisions to be made for her in the future.
Given MW's refusal to allow family members to be contacted by the hospital when she was first admitted to hospital, the ongoing estrangement from her children and the lengthy period of limited contact with her sister, I am satisfied and I find that the less restrictive alternative of reliance on the nearest relative to provide consent to treatment for MW pursuant to s 110ZD of the GA Act is not available in this case.[19] Such reliance would not provide sufficient certainty especially in the circumstances of an incapable refusal of necessary treatment for MW even if there was someone who could easily be identified as a 'nearest relative' under the provisions of the GA Act.[20] I find there is a need too for a guardian with treatment authority.
[19] Section 110ZD of the GA Act provides that a treatment decision may be made for a patient who is unable to make reasonable judgments in respect of treatment by the 'person responsible'.
[20] The person responsible is further defined in s 110ZD(3)(b) of the GA Act to include the patient’s nearest relative who maintains a close personal relationship with the patient.
MW does not have an Enduring Power of Attorney or Enduring Power of Guardianship and according to Dr T now lacks capacity to execute these instruments so they do not provide a lessrestrictive alternative for decision-making into the future.
I am also satisfied that there is a need for an administrator to be appointed to ensure MW receives her entitlements, to ensure her expenses are met and to pursue any claim for criminal injuries compensation on her behalf and to receive and manage any funds received.
No one else was proposed for appointment as either guardian or administrator and I accept the submission of the investigator that independent appointments are in the best interests of MW.
I am satisfied that a limited guardianship order with the functions to which I have referred is sufficient to meet MW current needs and as such a plenary guardianship order is not required.
I am satisfied that a plenary administration order is the appropriate order to be made for MW to allow for the functions as outlined to be carried out and because of the uncertainty regarding the extent of the estate to manage any other assets which may be identified by the administrator.
Although against the clearly expressed wishes of MW, which I acknowledge, I consider that to make orders as outlined is in the best interests of MW.

Length of the order

MW is reported to have a long-standing untreated mental illness with delusions which have not reduced following treatment. She is 87 years of age and is also experiencing cognitive and memory impairment and from the accounts of her family this is in marked contrast to her previous functioning. In these circumstances I consider that orders should be made for the maximum period, that being for five years. It is possible that MW's mental health symptoms may moderate in the future with further treatment and in those circumstances a review of orders could be sought.
For these reasons I make the following declarations and orders.

Orders

The Tribunal orders:
The Tribunal declares that the represented person, MW is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(f)in need of a guardian.

The Tribunal orders:

Administration
1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2. The administration order is to be reviewed by 31 October 2027.

Guardianship
3. 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 the services to which the represented person should have access;
(e)to decide whether to give or withhold consent to the use of any restrictive practice for the represented person proposed from time to time in compliance with Part 4A of the Quality of Care Principles 2014 made pursuant to the Aged Care Act 1997 (Cth).

4. 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.
5. The guardianship order is to be reviewed by 31 October 2027.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
1 DECEMBER 2022