NJH
[2018] WASAT 62
•12 JULY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: NJH [2018] WASAT 62
MEMBER: SENIOR MEMBER J MANSVELD
HEARD: 9 APRIL 2018 AND 17 MAY 2018
DELIVERED : 12 JULY 2018
FILE NO/S: GAA 516 of 2018
BETWEEN: NJH
Represented Person
Catchwords:
Guardianship and administration - Presumption of capacity - Neuropsychological assessment - Cognitive deficits - Impact of stress on ability to make reasonable judgments - Decisions made in represented person's actual living conditions - Represented person prone to regularly change his mind in situations of conflict - Orders made
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64(1)(a), s 64(1)(b), s 64(1)(c), s 64(1)(d), s 68, s 69, s 84, s 86, s 90
Result:
Guardianship and Administration orders made
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
FS [2007] WASAT 202
NJH [2017] WASAT 98
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
NJH is young man of 23 years of age. He has been and is currently the subject of guardianship and administration orders made under the Guardianship and Administration Act 1990 (WA) (GA Act).
The most recent orders were made on 16 June 2017 which appointed the Public Trustee as NJH's plenary administrator and the Office of the Public Advocate (Public Advocate) as his limited guardian with the authority to make decisions regarding his accommodation, medical treatment, services and the contact he can have with others (2017 orders).
The decision of 16 June 2017 was published as NJH [2017] WASAT 98 (2017 decision).
The 2017 orders were set to be reviewed by the Tribunal in 12 months (by June 2018). However, prior to the review NJH himself made application for review of the orders pursuant to s 86 of the GA Act.
The review of the guardianship and administration orders was held over two hearings, on 9 April 2018 and 17 May 2018.
Not all of the parties who attended the hearing in 2017 attended the current review proceeding. Those who did attend were as follows:
•NJH
•SM former carer and friend
•CM current carer of NJH
•LM current carer of NJH and spouse of CM
•SS service coordinator with the agency that coordinates services to NJH (service agency)
•TC delegated guardian from the Public Advocate
•Dr S Clinical Neuropsychologist who gave evidence on 17 May 2018
The decision was reserved.
Relevant legislation
The primary concern of the Tribunal is the best interests of NJH: s 4(2).
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of NJH as expressed, in whatever manner, at the time, or as gathered from his previous actions: s 4(7).
NJH is presumed to be capable of looking after his own health and safety; making reasonable judgements in respect of matters relating to his person; managing his own affairs; and making reasonable judgements in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3).
Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for NJH unless it is satisfied on the evidence that he is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect of matters relating to his person; or is in need of oversight care or control in the interests of his own health and safety or for the protection of others.
Under s 64(1)(a) of the GA Act, the Tribunal cannot consider appointing an administrator of the estate of NJH unless it is satisfied on the evidence that by reason of a mental disability, he is unable to make reasonable judgments in respect of matters relating to all or any part of his estate.
Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to NJH, the Tribunal must further determine whether he is in need of guardianship and administration orders. If the needs of NJH can be met in a manner less restrictive of his freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b).
If the Tribunal decides that NJH is in need of guardianship and administration orders it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68 , s 69 and s 84.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of NJH then a plenary order should not be made. If limited guardianship and administration orders are made the orders must place the least restriction necessary on him: s 4(5) and s 4(6).
Upon review of a guardianship order, the Tribunal may, as it considers in the best interests of NJH, confirm the order or amend the order, revoke the order or revoke the order and substitute another order for it. The Tribunal may revoke the appointment of any guardian, appoint a new or additional guardian or appoint an alternate guardian: s 90.
Upon review of an administration order, the Tribunal may, as it considers in the best interests of NJH, confirm the order or amend the order, revoke the order and substitute another order for it. The Tribunal may revoke the appointment of an administrator or appoint a new or additional administrator: s 90.
Medical and neuropsychological evidence regarding NJH's capacity
In the 2017 decision the Tribunal had before it a report from NJH's general practitioner who described the diagnoses that had been made in respect to NJH since 1997 as ADHD, autism spectrum disorder, borderline intellectual functioning, antisocial personality disorder and a previous drug induced psychosis (2017 decision at [14] and [15]).
For the current review the Tribunal had the benefit of a report from Dr S, and Dr S' oral evidence. An assessment of NJH's capacity by a clinical neuropsychologist had been anticipated in the 2017 decision and was a reason for the 2017 orders being set for a 12 month review (2017 decision at [132]).
NJH was assessed by Dr S on 6 November 2017. The report of Dr S is dated 15 December 2017.
Relevantly the report of Dr S states as follows:
•CM and LM told Dr S that NJH has made significant gains in his functioning since coming into their care in 2012 and that there had been no recent problems with his behaviour (anger) which they said was attributable to his current stable home environment.
•CM and LM told Dr S that NJH's independent living skills have improved with direct support and instruction from them. NJH needs ongoing support for complex and new learning tasks but the required support has decreased over time.
•Testing undertaken by Dr S reveals that NJH has very low overall intellectual functioning with relative strength in his verbal abilities; he is fully oriented; he has very low basic attention span and working memory but appeared to adequately sustain his attention over time; his processing speed is very low; he has low average verbal skills and very low visuospatial skills; and his initial memory and learning is reduced (very low to extremely low), particularly on unstructured tasks, although NJH benefits from repetition and retains what he has learned.
•Testing also reveals that NJH has low average to very low average cognitive flexibility and response inhibition although there are no indicators of any generalised executive functioning impairments or problems with impulsivity. Reports from CM and LM (and NJH) do not indicate any functional problems with executive functioning.
•NJH has very low single-word reading skills and extremely low mathematics (numerical operations) skills.
•NJH told Dr S that he speaks to CM and LM or his guardian to clarify information if he is unsure. He also described plans to continue to consult with CM and LM around major decisions should the guardianship and administration orders be removed.
•NJH said that he would choose to stay in his current accommodation (with CM and LM) if given the opportunity to make that decision.
•Dr S assessed NJH as consistently providing appropriate responses to practical problems and he is assessed as having an adequate ability to understand relevant facts, choices and consequences of decisions with regards to medical matters.
•NJH is assessed by Dr S as able to learn and apply new information.
•Dr S describes NJH's current psychosocial environment as stable and supportive. He states that the support of CM and LM and other formal and informal supports to be important in developing NJH's decision-making and independent living skills into the future.
•Dr S opines that NJH has the ability to make reasoned personal, lifestyle, treatment and financial decisions although he might require additional time or opportunity to review information when making more complex decisions.
•Dr S supports the revocation of the guardianship order and a six month transition to the removal of the administration order.
In his oral evidence Dr S relevantly states as follows.
•NJH has a bit more difficulty than most people with reasoning skills and with some other aspects of his functioning such as the rate of his learning and his memory.
•He also shows quite significant strengths including a number of average scores in testing in his ability to reason with words and his ability to understand other verbal information.
•NJH did quite well on some tests of executive functioning including his ability to inhibit his responses.
•His rate of learning overall is slower than most people but he benefits from repetition. He retains what he has learned over time really well. When things are structured he can learn more effectively.
•NJH's Full Scale IQ score does not meet the standard definition of intellectual disability. His performance is around the range of the lower five percent of people.
•It is difficult to know to what extent NJH could potentially be influenced by others. It would depend on the situation. Overall he is perhaps a little more vulnerable than most people but not to the extent that he wouldn't better form his own view about his decisions and to reason about that himself.
•When put to Dr S that currently there is conflict and dispute between SS of the service agency and the carers LM and CM (see below) and how that might impact on him, Dr S states that stress could potentially be a factor that might affect NJH's ability to think clearly but it would depend on his emotions in that particular moment. Dr S states that in the assessment interview NJH was quite calm and collected and so long as he is able to retain that state of mind he would expect NJH to cope with the situation described.
•When put to Dr S that NJH's delegated guardian reports that NJH regularly changes his mind about things, Dr S states that he would not expect that to happen on the test results. NJH did not show any problems reporting a stable decision in the scenarios presented to him during the assessment. Whether or not NJH is prone to change his mind was not specifically assessed.
•When put to Dr S that NJH has about $12,000 in savings with the Public Trustee as his administrator, Dr S states that the main concern he has about NJH making financial decisions is about his lack of experience in making those decisions. The existence of savings does not alter that view.
Other evidence and submissions
SS, service coordinator with the service agency
In a written report filed with the Tribunal, SS states that he has been NJH's coordinator and mentor for five years. NJH contacts SS on an almost daily basis.
SS states that NJH has telephone contact with his mother but does not contact his stepfather or stepfather's family.
SS states that he has observed NJH becoming confused when contemplating the simplest of financial decisions such as managing his weekly allowance. NJH is regularly observed seeking advice and support regarding simple financial decisions from both his formal and informal supports. That improvement has taken place is a consequence of the significant and constant support NJH receives from his support workers. SS states that NJH needs support and prompting to pay any bills.
SS states that NJH also needs support and prompting to understand and follow the advice of treating medical professionals. He will almost always seek support from those around him.
SS submits that NJH has a vulnerability to follow the advice of others who do not always have his best interests in mind. He submits that the guardianship and administration orders currently minimise the impact of this 'negligent advice'. An example of the alleged negligent advice is that NJH's 'informal supports' encouraged him to undertake neuropsychological testing as a way of demonstrating that he does not need the guardianship and administration orders.
SS submits that NJH is not aware of his vulnerabilities and limitations that result from his disabilities. SS contends that neuropsychological testing on its own is not a valid measure of NJH's capacity to make decisions 'without the influence of others who may not necessarily have his best interests in mind'.
In his oral evidence SS describes the informal supports who may not be acting in NJH's best interests as his mother, stepfather, friends and SM (and her spouse IM).
SS also considers that NJH's formal (paid) supports have also at times had an 'adverse influence' on him (ts 26, 17 May 2018).
SS contends that when NJH holds a person in high regard he has a tendency to unquestioningly accept what he is told. SS states that when he has attempted to voice a contrary view or by his reckoning correct information that has been given to NJH, NJH will continue to accept the view of the person about whom he has a high regard.
SS states this to be the case notwithstanding that he says he has a very good relationship with NJH.
The concern raised by SS is that NJH's informal supports are questioning whether the service agency is appropriately supporting him and whether the service agency is misappropriating the funding that is received for his care and support.
SS makes particular reference to SM and IM in the context of the informal supports of which he has a concern although he acknowledges that they were instrumental in the beginning to have appropriate services found for NJH. He states that the relationship between NJH and the service agency was good until he reintroduced SM to NJH in April 2017 as an informal support and advocate in attempting to have the then guardian (NJH's grandmother) removed.
SS says that something must have upset SM about the way in which the service agency was supporting NJH because following the appointment of the Public Advocate as his guardian in June 2017, NJH asked the guardian for a new service agency. NJH is also said to have contacted another service agency himself.
SS also states that it was NJH's choice not to have anything to do with SM and IM for nearly three years because he had an issue with them. In that respect SM's family have not always been involved with NJH.
SS states that he spoke with NJH prior to the hearing and NJH told him that he did not need a guardian and that if the guardianship order was removed he would, in the first few months, gather the opinions of others about the decisions he would need to make. He said he would do that until he became comfortable in making the big decisions on his own.
SS considers that it is a good thing that NJH seeks the advice of others. However, SS says he asked NJH if he could know whether the advice given to him was in his best interests, to which NJH reportedly said, no he could not. SS sees that as evidence of NJH having some insight into the decision-making process.
SS states that in his view, NJH is not in an 'ideal environment at the moment'. He has not been coping well with the stress and is reported to have told SS that if the situation at home did not improve he would consider moving from his current living arrangement (ts 41, 17 May 2018).
SS acknowledges that NJH has made progress towards more independence in the five years he has worked with him, however SS considers NJH to still be significantly vulnerable to the influence of certain people around him and that the guardianship and administration orders are a necessary safeguard against that influence.
When asked by NJH why, if he considers SM and IM to be a bad influence, did he allow a visit to the home of SM and IM in New South Wales. SS states that was a decision of the guardian not his. SM and IM wanted to be paid for NJH's care during the visit, the visit had already been organised and he did not want to disappoint NJH so payment was agreed.
SM, friend and former carer
SM has filed a written submission with the Tribunal.
In the submission, SM calls into question the motives and credibility of SS. SM states that SS is not and has not been an active person in NJH's life and presents purely in an administrative and limited contact role. She says that SS has not had sufficient ongoing quality time to know NJH as a person.
SM contends that SS continues to behave in an oppressive manner towards NJH and clings to old diagnoses and traits that NJH displayed when his life was so overwhelming.
SM states that SS has made statements about NJH being influenced by people who do not have his best interests at heart but without giving examples. She submits that SS is motivated by a conflict of interest in not wanting the service agency to lose funding. She says that she is aware that NJH has requested that SS be removed as coordinator many times over the past six months and that these requests have been noted by the managing director of the service agency and NJH's guardian.
In her oral evidence SM states that it upset her that the service agency was aware of the alleged abuse of NJH by his grandmother which involved the police (SS disputes the service agency was aware at the time).
SM states that she and IM have always been a consistent part of NJH's life. She says that they were there at the start of NJH's 'journey' and take exception to being accused of being a negative influence on him. SM states:
[NJH] does ask for things to be clarified. And he feels at times very frustrated because his voice is not being heard. One of those examples has been that he has asked to get another coordinator and he is either talked out of it or talked around it. But at the [end] of the day, that was his request and it has never been respected.
(ts 31, 17 May 2018).
I digress to note that in his oral evidence SS states that NJH has never said to him that he would like a new coordinator and that NJH has direct access to the service agency's manager and director to express any concerns.
SM is of the view that despite the stress of having some of his supporters in dispute, NJH can make his own decisions. SM states that NJH has been able to articulate his wishes in a very controlled manner. He is very clear and concise about what he wants.
SM maintains that NJH is able to obtain information regarding decisions that need to be made. He is very capable of getting on the telephone, contacting people and resourcing information.
SM states that NJH has come from a very challenging background where everyone was always fighting and he does not want that to be now part of his life. As an example of how he has dealt with this, NJH has decided not to have contact with his stepfather's family and has told his mother that he will only communicate with her once a fortnight. These are the boundaries he has set himself.
CM and LM, carers
LM states that if NJH is not sure about something he will ask and discuss what concerns him not only with her and CM but with others. NJH will search for and obtain information for clarification following which he will make his own decision.
LM states that NJH has always people around who only want the best for him. She says all NJH needs is a safe environment.
When asked how NJH copes with the stress of the current difference of views between some of those people who support him, LM states that in her view NJH has been coping and can cope as long as he is informed about what is happening.
LM states that she believed the issues of concern to NJH had been resolved.
When asked whether NJH is open to influence, LM says that when a decision needs to be made she discusses it with him. She always asks what he is thinking about the presenting issue.
LM states that regarding NJH's money, she and CM have set a budget for him which is gone through with him and the more consistent he is with it the more confident he becomes.
CM states that in his view NJH is more capable to make decisions than he was 12 months ago. He speaks with other people and seeks reassurance from CM and LM. CM does not believe NJH is coerced in any way, he is very strong minded and will have his own opinion and will challenge the views of others which is encouraged.
CM says he believes that NJH is frustrated at being held back by the guardianship and administration orders. CM states that NJH has worked hard over the last 12 months and has proven how responsible he is. For example he has opened bank accounts for himself.
CM submits that NJH is in a safe environment, that he always asks if he is not sure about something and CM questions what could go wrong in those circumstances.
The guardian
The guardian filed a written report with the Tribunal and gave oral evidence.
The guardian states that there have been ongoing issues for some period of time between the service agency and CM and LM. The issues concern clarification of roles and responsibilities and communication.
The guardian says that the situation for NJH is complex and she questions the sustainability of accommodation and the role of the service agency.
The guardian states that in her view the disabilities of NJH make him prone to be easily influenced by others when making a decision. She states that NJH regularly demonstrates changes in his previously expressed wishes depending on who he is with at the time. He has regularly changed his mind about the service agency and his accommodation arrangements. As a consequence the guardian is concerned that NJH might not fully understand the consequences of his frequently changing decisions.
The guardian states that after the hearing in April 2018, NJH contacted her to request a change in respite arrangements and contacted SS to request a change to his accommodation.
The guardian submits that a guardianship order appointing the Public Advocate should remain in place for the time being primarily for decisions around accommodation and support services. The guardian states that NJH's medical needs are currently not complex and he is dealing with family contact himself. A guardian is not needed for those matters.
The guardian supports the reappointment of the Public Trustee as administrator on the basis as suggested by Dr S that NJH be given more responsibility to manage his money in a staged process.
The appointed administrator
The Public Trustee as the administrator of NJH's estate filed a written report with the Tribunal for the hearing on 9 April 2018.
The Trust Manager reports that she has responded to the recommendation of Dr S that NJH be given more control over his money. Unfortunately there were considerable delays in establishing a bank account in NJH's name but one was finally opened in February 2018.
From that time NJH has been paid an allowance of $100 per week direct to his bank account rather than as previously being paid to CM and LM. It is the intention of the Trust Manager to increase the allowance and pay it fortnightly.
The Trust Manager reports that NJH also receives approximately $120 per fortnight from his supported employment and this is distributed to him once a fortnight.
The Public Trustee was holding $12,780 in savings for NJH at the time of the report.
NJH
NJH gave oral evidence and subsequent to the hearing on 17 May 2018 (on the same day) a submission was filed with the Tribunal purportedly written by him.
In his oral evidence NJH relevantly states as follows;
•He has been a little stressed over the last two months or so because of concerns in his living arrangements.
•He has previously spoken with the owners of the service agency about changing coordinators but they always seem to come up with a reason why it should not happen.
•He thinks he spoke briefly with the guardian about this at the beginning of 2018 but he cannot exactly recall.
•Despite this, his relationship with SS as his coordinator is currently good. For example, he has been asking SS about the roles and responsibilities of CM and LM. He states that he is able to talk with SS about matters that concern him.
•He understands the role of SS is to help him when he has an issue and manage his support workers. For example, he has recently asked SS not to continue with the current respite support worker because the support worker has been driving unregistered and he doesn't like the respite environment (the support worker's home) because it is very untidy.
•He has another support worker who takes him fishing or shopping.
•He is entitled to National Disability Insurance Scheme funding for his support.
•He has concerns about some of the behaviours in his accommodation with CM and LM. He is not feeling comfortable there at the moment. He does not consider CM and LM controlling.
•If he decided that he wanted to change his accommodation he would firstly have a meeting with SS. He would rely on SS to find him alternative permanent accommodation and he says he might need respite accommodation before that could happen.
•The daughter of SM and LM has offered for him to stay with her. She visits him at CM and LM's home. CM and LM do not know about this offer but he thinks SS knows.
•He is of the view that he no longer needs a guardian (he proposes a trial period without a guardian) but agrees with the recommendations of Dr S that he should be given more control over his money in a staged process. He says he has not had much experience with control of his money and he needs to learn to be able to do this. He has been undertaking some online lessons in budgeting.
•He receives all of his wages from the Public Trustee plus a portion of his pension. This means he receives $230 one week in to his bank account and $120 the second week of the fortnight period. This arrangement is working well.
In the later submission which has not been seen by the other parties and was purportedly written by NJH, he questions the truthfulness of some of the statements made by SS. For example, he says that SS was aware of the alleged abuse by his grandmother because he telephoned SS at the time.
NJH states that he has never told SS that he did not want to speak with SM and IM. He says that he made contact with SM at a Christmas party 2015 when he was in respite care with CM and LM and he has maintained contact since then.
NJH states that he only has accommodation issues currently with the service agency in respect of the 'bad respite care they sent me to' not with CM and LM.
NJH states that despite being currently on good terms with SS that does not mean he has a good relationship with him. NJH expresses concern at what he perceives as SS's hatred of SM and IM. According to NJH SM and IM have only ever been good to him.
Discussion of the issues
It is important to return to the provisions of the GA Act that deal with the question of capacity and which are unique to that legislation.
Section 43(1)(b) and s 64(1)(a) are the expression given by the GA Act as to what constitutes incapacity for personal (guardianship) and financial (administration) decision-making respectively.
These provisions are subject to the statutory presumption in s 4(3) of the GA Act.
I will first turn to s 43(1)(b) and its application to NJH.
The need for a guardian can only be considered by the Tribunal if a finding is first made that NJH is incapable of looking after his own health and safety (s 43(1)(b)(i)); is unable to make reasonable judgments in respect to matters relating to his person (s 43(1)(b)(ii)); or he is in need of oversight, care or control in the interests of his own health and safety or for the protection of others (s 43(1)(b)(iii)).
It is not uncommon in proceedings under the GA Act for parties to convey their views of a person's capacity through the lens of the person's ability (or not) to make reasonable judgments about personal matters. This is what Dr S has done for example.
It cannot be the case however, that if there is insufficient evidence to make a finding under s 43(1)(b)(ii); then those matters of incapacity captured by s 43(1)(b)(i) and s 43(1)(b)(iii), simply fall away.
A straightforward reading of s 43(1)(b) is that the various matters are to be taken as disjunctive or discrete even though more than one element may be found to apply to a person.
Section 43(2) of the GA Act requires the Tribunal after having found that a person is in need of a guardian under s 43(1)(c) to declare the matter or matters set out in s 43(1)(b) of which it is satisfied.
The scope of the findings able to be made on the evidence no doubt impacts on the sort of authority that can be given to a guardian in a guardianship order.
The evidence before the Tribunal in respect to NJH is that even those parties who consider him able to make decisions for himself largely frame their opinions in terms of his need for a stable, safe and structured environment.
There is no suggestion from any of the parties for example that NJH is currently able to live entirely on his own. The accommodation options presented in this proceeding are based on him living with necessary inhome support.
It seems to me that when those who say NJH can make his own decisions about his accommodation (including NJH himself) they do so within a framework of with whom he will live given the common acceptance that he needs a living environment with structure and one that is safe.
I agree with this view which underpins the current accommodation needs of NJH.
It therefore seems uncontroversial that I should make a finding that NJH is in need of oversight and care in the interests of his own health and safety. This is consistent with the evidence.
The most controversy concerns whether NJH can make reasonable judgments about personal matters.
The current guardianship order gives the Public Advocate the authority to make decisions regarding NJH's accommodation, the provision of formal support services, his medical treatment and with whom he should have contact.
These four areas or domains of NJH's personal life continue to be the ones that most impact on him.
I accept the evidence that in the structured environment in which he has been living together with the availability of other supports and advice, that NJH has made improvements in his approach to the way he makes decisions. He demonstrated this approach to Dr S which includes seeking advice and clarifying information.
The setting in which NJH was able to satisfy Dr S was that of a formal testing environment divorced from NJH's actual living conditions. Moreover the framework presented to Dr S by CM and LM (and NJH) was that of stability and freedom from conflict.
This is not the current reality of NJH's situation as his evidence and the evidence of other parties demonstrate.
There is serious conflict between SS on the one hand and SM, LM and CM on the other.
I am satisfied that the direct impact this has on NJH is that he often changes his mind on who he wants as service coordinator and where he wants to live depending with whomever he has had discussions and the stress he is under.
I prefer the evidence of the guardian in this regard as a person not tainted by the conflict and with direct experience of NJH regularly changing his previously expressed wishes.
The apparent abrupt changes of mind is revealed by NJH himself. In his evidence to the Tribunal he expressed a discomfort with his current accommodation and said he had recently explored alternative accommodation. However, in the submission received directly after the hearing NJH states that the only accommodation issue for him is that of respite and not his living arrangements with CM and LM.
NJH does the same in respect to his assessment of SS as his service coordinator. In his oral evidence, he states that despite some difficulties, his current relationship with SS is good and that he would first meet with SS before changing his accommodation.
In his later submission, however, he effectively accuses SS of lying in his evidence to the Tribunal.
Dr S states that on the results of the testing he conducted, he would not have expected NJH to change his mind to the extent disclosed by the guardian.
Dr S accepts that stress could be a factor affecting the ability of NJH to think clearly but the extent would depend on his emotions in that particular moment.
I am satisfied that NJH has less cognitive reserves relative to others of his age as the testing of Dr S shows. This becomes more apparent when he is under stress and he has to reconcile the differing and conflicting views of those who are close to him and upon whom he relies.
I accept that NJH tries very hard to mediate the advice given to him, however he is torn by the conflicting advice and will react in the moment.
As a consequence of this conflictual situation I am satisfied that NJH is currently unable to make reasonable judgments about his accommodation and service provision.
This is not the case in situations of having to make medical decisions and more recently with whom he has contact because those currently close to him appear not to be in conflict about these issues and he can discuss these matters in a supportive environment, the scenario in which Dr S states NJH can reasonably decide things.
The tension and uncertainty that currently exists in NJH's life needs to be resolved.
In my view this can only happen with the Public Advocate remaining as NJH's guardian for the immediate future having the authority to make decisions about where and with whom NJH is to live and to determine the services to which he should have access and who should provide those services.
I will accordingly amend the guardianship order made on 16 June 2017 to reflect my decision.
I will set a review of the guardianship order for 12 months.
The management of NJH's money is relatively uncontroversial relative to the personal matters already addressed by the guardianship order.
NJH has a number of cognitive deficits that impact on his reasoning ability regarding his money including low intellectual functioning and extremely low mathematics (numerical operations) skills.
I am satisfied that the cognitive deficits described by Dr S in their totality meet the requirements for the making of a finding of mental disability.
There is conflicting evidence between SS and LM and CM regarding the extent to which NJH can manage his money. SS says that he has observed NJH seeking advice on even the simplest of financial matters (SS mentions the allowance given to NJH) whilst LM and CM say that they have set a budget for NJH which he is becoming more confident of handling.
They may both be right in that NJH is still in the early stages of learning about the value of money.
Given NJH's cognitive deficits I am of the view that at this time he still lacks the ability to make reasonable judgments about his estate in the sense that he is unable by himself to undertake a process described in the Full Tribunal decision in FS [2007] WASAT 202 at [107] to [109] as one that involves knowledge, understanding and evaluation.
The estate of NJH comprises cash funds of about $12,000 and his entitlement to the disability support pension. The savings are not insignificant relative to the current abilities of NJH to manage such a sum safely.
NJH seems to recognise this which is to his credit.
I will therefore confirm the administration order for a further 12 months and add a request to the Public Trustee that NJH be given increasing responsibility of managing his income during the term of the order.
Orders
The Tribunal declares that the represented person, NJH;
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)is in need of an administrator of his estate,
(c)is unable to make reasonable judgments in respect of matters relating to his person;
(d)is in need of oversight, care or control in the interests of his own health and safety; and
(e)is in need of a guardian,
and the Tribunal orders that:
The administration order dated 16 June 2017 is amended so that it now reads:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.The administrator is authorised to expend up to a total amount of $300 per annum on gifts on behalf of the represented person.
3.The administrator is requested to give the represented person, if appropriate, an increasing responsibility to manage his income during the term of this order.
The guardianship order dated 16 June 2017 is amended so that it now reads:
4.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, 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.
5.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.
6.The administration and guardianship orders are to be reviewed by 6 July 2019.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, SENIOR MEMBER
12 JULY 2018