RM
[2006] WASAT 46
•24 FEBRUARY 2006
RM [2006] WASAT 46
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 46 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1566/2005 | 22 NOVEMBER 2005 | |
| Coram: | MR J MANSVELD (MEMBER) | 24/02/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | The Public Advocate is appointed limited guardian | ||
| B | |||
| PDF Version |
| Parties: | RM LI |
Catchwords: | Guardianship and administration – Represented person exhibiting at-risk behaviour – Needs of the represented person – Need for a guardian – Less restrictive alternative to the appointment of a guardian – Represented person loses right to make decisions when a guardian is appointed – Benefit of having a guardian appointed |
Legislation: | Guardianship and Administration Act 1990 (WA) s 4, s 4(2)(c), s 4(2)(d), s 43, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 64(1)(b), s 97(1)(b) |
Case References: | Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RM [2006] WASAT 46 MEMBER : MR J MANSVELD (MEMBER) HEARD : 22 NOVEMBER 2005 DELIVERED : 24 FEBRUARY 2006 FILE NO/S : GAA 1566 of 2005 BETWEEN : RM
- Represented Person
LI
Applicant
Catchwords:
Guardianship and administration – Represented person exhibiting at-risk behaviour – Needs of the represented person – Need for a guardian – Less restrictive alternative to the appointment of a guardian – Represented person loses right to make decisions when a guardian is appointed – Benefit of having a guardian appointed
Legislation:
Guardianship and Administration Act 1990 (WA) s 4, s 4(2)(c), s 4(2)(d), s 43, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 64(1)(b), s 97(1)(b)
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</LR>
Result:
The Public Advocate is appointed limited guardian
Category: B
Representation:
Counsel:
Represented Person : Selfrepresented
Applicant : Selfrepresented
Solicitors:
Represented Person : Self-represented
Applicant : Self-represented
Case(s) referred to in decision(s):
Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA)
Case(s) also cited:
Nil
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Summary of the Tribunal's decision
1 The Tribunal appointed the Public Advocate as limited guardian under the Guardianship and Administration Act 1990 (WA) for a 28-year-old woman who had suffered a traumatic brain injury when she was a child and who had residual deficits in her personal decision-making.
2 The guardian was appointed to make decisions about where and with whom the woman should live and to determine the services to which she should have access.
3 The young woman was found to put herself at risk of harm in her relationships with men because of her inability to assess the risk in the choices of relationships she made. She was living close to an entertainment establishment and this presented as an environment which exacerbated her risk-taking behaviour.
4 Professionals assisting the woman recommended that she change her accommodation and agree to increased social support, but she saw this as an unnecessary restriction to her independence.
5 The Tribunal decided that the young woman would benefit from the appointment of a guardian because the decisions that needed to be made were critical to the degree to which she could enjoy future independence. The woman's mother was not considered a suitable guardian because she and the woman had had a difficult relationship for many years. The woman's friend was also considered unsuitable as her guardian because their relationship was at the level of a social acquaintance. The Public Advocate was therefore appointed as the woman's guardian for a period of two years to enable the accommodation and support decisions to be made and allowed to settle.
Background
6 These reasons relate to an application for guardianship for RM (the represented person) made by LI of the State Head Injury Unit. LI did not attend the hearing, but MN who is the represented person's case manager and also from the State Head Injury Unit, attended in her place. Reference to the written material provided by LI and the oral submissions made by MN will be described as "the applicant".
7 The application was heard on 22 November 2005 and was attended by the represented person, MN, JM (mother), PM (brother), RK (friend),
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- GC (representative of the Public Advocate) (the Public Advocate) and JMe also from the Office of the Public Advocate.
Decision
8 The Tribunal has decided to appoint the Public Advocate as the represented person's limited guardian with the functions to determine where and with whom she should live and the services to which she should have access. The length of the order is two years.
9 The Tribunal will provide reasons for its determination by firstly stating the relevant legislation, then discussing the written material both medical and other submissions followed by a discussion of the oral submissions and finally analysing all the information against the legislation to come to its determination.
Relevant legislation
10 When considering guardianship, the Tribunal must be satisfied that the represented person is someone for whom a guardian could be appointed (the question of capacity) and if found incapable, whether the person should have a guardian appointed (the question of need). If a guardian is to be appointed, the final questions to be considered are what functions should be given to the guardian and who that guardian should be.
11 The relevant legislation is contained in s 4, s 43 and s 44, of the Guardianship and Administration Act 1990 (WA) (the GA Act).
12 With regard to guardianship, the Tribunal needs to be satisfied that the person for whom an application has been made is incapable of looking after his or her own health and safety, or unable to make reasonable judgments in respect of matters relating to his or her person or is in need of oversight, care or control in the interests of his or her own health and safety or for the protection of others, and is in need of a guardian (s 43).
13 The principles to be observed by the Tribunal when dealing with proceedings under the GA Act are set out in s 4. The primary concern of the Tribunal shall be the best interests of the person for whom the application has been made. The remaining principles are, firstly, that every person is presumed to be capable of looking after his or her own safety and health; of making reasonable judgments in respect of matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to his or her estate. Secondly, an order appointing a guardian or administrator shall not
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- be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Thirdly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of the person concerned. Fourthly, an order appointing a limited guardian or an administrator shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of action and decision. Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.
14 The question of who should be appointed guardian is provided for in s 44 of the GA Act. The person must be at least 18 years of age, consent to the appointment and, in the opinion of the Tribunal, will act in the best interests of the person for whom the application has been made; not be in a position where their interests conflict or may conflict with the interests of that person and is otherwise suitable to act as guardian for that person. When considering suitability, the Tribunal shall take into account as far as possible the desirability of preserving existing relationships within the family of the person for whom the application has been made; the compatibility of the proposed appointee with that person and with the administrator (if any); the wishes of that person and whether the proposed appointee will be able to perform the functions vested in them. A proposed appointee who is a relative of the person for whom the application has been made is not by virtue only of that fact taken to be in a position where their interests conflict with that person. An administrator is not disqualified from being appointed a guardian. Finally, except where appointed to act jointly with another person or persons, the Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
The written submissions
15 Included with the application is a "Social Work Report" dated 7 September 2005, prepared by the applicant setting out in some detail the background to the represented person's current situation and why guardianship is proposed for her.
16 The represented person is a 28-year-old single woman. She was involved in a motor vehicle accident just before her sixth birthday and apart from her physical injuries also sustained a traumatic brain injury which, according to the applicant, has resulted in, "cognitive impairments (including decreased information processing and verbal memory
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- deficits)". The represented person received compensation for her injuries in late 1996 and the Public Trustee manages these funds.
17 The represented person lived with her mother, JM, until October 2003 when the relationship broke down and JM was made to leave the represented person's home. The represented person applied for a restraining order against her mother which was granted for a period of twelve months from December 2003. It has not been renewed. The applicant states that the represented person refused her permission to contact JM in relation to the application for guardianship.
18 The applicant states that the represented person is unable to sustain "… mutually beneficial friendships and relationships" and is vulnerable to sexual exploitation. Her main social outlet is karaoke and she frequents "clubs and pubs" for that purpose where it is alleged she consumes alcohol to excess.
19 The applicant states that the represented person's relationship with her carers is "… intensely dependent and then intrusive". She will "fire" her carers and threatens the same with the State Head Injury Unit.
20 The applicant states that the team at the State Head Injury Unit has come to the view that the represented person requires a new living arrangement, "… either in a cluster housing situation with on-call supervisors, or to agree to a live-in care assistant". The basis for this view is "our concerns for [the represented person's] safety in light of her high risk behaviours, sexual promiscuity, her three allegations of having been raped in less than two years, and the outcome of at least two of these allegations, led us to re-examine [the represented person's] care plan". The applicant alleges that the represented person has not been willing to consider alternatives "…as she says they would restrict her 'freedom'." The applicant considers that the represented person also needs assistance in deciding with whom she should live and associate. In her application, the applicant alleges that the represented person's mother has been putting pressure on her to sell her house and buy a property in another suburb.
21 The applicant has enclosed with her report a number of medical and psychological assessments of the represented person with respect to her capacity to make decisions and other matters. These assessments will be discussed later in these reasons. The applicant is of the view that the represented person is unable to make reasoned decisions about her living arrangements. She states that the represented person, though oriented to time, place and person, becomes confused when faced with multifaceted
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- and complex information. The represented person is said to be able to deal with "three stage instructions" if these are stated simply and clearly. In the application, the applicant states that the represented person has no insight into her cognitive impairment and that she has very poor social judgment and responses. In addition, the represented person is said to confabulate and will perseverate in her thinking and behaviour.
22 The Public Advocate has provided a written report to the Tribunal. The Public Advocate spoke with the represented person prior to the hearing and she relevantly advised as follows: she does not want her family involved in controlling any part of her life; she would favour her friend, RK, to help her decide her accommodation; her mother and brother want her to purchase a townhouse with stairs opposite the beach near to a hotel; she would not consider accommodation where she could not keep her two dogs and although she is not sure she wants to move, she does have in mind a smaller house in a different suburb near to a beach for her dogs. The represented person will no longer allow men to take advantage of her because she will "…not get intoxicated in their presence."
23 In the report the Public Advocate states that the represented person would not be averse to moving to a more suitable location and that a guardian would not be required to enable this to occur. If an accommodation decision were made contrary to the represented person's wishes, then it would be unlikely that a guardian could enforce that decision. The Public Advocate further states that should an accommodation decision be made solely on the basis of the represented person's need for increased safety in social situations, this might be restrictive of her rights and freedom of choice.
24 In respect of care services for the represented person, the Public Advocate states these have been reduced at her expressed wish and it is not clear what a guardian could do in forcing the represented person to cooperate with these services. As to her contact and association with others, this concern may or may not be reduced with changed accommodation and services but could be dealt with by urgent application to the Tribunal if required. In conclusion, the Public Advocate states in the report that it is not clear how effective a guardianship order would be in practice but that if the Tribunal were to decide that a guardian was needed for the represented person, it could consider appointing the Public Advocate for twelve months with the direction that RK be consulted or appoint RK for the same period subject to a "police clearance" and "positive" character references.
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25 At the request of the Tribunal when the application for guardianship was referred to the Public Advocate pursuant to s 97(1)(b) of the GA Act, the Public Advocate spoke with the represented person's current general practitioner, Dr CS. This contact is reported in the Public Advocate's report and will be discussed later in these reasons.
26 JM, the represented person's mother, has provided a written submission to the Tribunal. She opposes the application for guardianship but states that if the Tribunal decides that a guardian is needed then she should be appointed. She states that she is the only person who will act in the represented person's best interests unconditionally. JM further states that she deeply loved, cared for and supported the represented person for the 26 years that she was in her care. She has never tried to force the represented person to leave her current accommodation.
27 JM is supported in her submission by her niece, LA and LA's husband, JKA, who both wrote to the Tribunal on 15 November 2005.
The capacity information (written reports and assessments)
13 and 21 May 1993 assessment by DC, Clinical Psychologist
28 This assessment, undertaken when the represented person was 16 years of age, concludes that she would not be expected to cope in an unsupported school or work environment.
11 May 1998 neuropsychological assessment undertaken by LD, Clinical Psychologist (Registrar) and SJ, Senior Clinical Psychologist at the State Head Injury Unit
29 The assessment concludes that the represented person's "cognitive strengths and weaknesses" were similar to that at the 1993 assessment conducted by DC, clinical psychologist. The represented person has "… a quite impoverished rate of information processing" but "… has some strength in the area of attention and new learning with the primary difficulty remaining in the area of speed processing and visuo-spatial material".
23 June 1999 letter by Dr WM, Specialist in Rehabilitation Medicine to the State Head Injury Unit
30 Dr WM assesses the represented person as not being fit to drive or learn to drive a motor vehicle.
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- 7 December 1999 Education Report by GW (Teacher) Royal Perth Hospital School Program
31 This report refers to "language tests" and concludes that the represented person performs at a "… concrete level and has difficulty with inferential interpretation".
16 July 2002 letter by Dr GES, Consultant Psychiatrist to Dr CS, General Practitioner
32 This report deals mainly with issues surrounding the represented person's relationship with her mother in 2002. Dr GES make reference, however, to the represented person's "impaired cognitive function" and her history of "frontal lobe symptoms [which] will result in a vulnerability to low frustration tolerance and a tendency to angry outbursts".
18 April 2003 letter by Dr LH, Clinical Psychologist to the State Head Injury Unit
33 Dr LH was assisting the represented person with relationship issues with her mother. In response to the possibility that the represented person might be seeking alternative accommodation, Dr LH states "I believe [the represented person] has sufficient cognitive capacity to determine where she would like to live and within reason, the circumstances".
5 December 2003 by Dr GES to Dr CS, General Practitioner
34 In this report, Dr GES concludes:
"I do note the history of lability consistent with frontal lobe injury. [The represented person] is competent to make decisions regarding her living circumstances. With regard to her competence to manage her activities of daily living, from my history obtained from [the represented person] and the report from [MN] the current arrangements put in place by the State Head Injury Unit appear satisfactory."
- 6 January 2004 "Doctor's Guide" by Dr CS, General Practitioner
35 In this report, Dr CS takes the view that the represented person is capable of making reasonable decisions about her personal health care, her accommodation and her day-to-day finances.
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- 6 January 2004 "Doctor's Guide" by Dr SH, Neurologist
36 Dr SH states that in her opinion the represented person "… has minimal impairment of her mental function but is able to make reasonable decisions".
7 January 2004 "Doctor's Guide" by Dr WM, Specialist in Rehabilitation Medicine
37 Dr WM states that the represented person is "… slow at processing information, has abnormal adaptive problem solving and visual-spatial dysfunction". Although he finds her capable of making reasonable decisions in relation to her living situation including accommodation, he adds, "there may be some difficulties requiring supportive help".
12 January 2004 a report by MN Case Manager/Senior Occupational Therapist at the State Head Injury Unit
38 In her report, MN, who is an applicant in these proceedings, refers to the earlier reports of Dr LH dated 18 April 2003, and the neuropsychological assessment conducted by LD and SJ dated 11 May 1998. On the basis of her own assessment MN states:
"In a functional context I have observed [the represented person] to become confused when presented with multifaceted and complex information such as in developing budgeting skills. Her confusion appears to be proportional to the degree of complexity of content. [The represented person] is oriented to time, place and person and able to follow up three stage commands if stated very clearly. She is able to utilize [sic] public transport and attends appointments punctually.
I would consider [the represented person] vulnerable however in making decisions such as accommodation without a degree of support due to [her] deficits … as well as demonstrations on occasion of verbal aggression toward others, poor impulse control and disinhibited behaviours in social situations."
- 17 November 2005 "Primary Carer Guide" by NH the Coordinator of "Getabout Program" of Rocky Bay Inc
39 In this report, NH states the view that the represented person "… appears to have difficulty in identifying and practising safe/appropriate social skills" and as a consequence puts herself at risk of assault and injury. NH recommends the appointment of a "… short-term 'social development coordinator' who will explore options with her where
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- she may make genuine friends with common interests (where exploitation is a lesser risk) and coordinate staff support to participate in such options. [The represented person] felt she did not need this support".
1 November 2005 "Doctor's Guide" by Dr CS, General Practitioner
41 The Public Advocate spoke with Dr CS on 15 November 2005 and states in the report of 18 November 2005, the doctor's view that because of the represented person's impairment, there is a significant lapse of time between the making of a choice and her understanding of the consequences of that choice. Dr CS uses the example of the represented person's relationship with men and how her impulsive choice of relationships has placed her in unsafe situations. Dr CS is reported to say that this concern might be resolvable with greater supervision of the represented person. Dr CS told the Public Advocate that he has treated the represented person over a long period of time and this has enabled him to assess her decision-making capacity.
Oral submissions (the hearing)
42 The applicant submits that a guardian is proposed for the represented person because of an impasse that has developed in the decision-making for her accommodation and care support. The team at the State Head Injury Unit has come to a view that the represented person's decisions about her relationships with men are placing her at risk and that her current accommodation, which is near to a hotel, provides an environment which exacerbates the opportunity for the at-risk decision-making.
43 In respect of the care and social support that the represented person receives, the applicant states that at the time of moving into her present accommodation she received 26 hours of care. This support was initiated to assist the represented person towards independent living and included assistance with transport, shopping, cleaning, meal preparation and social support during the day and certain evenings. It was the intention that the care hours would be reduced over time according to need.
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44 The represented person states that she currently receives the following support; six hours during the day on a Monday and Thursday for social support and outings and some hours to assist with the cleaning of her house on each Saturday. She says she does all her own shopping. The represented person says that she undertakes voluntary work at a nursing home on Tuesday and Friday mornings and is registered with a supported employment agency. It is her hope that she will obtain part-time paid employment at the nursing home.
45 The applicant states that the represented person has had three options put to her. Firstly that she consider accommodation in a cluster housing arrangement in which she could live with her dogs and which would provide 24 hour supervision and support. The second option is that she agrees to increased home care and social support. The third option and which according to the applicant would be the least desirable, is that of supported accommodation such as a hostel.
46 The applicant states that the option of increased support would include maintaining the independent living assistance the represented person is currently receiving and "… also support over the evening and social times where [the represented person] has been going out, getting inebriated, having difficulty with different friendships made and really to provide a support person … so we are looking at overnight care – at support." (Page 20 of the transcript).
47 The applicant submits that at the time these options were first put to the represented person, she was unable to make a decision about them and made a proposal that alternative accommodation be purchased for her. The represented person had found a property that she liked and had made contact with real estate agents. The applicant states the proposed property is adjacent to a 24 hour delicatessen and so would present the same problems about the possibility of inappropriate social contact for the represented person as does her present accommodation.
48 The applicant states that the team at the State Head Injury Unit "… feels very strongly that a number of options and services have been offered to [the represented person] and have been exhausted and … our relationship has been problematic as is often the case when we work with people who don't often see us to be working in their best interests" (page 48 of the transcript).
49 The applicant states that the proposal to purchase a property is not supported by the Public Trustee as the manager of the represented person's
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- compensation funds given that her current property was purchased not that long ago. The Public Trustee favours renting accommodation in an appropriate location to trial its suitability with a view to purchase in the future. The applicant states that the represented person has also declined this option.
50 The represented person states she can afford to purchase a house and does not need rental accommodation, either in a cluster home arrangement or any other way. She says that renting is a waste of money and that it would be better to purchase another property. She does not support the appointment of a guardian and "… does not see the point in this" (page 56 of the transcript).
51 The represented person states that a security fence could be built at the front of her house to prevent undesirable people from entering her property. She says that she does not go out at night now because she is too tired and "… because there's people doing too much. They act all stupid. It too loud. I can't go out to night clubs because you can't talk …" (page 22 of the transcript). The represented person states that she might accept support at night but she would not want the carer to stay overnight in her home.
52 JM, the represented person's mother submits that guardianship is not needed and that all the people supporting the represented person should get together to discuss what is best for her. She says that the decision to purchase the current property would not have been made by the represented person and that she (JM) disagreed with that decision from the beginning. JM states that she does not support the cluster home option and would favour the represented person living in her own home with a full-time carer. She says that if the Tribunal decides to appoint a guardian it should be her, even though she and the represented person have had a difficult relationship in the past. She says she presently has a good rapport with the represented person now that they do not live together. She believes she could make decisions in the represented person's best interests even if those decisions were contrary to the represented person's wishes.
53 PM, the represented person's brother, submits that the represented person can make her own decisions and look after herself. He says he maintains only minimal contact with her. He says that most of the represented person's friends are "very good people", that she has learnt from her "bad" decisions and that her friends with whom he has had contact are supportive of her. PM concedes that the represented person
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- still requires some assistance but in the area of physical help such as house cleaning.
54 RK, a friend of the represented person, states that he has known her for about five years and used to see her weekly at a particular tavern but that lately it has not been as frequent. He has observed how the represented person has put herself at "extreme risk" when, for example, after midnight he has gone home from the tavern and she has stayed on. He submits that she needs a guardian to make the decision about her accommodation. The represented person has told him she does not want a guardian to be appointed. RK submits that the decision about accommodation belongs with the represented person's mother and brother but if that were not possible he would propose himself as guardian.
55 The Public Advocate states that a lot of people in the represented person's "area" know the represented person and know where she lives and as she lives close to a hotel there is also the difficulty of intoxicated people causing problems for her. However, the represented person has expressed the view that she would like to have a new start and move to another location which is not close to a hotel. The Public Advocate states that contact has been made with a representative of the Public Trustee who is open to consider any proposal, renting or purchase, provided the decision is economically sound and it is supported by the service providers who assist the represented person. There is also the option of retaining the represented person's current property whilst the alternatives are trialled.
56 The Public Advocate states that the decision about the purchase of the represented person's current property was made by the represented person with assistance from service providers and the Public Trustee. It was initially a good decision but subsequent events have shown that the decision might now need to be changed. It is submitted that the circumstances of the represented person have not changed sufficiently to prevent that process of decision-making from being used again. The represented person is not opposed to moving, except to cluster and hostel accommodation. A guardian is not needed for that decision-making and in any case could not enforce a decision with which the represented person disagreed. It is further submitted that the appointment of a guardian "… would be a total intrusion on her rights" (page 44 of the transcript).
57 In respect of support services that are made available to the represented person from time to time, the Public Advocate submits that
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- these too could not be enforced by a guardian. The Public Advocate refers to the proposal by Rocky Bay Inc for the appointment of a "social development coordinator" for the represented person which she rejected and submits that this proposal could still be explored or trialled.
58 The Public Advocate submits finally that if the Tribunal considers a guardian is necessary for the represented person then the order should be limited to the functions of accommodation and the determination of care and support services.
Discussion of the submissions and findings of the Tribunal
59 There is some inconsistency in the medical and allied health reports which describe assessments of the represented person in respect of her capacity to make reasonable judgments about her living situation, including whether she is able to consistently keep herself safe. These reports cover the period from 1993 to 2005 and consist of specialist and general medical, and other opinion.
60 PM, the represented person's brother, is of the view that the represented person has the capacity to make all personal decisions and that her friends provide sufficient support such that a guardian is not needed.
61 The represented person suffered a traumatic brain injury when she was about six years of age from which she has residual mental and physical deficits. The brain injury seems to have impacted on the speed at which the represented person is able to process information and results in her becoming confused when that information is complex and multifaceted. There appears also to be a degree of impulsivity and a low tolerance to frustration in her behaviour, and when the deficits are taken as a whole her decision-making is affected. The degree of the impairment seems to be dependant in part on the environment in which the decisions are made. The example typically used for the represented person is how she chooses relationships with men and the fact that she puts herself at risk of harm because of her seeming inability to assess the risk of situations in which she places herself. Dr CS, the represented person's general practitioner for over seven years, appears to indicate that there is a lapse of time between the decision made and an understanding of the consequences. RK, the represented person's friend, describes a situation in a tavern in which, in his view at least, the represented person put herself at risk but was seemingly oblivious to it. The applicant submits that this lack of the appreciation of risk is demonstrated by the fact that when the represented person recently proposed that a new property be
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- purchased for her, she chose one near to a 24 hour delicatessen, thereby potentially perpetuating the problem of the risky social contact she currently faces living near to a hotel.
62 It is clear from the information and submissions presented to the Tribunal that the represented person has to rely upon support in her decision-making and it would appear that most of the opinions of the health professionals about the represented person's decision-making abilities have built this circumstance into their assessments.
63 The Tribunal has given more weight to the opinions of Dr CS, general practitioner, and MN, senior occupational therapist and case manager, because they have dealt with the represented person over some years and have had the benefit of close contact and a longitudinal perspective of her decision-making abilities. It is this perspective that has allowed Dr CS to change his opinion from January 2004 to his most recent assessment in November 2005. As for MN, she and the team at the State Head Injury Unit have been closely involved and assisted in the significant decisions that the represented person has made about accommodation and the provision of support services.
64 The Tribunal therefore finds, on balance, that the represented person is a person for whom a guardianship order could be made and that she satisfies the provisions of s 43(1)(a) and s 43(1)(b) of the GA Act.
65 When a person is found to be incapable, pursuant to s 43(1)(b) of the GA Act, the question that next has to be considered is whether she "is in need of a guardian" pursuant to s 43(1)(c).
66 The meaning of "is in need of a guardian" was considered by the Full Board of the Guardianship and Administration Board in Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) at 320 – 332.
"…it is apparent that where the provisions of s 43(1)(b) are met it will usually follow that there will be a need for a guardian as provided in s 43(1)(c). The same can also be said in relation to the need for an administrator under s 64(1)(b). This is so because unless a guardian or administrator is appointed there would in most cases be no one with legal authority to make decisions in respect of the represented person. There would in other words be a legal vacuum. Therefore the 'need' in those sections in our view means the 'need' for someone to have formal legal authority to make decisions on behalf of the
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- represented person in order to resolve issues relating to the personal affairs of the represented person or to manage and protect the financial estate."
67 There may, however, not be a need for a guardian pursuant to s 43(1)(c) if for example, "… there is some other statutory provision which gives legal authority for the decision-making in question […] or if there is in fact no live issue or foreseeable conflict in relation to the personal affairs of the represented person so as to give rise to the need for this Board to intervene in the life of the represented person by making a formal order." (MM at page 330.)
68 The Tribunal must further determine "need" by taking into account the meaning of "needs of the person" in s 4(2)(c) of the GA Act which was also considered by the Full Board in MM (at page 330):
"… the phrase 'needs of the person' … involves a different test. The 'needs' there described are of wide import and encompass all the wants and necessaries of the person. Thus there is a two-step process. The Board must first determine whether there is a need for a guardian in s 43(1)(c) (or a need for an administrator in s 64(1)(b)) and then move on to the issue whether, notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of that person can nevertheless be met under informal arrangements which are less restrictive of the person's freedom of decision and action."
69 There is currently no legal authority in place for the represented person in respect of decisions about her living situation. There is, however, a "live issue" that is in conflict and currently remains unresolved. The issue is that of the represented person's accommodation and the provision of support services. The applicant is of the view that the represented person's accommodation and support need to be changed because she is not sufficiently protected from the risk of harm. The options generated by the team at the State Head Injury Unit have not, according to the applicant, been agreed to by the represented person and there is an impasse in the decision-making.
70 The Tribunal agrees that a "legal vacuum" exists in the represented person's personal affairs and finds that she is in need of a guardian pursuant to s 43(1)(c) of the GA Act.
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71 The Public Advocate and JM, the represented person's mother, submit that the informal process used to date to assist the represented person in making decisions has not been exhausted and should be further explored. This would obviate the need of a guardian because the needs of the represented person can be met less restrictively than by the appointment of a guardian. The Public Advocate cites the example of the represented person's current property which was selected and purchased without the input of a guardian, although JM states that in her view the represented person did not likely make the decision to purchase that accommodation with which she (JM) disagreed. The Public Advocate submits that the represented person is not averse to moving and has been active in seeking new accommodation.
72 The applicant submits that the represented person has not been able to deal effectively with the accommodation and support options put to her by the team at the State Head Injury Unit and as she is unable adequately to assess risk, her most recent choice of a property to purchase was not considered appropriate by the team. The applicant further submits that the represented person's mother has put pressure on her to purchase an inappropriate property. JM disputes this. The applicant also states that the Public Trustee will not yet agree to purchase a new property, unless the suitability of the agreed location is first tested by way of a rental property. The represented person is against renting saying she has sufficient funds to purchase. The Public Advocate, in a contact with the Public Trustee, disputes the assertion that the Public Trustee will not consider the purchase of a property.
73 RK, the represented person's friend, submits that she is in need of a guardian because of his direct knowledge about the risk in which she places herself.
74 The Tribunal does not agree with the submissions of the Public Advocate and JM. The represented person is at an important, transitional stage of her life where the team at the State Head Injury Unit is recommending a greater level of support in the context of alternate accommodation. The represented person is resisting this, seeing it as an unacceptable degree of intervention in her life. The Tribunal is of the view that the impasse in the decision-making is no longer open to informal resolution and that the significance of the decisions to be made is such as to require an objective consideration outside of the current framework. In the context of the needs of the represented person this can best be done by the appointment of a guardian.
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75 The Public Advocate submits that the appointment of a guardian "… would be total intrusion on [the represented person's] rights". The Tribunal acknowledges that the appointment of a guardian has the effect of removing certain decision-making rights from a person, however, in the circumstances of the represented person the Tribunal finds that her need for protection currently outweighs her right to make particular decisions about her personal affairs. As already stated, the decisions to be made for the represented person are significant in the context of the degree of future independence she will have in her life. In that regard, the Tribunal would rather view the appointment of a guardian in a more positive light, namely that the represented person deserves the benefit of a guardian in this time of critical decision-making.
76 The Tribunal therefore finds that the needs of the represented person, pursuant to s 4(2)(c) of the GA Act, cannot be met except by the appointment of a guardian. The Tribunal is not, however, convinced that the represented person is currently in need of a guardian with plenary powers, and in keeping with the principle that a plenary guardian should not be appointed if a limited guardian is sufficient (s 4(2)(d)), appoints a guardian with the following functions: deciding where and with whom the represented person should live, and determining the services to which she should have access.
77 As to who should be the guardian, JM has proposed herself and RK has proposed himself, but only if a determination is made that the represented person's mother and brother cannot undertake that role.
78 Despite the representations made by JM supported by her niece and the niece's husband, the Tribunal does not find her to be suitable to be the represented person's guardian. The submissions show that the represented person and JM have had a difficult relationship for many years and despite having recently lived apart, the represented person is still very strong in her view that she does not want her family involved in controlling any part of her life. In fact, the applicant states that the represented person did not want her mother to be contacted about the guardianship application. The view held by the represented person is not one conducive to the constructive relationship that she must have with her guardian.
79 The Tribunal is also not satisfied that RK is suitable to act as guardian for the represented person. His submission is that he has known her in a mainly social setting and the Tribunal is not convinced on the information available to it, that the relationship between the represented
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- person and RK can be translated into one in which RK assumes the role of authoritative guardian.
80 The Tribunal finds that neither JM nor RK is suitable to act as the represented person's guardian and therefore pursuant to s 44(5) of the GA Act, the Public Advocate must be appointed. As to the length of the order, the Tribunal is of the view that the represented person will likely require the authority and advocacy of a guardian for a period which at least enables the accommodation and support decisions to be made and allowed to settle. The Tribunal will therefore make the order two years.
I certify that this and the preceding [80] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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