RWC - [2012] WASAT 71

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RWC [2012] WASAT 71

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 17 NOVEMBER 2011 AND 8 DECEMBER 2011

DELIVERED : 16 APRIL 2012

FILE NO/S: GAA 2251 of 2011
GAA 2252 of 2011

BETWEEN: RWC
Applicant/represented person

Catchwords:

Guardianship and administration Mental disability Mental illness Dementia Cognitive impairment Executive dysfunction Unable to make reasonable judgments Enduring power of guardianship Enduring power of attorney Need of a guardian Joint guardianship Need of an administrator Direction to administrator Term of orders

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(c), s 43, s 43(1)(b)s 43(1)(b)(ii), s 43(1)(b)(iii), s 43(1)(c), s 44, s 44(5), s 64, s 64(1)(a), s 64(1)(b), s 68, s 84, s 86, s 90, Div 3, Pt 5
Mental Health Act 1996 (WA)

Result:

Guardian and administrator appointed

Category: B

Representation:

Counsel:

Applicant/represented person : Mental Health Law Centre

Solicitors:

Applicant/represented person : Mental Health Law Centre

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The represented person was an elderly man for whom guardianship and administration orders had been made in 2010, when he was a patient in a psychiatric hospital. He had suffered a relapse of his chronic mental illness and had been admitted to hospital as an involuntary patient.
The Public Advocate had been appointed his guardian and the Public Trustee his administrator.
Some 12 months after the orders had been made the represented person had sought review of the appointment of the guardian and administrator. It was his contention that orders were not required, that his mental illness was stable and that he could make his own decisions.
During the course of the proceedings for review of the orders the represented person underwent a neuropsychological assessment. That assessment found that he had significant cognitive compromise, and that the nature and extent of the cognitive difficulties appeared to exceed that which would be expected given his complex medical and psychiatric background. The neuropsychologist opined that the cognitive changes were suggestive of the emergence of a dementia.
Although the results of the neuropsychological assessment were accepted by the represented person's private psychiatrist and his public psychiatrist, the private psychiatrist was of the view that his functioning was relatively intact, and that he was capable of executing an enduring power of guardianship and an enduring power of attorney.
The Tribunal found that the represented person's cognitive deficits had their greatest impact on his higher functioning required to plan, organise and carry out significant decisions, such as his accommodation, general support needs and medical needs. The Tribunal decided that the represented person was in need of a guardian to make decisions in these areas of his personal life.
The Tribunal also found that the represented person lacked insight into his cognitive deficits, and because he did not approve of his current accommodation, he should not have control of his finances as he was unlikely to pay the costs of unwanted accommodation judged as suitable by his guardian. The Tribunal decided the represented person continued to be in need of an administrator to manage his small estate.
Given the represented person's lack of insight into his cognitive deficits it was decided by the Tribunal that an enduring power of guardianship and an enduring power of attorney would not be suitable in his circumstances.

Background

RWC (represented person) is an 83yearold man who is the subject of an administration order made by the Tribunal on 19 May 2010, and an order for guardianship made on 25 May 2010; both orders having been made pursuant to the provisions of the Guardianship and Administration Act 1990 (WA).
The administration order appoints the Public Trustee with plenary authority, and the guardianship order appoints the Public Advocate with the functions of deciding where and with whom the represented person is to live, and to consent to his medical treatment and health care.
The initial applications for guardianship and administration were made by a mental health clinic at a time when the represented person was in hospital having been admitted as an involuntary patient under the Mental Health Act 1996 (WA).
On 26 July 2011 the represented person sought a review of the guardianship and administration orders under s 86 of the GA Act. The matter was set down for a hearing on 22 September 2011 but was adjourned so that a neuropsychological assessment could be undertaken. The matter was finally heard on 17 November 2011 and 8 December 2011.
The hearing was attended by the represented person, his counsel from the Mental Health Law Centre, his sister and brotherinlaw, and the delegated guardian from the office of the Public Advocate.
The decision was reserved.

Relevant legislation

The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
When a guardianship or administration order is reviewed the Tribunal can confirm, amend or revoke the order, or revoke the order and make another order in substation of it (s 90 of the GA Act). In coming to a judgment about whether orders should be made, the relevant provisions of the GA Act are s 4, which states the principles of the Act; s 43 and s 64, which speak to the questions of capacity and the need for guardianship and administration orders; and s 44 and s 68, which guide the Tribunal in the determination of who should be appointed guardian and administrator. Relevantly these sections state:
4.       Principles stated
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person’s freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
43.     Making of guardianship order
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40
(a)has attained the age of 18 years;
(b)is
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint
(d)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of a guardian, it shall also declare the matter or matters set out in paragraph (b) of that subsection of which it is satisfied.
…
(3)An appointment under subsection (1) … may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit.
(4)An order appointing a limited guardian shall specify the functions that are vested in the limited guardian under section 46.
64.     Making of administration order
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.
(3)An appointment under subsection (1)
(a)may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;
(b)may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given.
44.     Who may be appointed guardian
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
68.     Who may be appointed administrator
(1)An administrator (including a joint administrator) shall be
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
(2)The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that
(a)there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b)the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(4)The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.

The operation of the guardianship order made on 25 May 2010

At the time of the hearing on 17 November 2011, the Public Advocate (guardian) had been the represented person's guardian for about 18 months. She had been appointed to make decisions about where and with whom he is to live, and to consent to his medical treatment and health care.
The guardian states that the represented person lives in an aged care hostel where he has a single room and where he receives assistance with his meals and domestic chores. The represented person has been a resident of the hostel for four and a half years.
It is the view of the guardian that the existing accommodation provides the represented person with an environment in which his medications are supervised, and his activities are given a degree of oversight and monitoring. In practical terms the hostel provides the represented person with all of his domestic needs, as well as an important point of contact with his community mental health team.
The guardian states that the represented person has a well established routine within the hostel and the local community, such that he is able to '... exercise choice and freedom of movement through accessing the community without restraint'. The guardian submits that the represented person cannot safely live without the structure provided by the hostel and is of the view that, were he not under guardianship, he would attempt to access unsupported private rental accommodation. The question of the represented person's safety arises, the guardian submits, because he lacks insight into his medical conditions (see below) and has a history of poor compliance with his medication.
Although the guardian has not had to make an active decision regarding the represented person's accommodation (other than to support his ongoing residency at the hostel), she states that the represented person has said on numerous occasions that he wants to leave the hostel. The represented person is alleged to have said that he could share a unit with a (younger) female carer or employ her to care for him. He has reportedly made many requests of the operator of the hostel to reside in one of its retirement living units, but has declined to meet with the guardian to discuss this option.
Much of the activity of the guardian has had to do with the represented person's medical needs. The guardian submits that the represented person is secretive about his affairs. He is said to have initially entered into a working relationship with the guardian, but the relationship stopped when the represented person became aware of the guardian's access to information, in particular, information that contradicted his account of things.
The guardian has provided a number of consents to treatment. They include consent for a cystoscope (July 2010); admission to a psychiatric hospital for treatment and stabilisation (August 2010); transfer of the represented person's medical file to a general practitioner to prevent disjointed medical care (August 2010); consent for cognitive assessment ultimately refused by the represented person (September 2010); and a refusal to consent to the represented person's request to change general practitioners because the current practitioner has a good relationship with his mental health team (October 2010). The guardian has given the mental health clinic an enduring consent for blood testing to ensure the represented person's medications are at therapeutic levels.
The guardian states that the represented person is an active consumer of health services, and, for the most part, manages his specialists' appointments. However, it is said to be a practice of the represented person to access medical views that support his own. It is alleged that he has accessed 15 different medical specialists in the past 12 months without necessarily informing the practitioners of his current treating doctors or medication regime. The guardian submits that the represented person is unrealistic about his ability to afford private health cover and private medical specialists. The guardian has needed to alert these specialists of the represented person's situation and negotiate, where possible, bulk billing or referral to the public health system. The guardian states she has been able to reduce the number of specialists who are attending to the represented person. Some of the specialists have refused further attendances of the represented person after the initial consultation.
The guardian states that the represented person presents in a plausible and capable manner, even when unwell. He is said not to have the typical features of his diagnosed bipolar disorder. When he is unwell he is reported to experience a sense of calm with increased activity such as overspending, agitation and poor sleep rather than the usual features of mania such as pressured speech and flight of thought.
The represented person has voiced his disapproval to the guardian of the guardianship and administration orders. He sees them as an attack on his dignity and independence.
The guardian proposes the continuation of the guardianship order.
The guardian states that the represented person has a son and a sister in Perth (the sister attended the hearing). The son is said to have little interest in his father but would be willing to be contacted if required. The sister retains an interest in the wellbeing of her brother, but has told the guardian that his circumstances exhaust her, upon which she tends to withdraw. The spouse of the sister has told the guardian that the represented person has a pervasive influence over the sister, such that she will ultimately accede to his wishes

The operation of the administration order made on 19 May 2010

The Public Trustee (administrator) did not attend the hearing but provided a written report.
The administrator was faced with a number of unpaid debts incurred by the represented person at the time the administration commenced. They were a telephone account in the hands of a debt collection company $1,296.73 (since reduced to $800 and being repaid at $20 a month); fines enforcement $168 (repaid); and the accommodation account $3,185 (repaid).
There were also a number of cheques that the represented person had drawn but which had not been honoured by his bank, which included a gift to a female companion, one of a number of gifts he had made to her. The represented person had engaged in some work but had not notified Centrelink, which had resulted in an overpayment of his age pension. The represented person had recently arranged driving lessons at a cost of $440.
The administrator states the represented person corresponds frequently by letter outlining numerous requests and demands. The administrator states that most of the debts have been cleared or repayments arranged; however, he has been unable to secure a cheque book which has caused concerns.
The administrator states that he has had frequent contact with the guardian regarding the represented person arranging private medical appointments. Contact has also been made with the represented person's sister, because the represented person has frequently redirected correspondence of various agencies from the administrator to the sister's address.
The administrator submits that the represented person has been unrealistic in many of his expectations, and has an unrealistic view of his financial position. At the time of writing the report (19 September 2011), the administrator was holding $2,303.88 in funds against debts owing of $2,746 (dentist $1,986 and Telstra $760).
The represented person is in receipt of the Centrelink age pension ($748.80 per fortnight), and part pension from the United Kingdom ($234.48 per month), out of which is paid his accommodation fee ($578.76 per fortnight), chemist account, private health insurance, debt repayments, and an allowance to the represented person of $100 each fortnight.

The evidence and submissions of the represented person

In his written application the represented person submits that he is handling all his personal and financial affairs in a competent manner, and that there is no need for a guardian or administrator. He states that he has only met the guardian once in the last 14 months. The guardian had intervened to have medications prescribed by a psychiatrist stopped, and had also cancelled two appointments with a medical practitioner who 'bulk billed' under Medicare. He had met with the chief psychiatrist who had advised him to strongly appeal these decisions of the delegated guardian with the Public Advocate, which he had done and about which he had not received an acknowledgement. He submits the actions of the guardian have been 'sheer negligence'.
The represented person alleges that the Public Trustee, as administrator, has been incompetent in the management of his finances, and that he has evidence to support his claim.
The represented person states that the orders are causing him stress and anxiety and are having a detrimental effect on his wellbeing. Otherwise he states that his mood has generally been good over the past 18 months, and that '… the medication enables me to carry on living justifiably' (T:6, 17.11.11).
The represented person challenges the guardian's evidence that he has accessed 15 different medical specialists in the past 12 months, and states that it has more likely been about eight in number, all, he says, relative to his general health and wellbeing.
In respect to his accommodation, the represented person states that when he first moved into the hostel it was a different establishment to what it is now. It is, in his view, a glorified nursing home. He says that the remaining residents are not well and suffer from dementia or 'other illnesses', and that this is not conducive to the 'right sort of outlook'. He states that he has been on the priority public housing waitlist and that an opportunity should arise in the near future (through the public housing system) for him to return to the residence he moved from four years ago. At that time the represented person says that he received assistance from Silver Chain '… and the government … and (indistinct) elderly people within their homes, and they readily assist in that regard' (T:22, 17.11.11).
(In her oral evidence the guardian states that she has investigated the represented person's applications for public housing and has been advised that he has been removed from the waitlist because he has rejected five rental properties he says two. The represented person is said to have appealed the decision but he did not attend the recent hearing, and, as a consequence, the decision of the public housing body has been confirmed.)
As regards the represented person's financial affairs, in particular, the evidence of the administrator about the debts that had accrued at the beginning of the administration, the represented person says that the majority have been cleared '… in correspondence which for some reason or other the [P]ublic [T]rustee tends to disregard' (T:20, 17.11.11). Through his counsel the represented person submits that the spending which led to the debts might, in part, at least have occurred because of the relapse of his bipolar disorder for which he was eventually hospitalised. He says that the administrator does not keep him informed about the state of his financial affairs (for example, he was not told of the receipt of the annual senior's allowance), and that it is incorrect to continue to repay the Telstra debt because that debt was waived sometime ago.
The represented person states that he is now stable and that, with medication, he is able to get on with his life in a very competent manner.
The represented person submits that the guardianship and administration orders are no longer needed.
The represented person states that he does not believe a situation would arise which would necessitate him executing an enduring power of guardianship or an enduring power of attorney, and that he would be the first to seek assistance should that become necessary.
His strong view is that he does not need any help with his decisionmaking.
In his final submission, however, the represented person states that he is prepared to execute an enduring power of guardianship and an enduring power of attorney, or, in the alternative, accept his sister and brotherinlaw being appointed as joint limited guardians for medical purposes.

The evidence and submissions of the represented person's sister

The sister submits that the represented person is able to manage his day to day living 'in some aspects', but that he needs assistance with his medication because a characteristic of bipolar disorder is that a person may feel well and mistakenly believe they do not need their medication. The sister states she would be very concerned for that person if the represented person was to live on his own.
The sister states that she can understand how the represented person feels about his current accommodation, and that she tries everything she can to make his life bearable; however, she would be concerned to know where he would be able to live and what assistance would be provided. The sister submits that wherever the represented person lives it must ensure ('guarantee') that his medication is provided.
As regards the represented person's financial affairs, the sister states that when he has manic episodes he has no insight into what he is doing or how he spends his monies. In those instances she says that she finds it impossible to maintain contact with him.
The sister submits that some of the represented person's spending behaviours since the appointment of the Public Trustee have been the result of his 'rebellion' against having someone else manage his finances. The represented person feels that he should have enough money to do things, so, for example, when he decided he wanted a driver's licence, he took driving lessons and sent the account to the Public Trustee '... so really it's a way of him expressing how annoyed he is' (T:23, 17.11.11). The sister submits that whoever is managing the represented person's financial affairs should report to him in some way, and that it would make a difference if the administrator is not a public official.
The sister submits that the represented person needs to have an understanding that his income is limited, and that any administrator needs to give him as much freedom as possible in his day to day spending, but be in a position to say 'no' when his wish to spend is excessive.
The sister states that she and her husband remain very involved with the represented person, and take him on outings, including at their home. She says that they love him dearly and want what is best for him, and are prepared to be appointed joint guardians to make decisions about the represented person's medical needs.
The sister says that she is aware that decisions might need to be made that are contrary to the wishes of the represented person, but that, with the help of her husband, she would be prepared to do so.

The represented person's capacity

The represented person's ability to manage his personal and financial affairs has been the subject of varying assessment and opinion. The Tribunal has the benefit of a number of written assessments, including a neuropsychological assessment from November 2011. In addition oral evidence has been given by the consultant psychiatrists, Dr F (public mental health clinic) and Dr K (the represented person's private psychiatrist).
The written reports in chronological order are as follows:

8 January 2011 (filed with the Tribunal on 9 August 2011) by the care manager at the hostel

The care manager states that the represented person was admitted to the hostel in January 2007 after living in public housing. He has been diagnosed with bipolar disorder. The care manager states that the represented person takes no responsibility for the impact his behaviour has on others and uses the example that he does not pay for taxi services. He is said to leave the accommodation during the day but is very secretive about his movements. The care manager states that the represented person will give a different version of events to different people and will confabulate about his movements. He is said to ignore instructions that diverge from his point of view. The care manager submits that the represented person has no financial management skills, and that he can be dishonest in his financial dealings.

Dr O and Dr H, general practitioners

There are reports purportedly completed by the general practitioners, Dr O and Dr H, dated respectively 22 July 2011 and 27 July 2011, upon which I am not prepared to rely, given that they do not appear to have been completed by the medical practitioners. There is a report from Dr O dated 5 March 2011 which I am prepared to accept. It is a 'To whom it may concern' letter which appears to be directed to the public housing authority. Dr O seeks urgent assistance to find the represented person accommodation in the South Perth, Como, Manning areas to be nearer to medical and general supports. Dr O mentions a hospital admission (psychiatric hospital) but opines that the represented person '... has since made a remarkable recovery and made a courageous attempt to live out on his own again'.

8 August 2011 Dr K, consultant psychiatrist

Dr K writes to the Tribunal advising that the represented person has recently become his patient having seen him three times. He notes that the represented person has been a patient of the general practitioner, Dr O, for 20 years, and he would place considerable weight on Dr O's opinion. He has had discussions with Dr O and the general practitioner is said to be of the view that the represented person ought not to be subject to orders made by the Tribunal. Dr K states that the represented person has made his own way to appointments with him, has at all times been fully appropriate, and notes that the represented person is compliant with his medication. Dr K further notes that the represented person is currently working five days a week (four hours a day) as a telemarketer. Dr K does not detect any evidence of a specific organic brain syndrome (he is aware that the represented person suffers from bipolar disorder), and states that if there are any memory problems they are likely a reflection of 'benign age related phenomena, however[,] I have referred him for a neuropsychological assessment'.

13 August 2011 Dr O, general practitioner

As already noted Dr O has been the represented person's general practitioner for 20 years. It is the view of Dr O that the represented person does not have any impairment of his cognitive ability or mental function, but that his judgment may become impaired if medication is not taken and a relapse of the bipolar disorder occurs.

30 August 2011 Dr F, consultant psychiatrist, Mental Health Service

Dr F states that in the making of his report he has had access to four volumes of medical notes, and has reviewed the represented person on a number of occasions. Dr F describes the represented person as an elderly divorced male with a long history of bipolar affective disorder. He was admitted to hospital in February 2010 with a manic relapse secondary to poor compliance with his medication. He was spending recklessly and had formed plans to return to the United Kingdom after 39 years in Australia.
Dr F states that in July 2010, after the appointment of a guardian and administrator, the represented person experienced a hypomanic episode and was noted to be grandiose and irritable. He tried to join a dating agency, wrote multiple cheques for which he lacked funds to pay, made appointments with multiple specialists which he could not afford, applied for public housing, and gained access to Medicare refunds which he spent and did not forward to the relevant medical practitioners. As a consequence he was admitted as an involuntary patient under the Mental Health Act 1996 (WA) in August 2010. He was discharged after a coordinated meeting and plan from the mental health clinic, his guardian and administrator '... to control his spending and health care seeking behaviour'.
Dr F states that since the August 2010 admission the represented person has been regularly followed up and reviewed by the mental health clinic. He has been reluctant to engage with the clinic and has sought reviews by three private psychiatrists. The represented person has been generally compliant with his medication but has required a regime of close supervision. Staff at the accommodation must take careful precautions and insist he take his medications in front of them. Dr F submits that, in the absence of such close scrutiny, the represented person would be unlikely to persist in adhering to the medication regime. With medication compliance the represented person's mood has remained stable without any suggestion of recent manic features.
Dr F states that the represented person's relapses of bipolar illness have become more frequent in recent years, and when in a manic state, he displays marked grandiosity and poor judgment. When depressed he displays very poor self care to the extent his life has been endangered.
Dr F opines that the more difficult issue is whether there is a presence of frontal lobe cognitive impairment outside of the represented person's episodes of illness. He has been tested in hospital when unwell and this has shown significant frontal deficits, but it has not been clear the extent to which these deficits resolve when his mental state has stabilised. Dr F states that the represented person displays considerable ingenuity and resourcefulness to evade the financial restrictions placed on him, and in doing so displays some intact planning. However, it is the view of Dr F that the represented person continues to demonstrate a marked failure to appreciate the consequences his actions have on his personal circumstances and the wellbeing of others.

30 August 2011 social worker at the represented person's public mental health clinic

The social worker states that she made two appointments to see the represented person in the context of the current review, but that he cancelled both appointments. She says that she spoke with the care staff at the represented person's accommodation and was advised that he '... continues to have problems with responsible management of finances'. The problems included not paying for taxis he used, and telling the taxi drivers to contact staff at the hostel. He also bought gifts he could not afford. The social worker states that the represented person sometimes expresses a wish to leave his accommodation, but opines that he would not be able to cope with independent living, and that he would have difficulty with domestic tasks and complying with his medications. The represented person is visited approximately once a month by a community mental health nurse and mental health case manager.

25 August 2011 Dr H, general practitioner for the last five years

Dr H states that, in his view, the represented person is capable of making reasonable decisions about his personal health care and living situation, but is unsure whether he can make reasonable decisions about his financial affairs. Dr H makes this opinion in the context of a diagnosed bipolar disorder and states that, although the condition fluctuates, the represented person is currently 'fine'.

14 November 2011 Dr CF, clinical neuropsychologist

The referral for this assessment was made by Dr K. Dr CF states that the basis of the referral was that '… determining the least restrictive management strategy would be assisted if a neurodegenerative disorder could be excluded'. The represented person was seen three times for this purpose.
In her assessment Dr CF relies upon information provided by Dr K, medical documentation from the mental health clinic and another hospital, an interview with the represented person and extensive neuropsychological testing.
In the interview Dr CF states that the represented person denied any cognitive difficulties, that he considered himself to be 'above standard' and able to deal with everyday life in a competent way. He admitted to having been hospitalised, he says about 18 months ago, because his activities needed 'curtailing'. He was able to state that the medical team at the mental health clinic is of the view there has been a significant decline in mental functioning, but countered by saying that other health professions feel that his cognitive abilities are consistent with his age. The represented person told Dr CF that the decision to move to his current accommodation had been the biggest mistake of his life, and that he could still manage independently at home. He said he was seeking alternative accommodation and had been on the public housing waitlist for 12 months. He stated he had recently passed a driving test in September 2011.
The testing undertaken by Dr CF concerned attention, working memory and speed of processing; verbal abilities and language skills; perception and visuospatial ability; new learning and memory and executive functioning.
Dr CF concludes that the testing reveals significant cognitive compromise (overall mild slowing with some variability; reduced memory performances but with highly variable results; impaired object naming, poor semantic fluency and significant difficulties identifying semantic associations and significant executive dysfunction). The nature and extent of the cognitive difficulties appear to exceed that which would be expected given his 'complex medical and psychiatric background'. The test results are suggestive of an additional underlying disease process that Dr CF opines is most consistent with a diagnosis of dementia, likely of the Alzheimer's type.

Dr CF states that despite the concerns raised by the testing results, the represented person was able to provide an adequate amount of information and some reasoning regarding a number of areas of his life.
Dr CF submits that the represented person's understanding of his 'known' finances and day to day expenses is reasonable. Dr CF is of the view that the represented person '… is able to cope with his day to day finances but it is likely that he will require assistance with more complex financial decisions and management'. The represented person feels aggrieved that he has not been informed about many aspects of his finances since the appointment of the Public Trustee. Dr CF submits that an administrator 'might be appropriate', but that the represented person is able to contribute more to his financial management than is currently the case.
Dr CF states that the represented person has an adequate understanding about his health needs and living arrangements. He is reported to have said that he regularly attends medical reviews, and that he understands the importance of the need for medications. He disputes he has not been compliant in the past stating that his medications did not 'register' in his blood screens.
Dr CF says that the represented person understands that his meals and daily household tasks are largely undertaken by staff at his accommodation. He believes, however, that he can live in independent accommodation, although he is not clear on what sort of assistance he requires other than he could do most of the housework on his own. Dr CF states that she is concerned about the represented person's ability to do this safely given his physical limitations. He is reported to have said he would be willing to have an assessment of his support needs undertaken.
The overall assessment of Dr CF is that, although the represented person is clearly able to state his wishes and desires and provide some reasoning for his choices:
… I would be concerned about his ability to make more complex decisions involving lifestyle, medical treatment and financial matters where he will be required to take in and integrate a considerable amount of information and weigh up the risks and benefits to come to a truly informed decision. As such, consideration of a substitute decision[]maker would be warranted.
Dr CF assesses the represented person as capable of executing an enduring power of guardianship and an enduring power of attorney with some support by which she means:
… it would be important to present information to [the represented person] in a slow and concise manner, using simple language as well as allow him time to review it, rather than relying on his memory. He may need some assistance in being directed to the relevant information in the text.
Dr CF recommends a neuropsychological review in 12 months.

The oral evidence of Dr K (in light of the neuropsychological assessment)

Dr K submits that there are three interlocking issues relating to the represented person's current mental state. Firstly, he has a very long history of a bipolar disorder (manic depression); secondly, there is a degree of cognitive impairment which is likely explained by the presence of a dementia, although a formal diagnosis of dementia has not been made; and, thirdly, there is the issue of the represented person's insight into his mental health. Dr K questions the selective information that the represented person has given him which places the represented person in the best light. Dr K opines that this demonstrates 'a bit of dysfunction' on the part of the represented person.
Dr K submits that when a person presents with some cognitive impairment they are not aware of the degree of that impairment.
Dr K submits that some of the results of the neuropsychological testing (on which he places a great deal of weight) are, on their own, disconcerting, and, in responding to a question by the represented person, asserts that such testing together with a social history is far more sensitive than CT scans in quantifying changes that can be described as a dementia.
Dr K states that the prognosis of the underlying morbid process is unknown; there is an expectation that it will not get better but it is not known how quickly it will progress. He states there is also a relationship between chronic psychiatric illnesses and cognitive changes.
Dr K states that the represented person presents superficially well, but would question his judgment on a number of matters, citing the example of the represented person's relationship with the mental health clinic. He suggests that the best way of dealing with the clinic would be for the represented person to act cooperatively and to demonstrate at every opportunity that he is functioning well rather than avoiding contact, as has occurred.
Dr K is of the view that the represented person is currently capable of executing an enduring power of guardianship and an enduring power of attorney. The aim, he submits, is to preserve as much of the represented person's social functioning and independence as is possible.
In a letter to the represented person's solicitor dated 7 December 2011 (filed with the Tribunal on 19 December 2011), Dr K states that the evidence is that the represented person does have a form of dementia but that presently his functioning is relatively intact. Dr K recommends a further neuropsychological review in 12 months.
Dr K reiterates his opinion that the represented person has the capacity to enter into an enduring power of attorney and an enduring power of guardianship.

The oral evidence of Dr F (in light of the neuropsychological assessment)

Dr F states that he agrees with Dr K that the represented person's situation is complex. He says that the records show a number of episodes of his illness in the last five years; in 2005, 2006, 2007, and two episodes in 2010. In noting the current strict controls that are in place to ensure the represented person complies with his medication regime (to the point where he is actually observed while taking his medication), Dr F states that he is very unsure whether compliance would continue without those controls.
Dr F submits that the neuropsychological assessment sustains the point that the represented person has significant cognitive dysfunction which has a functional impact. He submits that there has been a general decline in the represented person's function in the last 10 years from relative stability up to 2007, and after that, the represented person requiring a form of supported accommodation.
In the context of the assessment by Dr CF that the represented person has significant executive dysfunction, Dr F states that executive function is a higher cognitive function, a coordinating and planning ability as opposed to simple memory or language functions. It has to do with a person's ability to use those skills in their daily lives.
Dr F accepts that a community treatment order under the Mental Health Act 1996 (WA) might be able to deal with the represented person's psychiatric needs, but would not be effective in dealing with his general medical or accommodation needs. Dr F states that recently he received contact from a pain specialist who was proposing to prescribe an antidepressant for the represented person, but was not fully aware of the represented person's psychiatric issues, such that the medication would have precipitated a relapse of his illness. Dr F is of the view that the guardian has been active in limiting the number of clinicians who are involved in the represented person's care, which is an issue a community treatment order could not address.
Dr F submits that he would not support the represented person's sister being appointed guardian, as he does not believe that she would be able to set the appropriate limits and would be coerced by him.
The represented person questions the ability of Dr F to express opinions on his mental state, as he put it, '… purely from spending three quarters of an hour with me' (T:18, 17.11.11).

The decision of the Tribunal

I am satisfied, on the evidence, that the represented person is someone who could continue to be under guardianship and administration orders.
The evidence shows that the represented person is in mental decline, likely as a consequence of an emerging dementia. This is in addition to his long history of the mental illness, bipolar disorder, for which he is prone to relapse if not under strict medical control. Dr K also raises the prospect of a relationship between the represented person's chronic longstanding mental illness and cognitive changes.
There is no dispute amongst the specialist practitioners, whose evidence is before the Tribunal, that the represented person now has a degree of cognitive impairment. I accept the evidence of Dr CF, Dr K and Dr F in this regard. I prefer their evidence over the evidence of the general practitioners, Dr O and Dr H who, when completing their reports, did not have the benefit of the neuropsychological assessment of Dr CF.
A critical question to be determined is to what extent the cognitive impairment impacts on the represented person's ability to function on a day to day basis in the words of the GA Act, whether he is capable of looking after his own health and safety, whether he is in need of oversight and care or whether he is able to make reasonable judgments about his personal and financial affairs (s 43(1)(b) and s 64(1)(a)).
The evidence of the guardian is that the represented person is able to exercise choice and freedom of movement when interacting with the community on a daily basis. To that extent he is able to function in that he does not appear to need assistance to ensure that he remains relatively safe in the community. It is not clearly known what the represented person does during the day; parttime work has been mentioned and, from the evidence, it would appear that he has many and regular medical appointments.
This degree of ability is consistent with the opinion of Dr K that the represented person's functioning is relatively intact. For example, he is able to make his own way to his various medical appointments.
In my view, it is not at the level of the daily interactions that the represented person's cognitive deficits currently manifest, although there is some evidence to the contrary; for example, the evidence of the hostel care manager that he will use taxis and wrongly direct the drivers to the hostel for payment.
I am satisfied on the evidence that the represented person's cognitive deficits have their greatest impact in the higher functioning required to plan, organise and, importantly, to carry out what is required for significant matters, such as the accommodation that is best suited to his needs, his general support needs and his very important medical needs. This is consistent with the deficit in executive functioning found in the testing undertaken by Dr CF and also described by Dr F.
The deficit in executive functioning manifests principally in the following ways.
The represented person has lived at the hostel for four years. He states that the decision to move to the hostel was the worst that was made in his life. The evidence shows that he has been able to initiate some action to change his accommodation, but falls short of concluding the process. For example, he has made many requests to live in independent units operated by the owner of the hostel, but has declined to meet with the guardian to discuss this option. This, in my view, is analogous to the way the represented person relates to his mental health team and about which Dr K questions his judgment, because the represented person will not cooperate and demonstrate the abilities he says he possesses.
A further example is the represented person's attempt to obtain public housing. He had previously listed himself on the public housing waitlist but when the decision was made by the public housing authority to remove him from the waitlist because of his rejection of properties offered, he appealed but did not follow through with the appeal. He seems still to believe that he will soon obtain public housing in the area where he used to live, even though he is not currently on the waitlist.
The represented person has not been able to clearly articulate the care support he needs in respect of his physical limitations. I agree with the guardian and Dr CF in this regard. His evidence has varied but he essentially holds the view that he could undertake the bulk of the domestic chores that are currently undertaken by hostel staff. He has said to Dr CF that he would be willing to have an assessment of his support needs, and has made vague mention of previous assistance from Silver Chain, but has not, for example, made a similar commitment or proposal to the guardian in the 18 months since her appointment. I am satisfied that the represented person lacks insight into his capacity to live without the domestic support he currently receives.
The represented person's mental health needs, in particular, the medication for his bipolar disorder, are of special importance to his wellbeing. I accept the evidence of Dr F, derived in part from the represented person's extensive medical records, of the history of the represented person's generally poor compliance with medication prior to his most recent hospital admission in August 2010. This is in contrast to what Dr CF states the represented person told her in her assessment, which is that he has been compliant in the past and that his medications did not register in his blood screens. I do not accept the evidence of the represented person, and this, in my view, is consistent with what Dr K and the hostel care manager assert, namely, that the represented person will be selective in the information he gives to people, to ensure he is shown in the best light (and which Dr K describes as a dysfunction). Dr F states that this shows some degree of planning ability in itself, but, more importantly, in my view, is that it demonstrates a lack of insight into the importance of compliance with his medication to ensure stability of his psychiatric health. In that regard I also accept the evidence of Dr F that the more recent compliance by the represented person with his medication is not voluntary, but rather, is because the taking of the medication is intensively supervised. This view is supported by the guardian and hostel care manager, and by the represented person's sister whose main concern is that his medications must be supervised.
I accept that the coordination of the represented person's medical care is extremely difficult because he has a functional ability to initiate and attend medical appointments, however, what the evidence shows is that the represented person does not ensure his medical care is integrated, rather, he seeks out numerous practitioners in the hope they will agree with his view of his medical conditions and health needs. This can have serious consequences, as the example given Dr F demonstrates; that the represented person was prescribed an antidepressant by a pain specialist that would have interfered with the treatment for his psychiatric condition.
I am therefore satisfied that the represented person is unable to make reasonable judgments about his ongoing health care.
I accept that the represented person is extremely oppositional to anyone who would presume to make decisions for him. The represented person's sister makes comment about this in respect to why he might incur debt, for example, (see below). In my view, however, simple opposition does not fully explain the represented person's actions and behaviours. They are better explained by reference to his diagnosed cognitive impairments, which, according to Dr K and Dr F, are the product of an emerging illness (likely a dementia). The prognosis for that condition is that it is progressive, but that the speed at which the represented person will decline is not known.
In the three areas of the represented person's personal life that I have discussed, those of accommodation, support services and medical treatment, I am satisfied, on the evidence, that the represented person is unable to make reasonable judgments when decisions need to be made (s 43(1)(b)(ii) of the GA Act). I am further satisfied that in those mentioned areas, the represented person is in need of oversight (monitoring) and care in the interests of his own health and safety (s 43(1)(b)(iii) of the GA Act).
I conclude that the represented person is in need of a guardian (s 43(1)(c) of the GA Act). The represented person's oppositional behaviour prevents informal arrangements, such as the support of his sister and the hostel staff, from providing the necessary oversight and protection that, in my view, he requires.
The represented person has been assessed by Dr K and Dr CF as being capable of executing an enduring power of guardianship. Given my finding that he is in need of a guardian, I do not need to decide this matter. However, even if I accept that he is capable of executing an enduring power of guardianship, that arrangement too, in my view, would not be effective. That is because it is highly unlikely that the represented person would accept the authority of an enduring guardian if there was an attempt to exercise it, given his strong oppositional behaviour to any authority.
It is my view that, in the current circumstances where the represented person retains an ability to articulate his own views and wishes to others but lacks insight into his cognitive deficits, the authority of a guardianship order carries more weight when dealing with service providers and medical practitioners than would an instrument of enduring guardianship.
The sister and brotherinlaw have proposed themselves as joint guardians to deal with the represented person's medical needs. Although the represented person has said he does not need any help in decisionmaking, he has submitted (I suspect as a defensive position) that he would be willing, when necessary, to appoint his sister and brotherinlaw as joint enduring guardians for medical purposes. I accept this as a wish of the represented person to have anyone but a public authority in a position of authority. The only reservation I have in appointing the sister is the evidence of the Public Advocate that she might effectively be bullied by the represented person, and the sister's own evidence that, when the represented person has a relapse of his mental illness, his behaviours are such that she tends to withdraw from contact. I accept that, by having a joint appointment with the brotherinlaw, this is less likely to happen.
Where it is at all possible to marry the represented person's wishes with my view of his best interests, I should do so. I am therefore prepared, on balance, to appoint the sister and brotherinlaw jointly to make the necessary medical decisions for the represented person (s 44 of the GA Act). The guardians will need to keep a close watch on the represented person's medical appointments and number of medical practitioners he accesses, as well as having strong links with the relevant mental health clinic to ensure mental health services are maintained.
The limits of the appointment of the sister and brotherinlaw means that I must reappoint the Public Advocate as guardian in those other areas I have identified as in need; the decisions about the represented person's accommodation and support services (s 44(5) of the GA Act).
As to the question of the management of the represented person's financial affairs, I am satisfied for the purposes of the GA Act that he has a mental disability as defined, that being his mental illness (psychiatric condition) and emerging dementia (s 3 and s 64(1)(a) of the GA Act).
The critical questions are whether by reason of that mental disability the represented person is unable to make reasonable judgments about all, or any part, of his estate, and whether he is need of an administrator (s 64(1)(a) and s 64(1)(b) of the GA Act).

I accept that the represented person's estate is small, although he has debts somewhat in excess of his cash funds. His main expense is his accommodation cost which represents about 68% of his income.
However, the size of the represented person's estate is not critical to the questions of judgment and need in this case because those questions cannot, in my view, be divorced from the reasons I have given for the ongoing appointment of a guardian, and the significant oppositional behaviour exhibited by the represented person.
I have found that the represented person is unable to make reasonable judgments about his accommodation, medical needs and support (care) services. All of these matters are attended by financial costs.
The represented person does not approve of his current supported accommodation, even though it may be the most suitable for him at this time. Were he in control of his finances, I could not be confident that he would pay for that accommodation given his impaired cognition (an outcome of which is his lack of insight into his needs) overlaid by his oppositional temperament. I also accept the evidence of the guardian that the represented person has unrealistic expectations about his ability to afford private health cover and private medical specialists. Finally, were the guardian to change the represented person's accommodation to one where care services need to be separately purchased, in my view, he would not pay for those services, because on his evidence those services are not required.
I am therefore satisfied on all the evidence that the represented person is unable to make reasonable judgments about how his estate should be maintained and his very limited finances managed, and that he is in need of an administrator (s 64(1)(a) and s 64(1)(b) of the GA Act). For the same reasons I have concluded that an enduring power of guardianship would not be effective, I also find that an enduring power of attorney is not the appropriate authority to manage the represented person's finances.
I therefore have no practical alternative but to the reappointment of the Public Trustee as the represented person's administrator.
I accept that the represented person takes a keen interest in his financial affairs and is aggrieved at what he sees as a lack of information he receives from the administrator. I will therefore direct the administrator to provide the represented person, on a monthly basis, with a statement of the transactions undertaken on his estate, as well as a statement of his assets and liabilities.
Given my findings on the represented person's capacity, in particular, that he now likely has a progressive dementia, I see no need to make the orders for guardianship and administration any less than the maximum period allowed under the GA Act, that being five years (s 84 of the GA Act).

Orders

Guardianship

1.The order of 25 May 2010 is revoked and an order in the following terms be substituted for it:
(i)JC (sister) and JC (brotherinlaw) be appointed joint limited guardians with the following function:
a.subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person.

2.The Public Advocate be appointed limited guardian with the following functions:
(i)To decide where the represented person is to live, whether permanently or temporarily.
(ii)To decide with whom the represented person is to live.
(iii)To determine the services to which the represented person should have access.

3.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
4.The Tribunal will commence a review of this order by 5 April 2017.

Administration

1.The order of 19 May 2010 is amended so that it now reads:
(i)The Public Trustee is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
(ii)The administrator is directed to provide the represented person, on a monthly basis, with a statement of the transactions undertaken on his estate, as well as a statement of his assets and liabilities.

2.The Tribunal will commence a review of this order by 5 April 2017.

I certify that this and the preceding [126] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER