SA - [2010] WASAT 186

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: SA [2010] WASAT 186

MEMBER: MS H LESLIE (SENIOR SESSIONAL MEMBER)

HEARD: 6 SEPTEMBER 2010

DELIVERED : 6 DECEMBER 2010

FILE NO/S: GAA 947 of 2010
GAA 949 of 2010
GAA 960 of 2010
GAA 1628 of 2010

BETWEEN: SA
Represented Person

Catchwords:

Guardianship and Administration - Enduring power of attorney - Person with psychiatric disorder - Need for guardianship - Need for administration - Recognition of South Australian enduring power of attorney - Whether matter res judicata - Revocation of Western Australian enduring power of attorney - Relationship difficulties - Wishes of proposed represented person

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2)(b), s 17A, s 40(1), s 43(1)(b), s 64(1), s 104A(1), s 109(1)(c)
Mental Health Act 1996 (WA)

Result:

Public Trustee is appointed plenary administrator for 12 months
Western Australian enduring power of attorney is revoked
Applications for guardianship and for recognition of the South Australian enduring power of attorney are dismissed

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The proposed represented person, SA, was a 36yearold man with a psychiatric diagnosis who previously resided in South Australia. He resides in his own rental accommodation.
The Tribunal had before it an application from SA's sister for guardianship. The Tribunal took the view that SA was competent to make decisions regarding his accommodation, his medical care and any services that he required and that, although in need of some support and assistance, these matters could be negotiated with him by his doctors and those supporting him.
The Tribunal refused to recognise a South Australian enduring power of attorney made in favour of SA's parents on the basis that the recognition of the enduring power of attorney had already been determined by the Tribunal's Full Board and that, if the matter was not already res judicata, there were insufficient grounds made out or new circumstances introduced to warrant opening the matter up again.
The Tribunal appointed the Public Trustee as plenary administrator of SA's finances in circumstances where the evidence supported the conclusion that arrangements need to be put in place formally to secure his accommodation, to ensure that he had access to necessaries, that funds were budgeted to meet outgoings, and to ensure that SA had access to an appropriate and affordable amount of money for his personal expenditure. His position, with respect to any ongoing litigation, needed to be checked and appropriate action to secure his position and deal with matters in his best interests needed to be taken if required. The Tribunal formed the view that informal supports were insufficient and that an administrator independent of the family was needed and that only a short order was warranted.
The Tribunal revoked a Western Australian enduring power of attorney in favour of SA's estranged wife on the basis that she no longer had any significant role in his life, was not in fact managing his finances and was not an appropriate attorney.

Reasons for orders

Applications

The Tribunal had before it the following applications:
Firstly, an application under s 109(1)(c) of the Guardianship and Administration Act1990 (WA) (GA Act) by the proposed represented person's (SA) mother, JA, filed 1 April 2010 for the revocation of a Western Australian enduring power of attorney made by SA on 21 December 2007 in favour of BA, who is SA's wife (second WA EPA). The application is made on the basis that SA and BA are now separated and that it is no longer appropriate for the second WA EPA to operate.
Secondly, an application under s 104A(1) of the GA Act by JA for recognition of a South Australian enduring power of attorney made by SA in South Australia on 27 May 1997 in favour of JA and SA's father, AA, (SA EPA).
Thirdly, an application under s 40(1) of the GA Act filed 6 April 2010 by SA's sister, YA, for the appointment of a guardian for SA.
Fourthly, an application filed 16 June 2010 under s 40(1) of the GA Act by EL, a community mental health nurse and SA's mental health case manager, for the appointment of the Public Trustee as administrator for SA.

History

SA is a 36yearold man with a psychiatric diagnosis who previously resided in South Australia. He resides in his own rental accommodation. His sister, YA, and another brother work and live locally. His father, AA, appears to have returned to live in Turkey. His mother, JA, appears to have a property in South Australia and to move between there, Western Australia and Turkey.
There appears at some point in the past to have been an administration order put in place in South Australian allowing the Public Trustee in South Australia to manage SA's affairs though this order appears to have been revoked on 30 March 2000. It appears to have been superseded by the SA EPA (although the interplay between the two between 1997 and 2000 is unclear).
It appears that on 17 July 2007, SA made a Western Australian enduring power of attorney in favour of JA and AA (first WA EPA). It appears to be common ground that this has been revoked, either expressly or implicitly, by the making of the second WA EPA five months later.
The family appears to have been involved in multiple pieces of litigation in the Supreme Court of Western Australia, the Court of Appeal and the Family Court in recent years. In 2007, The Public Advocate was requested by the Western Australian Court of Appeal to look into whether a guardianship application should be made for SA in view of his apparent involvement in litigation in which JA was involved. In view of the inability of the Public Advocate to obtain determinative capacity information at the time, the guardianship issue was not progressed.
JA has previously sought recognition of the SA EPA in Western Australia. On 4 September 2008, that application was refused by Senior Member Toohey. The transcript of that hearing provides instructive background information. In summary, the decision was based on SA's likely competency to manage his own affairs, his likely revocation of the SA EPA and matters relating to the history and family dynamics. JA sought review of that decision under s 17A of the GA Act and on 4 February 2009, a Full Board of the Tribunal chaired by Barker J confirmed the reasoning and decision of Senior Member Toohey refusing to recognise the SA EPA in Western Australia. The Full Board also refused to make an administration order. The transcript of that hearing also provides instructive background.

Prehearing

In the week prior to the hearing, JA sought to have the applications adjourned on the basis that SA was unhappy with his current treatment team and was looking for alternative psychiatric treatment and advice. As this was not confirmed by SA, his legal advisers or the treating team, the matter remained in the list on the basis that it could be adjourned further if the circumstances warranted.
Mid-morning on the day of the (2 pm) hearing on 6 September 2010, the Tribunal received a fax, purportedly on behalf of SA's family, and apparently signed by JA and YA, indicating that the family would not be attending the hearing and noting their intention to 'abstain' until further psychiatric information was available. On the morning of the hearing, the Tribunal also received a separate letter from YA (faxed contemporaneously from the same fax number as the aforementioned fax) indicating that 'I am unable to attend the hearing today at 2pm' and attaching a general purpose one line report from a general practitioner dated 3 September 2009 addressed 'To Whom it May Concern' and saying that YA 'is unfit to work from 3/9/10 - 6/9/10 inclusive'.
It is understood that in the week before the hearing, there was a meeting including SA, JA (and perhaps other family members) and the mental health team members, the outcome of which JA was not happy with. It appears that the Public Advocate's representative, GC, spoke with JA and with her other son (SA's brother) and that both were encouraged to come to the hearing.
The Public Advocate's representative also spoke with SA and understood that he was planning to attend and that he knew how to get to the Tribunal. It is noted that he has attended other hearings. It appears that he would likely attend independently of his family members.
Approximately a month prior to the hearing on 2 August 2010, the Tribunal also received an indication by letter that YA did not in fact wish to proceed with the application for guardianship on the basis that, with increased involvement of JA as carer, no order was needed. It is noted from the records that there had in the past been a significantly deteriorated relationship between SA and the members of his family, including violence restraining orders (VROs) - taken out against JA and AA at SA's instigation - but that these had ended. The Fremantle Magistrates' Court orders show orders made 14 October 2008 as having been cancelled on the application of JA effective as at 22 July 2010, thereby permitting increased contact by the mother, though, as will be referred to in these reasons, it is noted that there appears to be an issue about SA's wishes regarding his mother's involvement. It is not clear what role, if any, SA played in the proceedings to cancel the VROs.

Hearing

The hearing was attended in person by the Public Advocate's representative, GC, (who had also provided a written report) and by NW, a solicitor from the Mental Health Law Centre (which has been assisting SA with various matters over a period of time). NW attended almost as a courtesy as she indicated that, although acting for SA, she had no uptodate instructions from SA regarding the hearing. EL and Dr SS, psychiatric registrar, both from the Fremantle Mental Health team, participated in the hearing by separate telephone links. SA, though expected by GC to attend, did not in fact attend the hearing despite his comments to GC in the previous week. Dr SS seemed unsurprised by this given the potential conflict with the family, the likely distress for SA and the effort that coming from Fremantle would require of him; she indicated that SA says a lot of things but sometimes does not act upon them because of his illness. It seemed that his attendance would not be contingent on his family's attendance.

Capacity

The Tribunal had before it the reports lodged in relation to the applications from EL, dated 10 May 2010, and Dr SS, dated 27 April 2010. Those reports paint a picture of a person unable to manage his financial affairs but able to make decisions relating to his personal health care and his living situation.
In her report, Dr SS confirms that SA has impairment in his cognitive ability or mental function and refers to a now chronic condition of paranoid schizophrenia first diagnosed in 2001. She describes his level of impairment and mental state as 'fluctuating' depending upon medication compliance, psychosocial stressors and drug use. It is noted that she saw him on the day of the report. In the report, she opines that with support and monitoring he is capable of making decisions relating to his personal health care and his living situation. She, however, expresses the view that he is incapable of making reasonable decisions in relation to financial affairs and comments that '[he has] significant problems with budgeting, has ongoing debts at Cash Converters'. She is unsure whether he has the capacity to make a new enduring power of attorney (EPA) and notes that SA could make a significant contribution to any hearing. She expressed the view that 'if a new EPA [sic] is appointed, it would be recommended not to have someone from the family'.
In her report, EL refers to the above diagnosis and reports it first being made in Turkey when SA was 18 and serving in the military. She refers to SA being 'at times … perplexed and thought blocking'. She states '[SA] has difficulty managing day to day budgeting; [SA] is vulnerable to been [sic] taken advantage of; and [sic] independent unbiased institution which would protect [SA] from poor judgment of financial issues and others who wish to have a claim would be in [SA's] best interests … in my opinion the administrator need [sic] to have plenary powers to protect [SA] re financial concerns'. She refers also to the support given by SA's wife when they were together and issues with the rest of the family, particularly JA.
EL confirmed in evidence that as at the date of the hearing, her view continued that SA could not manage his financial affairs. Her evidence is that prior to their separation (understood to be in about April 2008), BA managed all the household finances and tasks, and was in reality SA's carer. EL indicated that at the present time, a number of matters were managed by direct debit payments put in place informally by the team with SA's agreement (rent, utilities, etc) but that there continued to be a concern about the use of the balance of funds. She commented that 'he runs out of money regularly'. She expressed concern about inadequate shopping and the lack of food in the house, the proportion of monies spent on cigarettes (and SA's sole focus on this use of funds) and possibly marijuana, inadequate cleaning and resources available for the payment for cleaning and other support services, the seemingly constant 'hocking' by SA of goods with Cash Converters to gain access to cash. It seems at the time of the hearing, SA's mobile phone and other goods were in hock. There seemed to be a hint of concern about the security of SA's tenancy if matters such as regular cleaning support services could not be reliably guaranteed. She disputed that JA had resolved all issues regarding SA's home phone connection, his concession card and his passport. The Tribunal had before it a letter from JA listing a series of matters that she had recently attended to on SA's behalf. EL disputed that JA was attending to all things in a satisfactory way for SA. She commented on the lack of observable evidence that the family was consistently assisting SA adequately with food and other household supplies and goods, and general domestic tasks and his personal care as alleged by them. She also confirmed that, despite a suggestion to the contrary in the information provided by YA, JA had not in fact moved in with SA to care for him.
Dr SS confirmed that she had known SA for about two years (though it is noted from her report that the period may in fact be longer) and that in her view, the situation had not changed much since her April 2010 report. She confirmed her view that there were significant concerns about SA's budgeting and, for example, his capacity to understand the financial downside to the hocking arrangements; that his focus was shortterm access to cash. She mentioned the spending on cigarettes to the apparent detriment of essentials. Her view was that SA's mental illness has an impact on his ability to make proper decisions. Dr SS confirmed that during all that time she had known SA, his relationship with his family, especially his mother, has been quite difficult at times. His mental health has been affected by these matters. He has not wanted the team to make contact with the family and, other than a recent meeting, the team has not had contact with the family for a long time.
In her application for guardianship, YA states with respect to capacity that SA is 'difficult to engage in a rational conversation with'; 'needs constent [sic] assistence [sic] in most decisions affecting his daily life'; 'not capable of responding rationally, becomes stressed and agitated'; 'unable to cope alone'; 'not capable of coping without assistance and constant reassurance is essential for his mental condition to improve' and that a guardian is needed to make decisions about accommodation, hygiene, medical needs, cleaning of his unit and access to services and maintenance of regular contact with the family both in Australia and overseas. Describing herself as SA's main carer, YA also completed a 'carer's report' in which she states with respect to capacity that SA suffers from thought disorders, remains forgetful and has shown delayed responses. She makes other comments (inter alia) indicating that he can manage only some aspect of his affairs and that he needs 'constant regular supervision'. She states that he is able to manage 'his personal day to day expenses' but 'is not able to make decisions on large amounts'.
In her application for the revocation of the second WA EPA, JA states '[SA] is unable to make any reasonable decisions and he needs constant reassurance with no stress or trauma ... '; in relation to the application itself, she states that she 'cannot discuss matters with [SA] given his state of mental health'; she states his 'condition fluctuates. He is unable to make rational decisions, remains forgetful, displays delayed responses … has thought disorder, abnormal facial movements, inappropriate laughter, bizarre ... gestures, some slow speech … '; she goes on to state that SA is 'in need of assistance with daily living, his disability prevents him caring for himself adequately … ' and that he is 'currently still agitated and remains confused'.
In her application for the recognition of the SA EPA, JA states that SA 'requires assistance in most areas in order to cope with daily living'. It seems implicit in her making the application that she feels SA's financial affairs cannot be attended to adequately by him even with informal assistance.
It is of note, however, that, seemingly in answer to the suggested involvement of the Public Trustee, in their faxed letter of 6 September 2010 to the Tribunal, JA and YA state 'the fact remains that [SA] does not have a decision-making disability'. They, however, also refer to the 'care and personal assistance he so desperately needs'.
As mentioned above, the Tribunal also had before it a letter from JA listing a series of matters that she claims she had recently been required to attend to on SA's behalf. The context of the letter appears to be that whilst SA needs assistance, she can manage to provide all the assistance that SA requires and that an administration order in favour of the Public Trustee is not needed. (As mentioned, EL disputed that JA was attending to all things in a satisfactory way for SA.)
In relation to capacity specifically in relation to guardianship-type matters, YA was not present to speak to the guardianship application. The indications are that she did not in fact wish to pursue it in view of the support said by her to be being given to SA by JA in the time since the lifting of the VROs. The application was, however, before the Tribunal and it is noted that the level of support being provided by the family and SA's attitude to particularly JA's filling of the role was in issue.
The evidence of those participating in the hearing was that SA's accommodation is stable and there is no suggestion that change is desired by him or others at this time. Dr SS was of the view that, though in need of some supports, SA is quite able to decide where he wants to live and in what kind of circumstance.
The evidence of EL was that the mental health team continues to encourage SA to accept external and domestic support services. Some of these he takes up, others not; and this varies from time to time. Dr SS's evidence was that SA 'is capable of making … decisions [in these matters] but he needs some support with that'. EL and Dr SS were both of the view that their engagement with SA is such that these matters should continue to be negotiated by them informally and that, because the issue was largely one of SA's willingness to participate/accept services, the making of a guardianship order would not add anything to the provision of services issue. Notwithstanding the claims by JA to the contrary (to which I will refer), the view seemed to be that the working relationship between the team members and SA was constructive and that he wished to continue to engage with them and to have them assist him in their respective roles.

In relation to decisions about his medical care, Dr SS's evidence was that, in view of the matters raised by JA about a change of doctor, there had been a specific discussion with SA about that. It seems that JA had taken him to see another general practitioner with a view to a referral for private psychiatry. EL expressed concerns about SA's level of anxiety and sense of powerlessness when his family are involved; that he 'can be easily led … just to sort of appease, I think'. Dr SS's evidence is that '[SA] told us that he's quite happy to stay with us and to continue to see myself as the treating doctor and to continue with [EL] as case manager for support'; that he didn't have any wish to change. She confirmed that he is presently treated as a voluntary patient (and has been for a long time); that subject to any undue interference from elsewhere, she felt able to continue to negotiate his treatment with him and that this has worked in a satisfactory way to this point. She noted that after the apparently somewhat unsatisfactory family meeting in the week before the hearing, after the family members had left, SA returned to the clinic and 'signed another paper that he doesn't want any involvement from the family in the treatment any more'. She confirmed that he was distressed but was able to act for himself and that he confirmed that he did not wish to go to another general practitioner and private psychiatrist as suggested by his mother; that that was clearly not what he wanted and that he confirmed 'I am happy here and I will come back here'. Her view was that he could make that judgment for himself. She felt that there was little that a guardian could add in the circumstances. It seems therefore that, notwithstanding a level of attempted interference or involvement by JA and perhaps other family members, the treating team feels able to manage SA without a guardianship order.
There was no evidence of any other areas - education, training, work options, etc - that comes within the purview of guardianship that was relevant for SA. In any event, EL indicated that the treating team could look, refer and outsource to cover any identified need, and would promote SA going to such services and felt able to negotiate that with him, subject no doubt to his level of engagement and willingness from time to time.

OPA's view on capacity

GC had the opportunity to meet with SA and discuss relevant matters in the days prior to the hearing. From his description of the discussions, they appear to have been frank and reasonably extensive. He also had contact with other parties involved.
Having assessed the situation, in his report, GC supported the proposition that, given the available medical evidence, it would be open to the Tribunal to make an administration order. He referred to the potential for guardianshiptype issues to be managed less restrictively. The recommendations in the report as to the orders which the Tribunal might make reflected this.
Following the hearing of further evidence and the airing of matters in the hearing, GC's recommendations based on capacity were unchanged and, notwithstanding some discussion about whether SA was a person 'in need of oversight care or control', GC appeared to remain of the view that an order should not be made.

Findings regarding capacity

The law relating to capacity is clearly set out in s 4(2)(b), s 43(1)(b) and s 64(1)of the GA Act.
In the view of the Tribunal, in relation to the issue of guardianship, the presumption of capacity has not been displaced nor is there sufficient evidence to demonstrate on the balance of probabilities that SA is in need of a greater degree of oversight, care or control in the interests of his own health and safety than he is presently sourcing and negotiating for himself with his treatment team.
He may need support. He may need guidance. He may need on occasions to be persuaded and convinced to accept assistance. The same could be said of a great proportion of the competent public. In the view of the Tribunal, SA is capable of making his own decisions in relation to all matters that are currently relevant to him that might come within the purview of a guardianship order, namely accommodation, treatment and health care, and access to services. In making that finding, the Tribunal accepts the evidence of Dr SS and EL. It is noted that CG, on behalf of the Public Advocate, appears to support that position.
Even if the Tribunal is wrong about this, it is satisfied that the relationship between SA and the treating team, particularly Dr SS and EL, is such that any issues relating to accommodation and services could be negotiated informally to meet SA's needs; in other words, that there is a less restrictive alternative to the making of a guardianship order to cover these matters. In relation to his medical care, SA has, for a long time, been treated as a voluntary patient under the Mental Health Act 1996 (WA) (MH Act). He has regular contact with the treating team. In the view of the Tribunal, his psychiatric needs can also be met less restrictively by the negotiation of his treatment between him and the team members and, if his ability to play an informed role in this deteriorates to a point where his consent is an issue, he could be treated involuntarily under the MH Act. YA has mentioned that SA suffers from asthma for which he needs a puffer but other than that, no significant medical or health care conditions that might require ongoing treatment that is beyond SA's understanding have been identified.
In the view of the Tribunal, in relation to his financial affairs, the presumption of capacity has been displaced and there is sufficient evidence to support a finding that SA is unable, by reason of his mental illness, to make reasonable judgments in respect of matters relating to his estate or to manage his financial affairs and that he needs to have someone take on that role for him. In making that finding, the Tribunal accepts the evidence of Dr SS and EL about the difficulties into which SA gets regarding his money; the problems with budgeting and making funds stretch to meet the need for necessaries across the pension fortnight; the problems with hocking goods for cash; and the focus of the use of funds for non-essentials often to his potential detriment. It is accepted that he is often short of money and of food despite, it seems, the best informal efforts of many. If indeed efforts have been made by the family, and there is an issue about the extent of this, then these have been insufficient to resolve the issues identified. It does appear that, with the assistance of the treating team, certain informal arrangements have been put in place with SA's agreement for some payments to be made directly by Centrelink from SA's pension, particularly with a view to securing a roof over his head, a matter no doubt central to his health and well-being. The maintenance of those arrangements needs to be secured.
It appears BA may have commenced proceedings in the Family Court of Western Australia. It appears that the family has been involved in various other legal proceedings. SA has in the past seemingly become embroiled in them, if not against his will, then without the ability to effectively have a say in the proceedings and their running. It seems from GC's comments to the Tribunal that SA may well be unhappy with some or all of these actions and, from the evidence of EL, he seems very uncertain of the status of the various actions. The extent to which SA might still be caught up in any proceedings is unclear. Whether there are matters in which he has an interest that need to be advanced is not clear, nor is the extent to which he may be exposed to costs or other adverse findings in matters where he is a party. Action needs to be taken to investigate these matters and if appropriate to take action to secure his position. On the evidence before the Tribunal, there can be little doubt that SA would not have the capacity to manage such matters on his own behalf. Whether or not he has a legal interest or any contingent or equitable interest in, or any future expectation to, any property in South Australia needs also to be determined.
It is noted that, at least initially, his family seemed to agree that SA is in need of all these sorts of assistances and that problems do exist in terms of SA's capacity to manage for himself. It appears that this is largely the reasoning behind JA's efforts to activate the SA EPA locally. It seems only when the perceived spectre of the Public Trustee comes into the equation that the attitude of the family to SA's incapacity changes.

Need for administration or least restrictive alternatives

It seems clear that the second WA EPA in favour of BA should be revoked in all the circumstances. The parties have separated and BA plays no continuing role in SA's life. It is noted that as part of documentation to settle Western Australian Court of Appeal proceedings involving the family, BA executed a letter acknowledging that, in view of her and SA having separated, there is a need for the appropriateness of the WA EPA to be considered by the Tribunal. She has played no role in these proceedings and, it is said by JA, accepts that it is inappropriate for the second WA EPA to continue. In the view of the Tribunal, it does not represent an appropriate less restrictive alternative to an administration order.
In the view of the Tribunal, the issue of the registration of the SA EPA has already been dealt with by the Tribunal, not only at first instance but upon s 17A review to the Full Board. If JA takes issue with that decision, then the appropriate course is for her to appeal to the Supreme Court. In the view of the Tribunal, that recognition issue has been determined and is res judicata. If the Tribunal is wrong about that and the matter is open for determination, then in the view of the Tribunal, for the same reasons identified by the Full Board (which are respectfully adopted), it remains inappropriate for the SA EPA to be recognised in Western Australia. JA claims that there are 'valid grounds for reapplying for recognition of [the SA EPA]'. If there are, or if there are new circumstances that otherwise support the reopening of that issue, then those grounds or circumstances have not, in the Tribunal's view, been adequately identified and explained by JA and are not apparent from any of the material submitted. The Tribunal is of the view that the SA EPA is not available to operate as a mechanism for the management of SA's finances and does not represent an appropriate less restrictive alternative to an administration order.
The Tribunal accepts the evidence detailed above as demonstrating that there is a need for an administration order. To that extent, the Tribunal accepts the evidence of EL and Dr SS regarding these matters to the extent that it conflicts with any of the statements of the family members. Even with the arrangements that have been put in place to date, it is clear that things are going awry and that SA's needs are not being adequately met under the current arrangements and that arrangements need to be put in place formally to secure his accommodation and to ensure that SA has access to necessaries, that funds are budgeted to meet outgoings, and to ensure that SA has access to an appropriate and affordable amount of money for his personal expenditure. His position with respect to any ongoing litigation needs to be checked and appropriate action to secure his position and deal with matters in his best interests needs to be taken if required.

OPA's views on need

In his report, GC, on behalf of the Public Advocate, recommended that:
(i)the guardianship application be dismissed on the basis that there was no need;
(ii)the application for recognition of the SA EPA be dismissed;
(iii)the issue of how things were working at present be considered further in the hearing but that if the Tribunal was not satisfied with the current arrangements; then
(iv)the Public Trustee be appointed for a short trial period and that the EPA in favour of SA's estranged wife, BA, be revoked.
In the hearing, GC essentially confirmed (i), (ii) and (iv) above and, having heard the further evidence, confirmed that his view was that an appointment of the Public Trustee was required and that a 12 month period was, in the circumstances, an appropriate trial length.

Wishes of the represented person

In his report and in evidence, GC spoke of SA's views as expressed to him. He confirmed inter alia that SA wished to leave things as they are and that orders were not required; that SA was trying to mend his relationships with his family but that he was struggling to gain his independence from 'the influence or possible control or perceived interference from' his family; that he did not support the guardianship application by his sister or see the need for it; that he believed that he had revoked any EPA in favour of his mother; that he had a reasonable relationship with his brother which 'would be better' if it were not for the family's influence on the brother also. GC observed that SA had good rapport with Dr SS and EL. He also confirmed SA's view that if there had to be an order regarding the management of his finances, he would prefer the Public Trustee to his family.
Although the Tribunal did not see or hear directly from SA, it had received a handwritten note from him in May 2010 which reflects his distress, the deteriorated relationships between him and the other members of the family in which it is clear that he is concerned about attempts by his family to gain any sort of control over him. The precise terms of the letter are not relied upon by the Tribunal to ground any finding of fact but its flavour is consistent with the remarks attributed to SA by GC.

Who should be appointed

The only nominee for appointment as administrator at present is the Public Trustee. Clearly, JA feels that she should be the one looking after SA's affairs under the SA EPA. In the view of the Tribunal, given the complex history (including the way that JA has conducted herself with respect to the various pieces of litigation and the potential for conflict of interest in relation to the litigation), but more particularly in view of SA's stated wishes and the evidence regarding the current dynamics of the relationship between SA and his family, an independent administrator is required. Even if JA had attended the hearing and had formally nominated herself for the position of administrator, that course would not have been adopted by the Tribunal for the reasons mentioned.

Adjournment

In the view of the Tribunal, it is not in SA's best interests for the matters to be further adjourned to hear from the family. They had notice of the hearing and an opportunity to be present and put their version of events. JA and other family members appear to have elected consciously not to participate in the hearing. It appears that the original reason for seeking to defer the hearing was to have a private psychiatrist provide a second opinion regarding SA. It is apparent from the evidence of Dr SS and EL that SA does not wish to take up this option (and that he has made a competent decision regarding this) and that it is more at his mother's instigation. It therefore does not constitute a good reason to adjourn the matter further. It may be that YA could not come to the hearing; we know no details of what is preventing her attendance, only a last minute statement that she could not attend on the afternoon of 6 September 2010 (without reason) and a one sentence medical certificate certifying her unfit for work (though what work is not known and for what reason is not known) for 3 September 2010 to 6 September 2010. It appears that she may not be pursuing her application in any event, though of course she may have had something to say on the other applications. In the view of the Tribunal, her absence in the circumstances is not a sufficient reason to further adjourn the matter. Nor is the absence of SA. It is unclear why he was not at the hearing, though it is perhaps not unexpected. It is noted that he is not seeking an adjournment. His wishes as expressed to CG are noted.

Length of administration order

In the view of the Tribunal, it is appropriate for a 12 month order to be made. SA has the ability to make decisions in many spheres for himself with varying degrees of support. His condition fluctuates. The cessation of the VROs and the renewed seeking of an active role in his care and decision-making by JA has clearly created something of an upheaval in SA's life in recent months and there have been stresses and pressures which, on the evidence of Dr SS, affect SA's mental health. On the other hand, although he appears to have had budgeting problems for some time, if a balance can be found so that SA can have the benefits of consistent and appropriately funded support, with appropriate financial 'brakes' in place to ensure that he reliably has the necessaries of life available to him, then his mental health may improve and with it his ability to manage for himself. In the view of the Tribunal, it is in SA's best interests that this is developed in a way that gives him independence from his family and that allows for him to have a supportive relationship with all family members (without there being a sense that they are exercising control over him). It is hoped that over the course of the next 12 months, if these things can happen, circumstances may settle for SA such that a less restrictive alternative might be able to be considered to assist with day to day budgeting, and issues relating to any interstate property and litigation will be able to be clarified and sorted out. Family involvement might be an option depending upon how matters and relationships develop. In the circumstances, the Tribunal is of the view that SA's capacity and the continuing need for the administration order should be reviewed in 12 months time.

Orders

In the circumstances, the Tribunal ordered that:

GAA 947 of 2010

1.The [second Western Australian enduring power of attorney (whereby SA appointed BA as attorney)] is revoked.

GAA 949 of 2010

1.The application [for recognition of the South Australian enduring power of attorney] is dismissed.

GAA 960 of 2010

1.The application for guardianship is dismissed.

GAA 1628 of 2010

1.The Public Trustee … is appointed plenary administrator ...
2.This order is to be reviewed by 6 September 2011.

I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS H LESLIE, SENIOR SESSIONAL MEMBER