TM

[2021] WASAT 92

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   TM [2021] WASAT 92

MEMBER:   PRESIDENT PRITCHARD

MR J MANSVELD, SENIOR MEMBER

DR J CAUNT, SESSIONAL MEMBER

HEARD:   13 NOVEMBER 2020, 17 DECEMBER 2020

DELIVERED          :   7 JULY 2021

FILE NO/S:   GAA 3735 of 2020

TM

Represented Person

Catchwords:

Guardianship and administration ­ Application pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) ­ Challenge to the appointment of a guardian and administrator ­ Where represented person had suffered a brain injury due to a stroke or strokes ­ Whether, by virtue of her mental disability, the represented person is unable to make reasonable judgments in respect of matters relating to all of her estate and in need of an administrator ­ Whether represented person is unable to make reasonable judgments in respect of matters relating to her person, in need of oversight, care or control in the interests of her own health and safety, and in need of a guardian ­ Where represented person spent beyond her means and showed lack of insight into her physical limitations which may impact her ability to negotiate NDIS services ­ Whether less restrictive means available to facilitate decisions ­ Where informal decision-making support available, but where formal authority of a guardian or administrator may be required in some circumstances ­ Whether plenary or limited guardian and administrator required ­ Where informal support for decision-making in place by virtue of assistance provided by NDIS co-ordinator and support workers ­ Whether siblings were suitable guardians or administrators ­ Impact on family relationships

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 17A(1), s 43, s 44, s 45, s 46, s 64, s 68
State Administrative Tribunal Act 2004 (WA), s 27

Result:

Public Trustee appointed plenary administrator
Public Advocate appointed limited guardian

Category:    B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : In Person

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

FY [2019] WASAT 118

Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301

PG[2021] WASAT 81

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1TM has applied, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), for the review of a decision made by a single member of the Tribunal, Member Leslie, on 16 July 2020. 

2Member Leslie declared that TM was unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; in need of an administrator of her estate; incapable of looking after her own health and safety; unable to make reasonable judgments in respect of matters relating to her person; in need of oversight, care or control in the interests of her own health and safety; and in need of a guardian.  Member Leslie then made the following orders (Orders).  She appointed DM and AS, TM's brother and sister, as joint plenary administrators of her estate with all the powers and duties conferred by the Act.  The administrators were authorised to expend up to $500 per annum on gifts.  Member Leslie also appointed DM and AS as TM's joint limited guardians with functions to decide where TM is to live, whether permanently or temporarily; to decide with whom TM is to live; to make treatment decisions for TM; and to determine the services to which TM should have access.  The learned Member ordered that the Orders were to be reviewed by 16 July 2025.

3TM challenges both the appointment of a guardian and the appointment of an administrator.[1]  Her view is that she has the capacity to make all decisions on her own behalf and that neither a guardian nor an administrator is needed.

[1] ts 24, 17 December 2020.

4The primary issues for the Tribunal on this review are whether a guardian and administrator should be appointed for TM, and if so, who should be appointed.

5For the reasons which follow, we have concluded that the requirements of the Act for the appointment of a guardian in respect of TM are met, that she is in need of a guardian, and that the Public Advocate should be appointed her limited guardian.  We are also satisfied that the requirements of the Act for the appointment of an administrator are met and that TM is in need of an administrator of her estate.  We are of the view that the Public Trustee should be appointed the plenary administrator of TM's estate.  These orders should be reviewed in two years.

Background

6TM is a 59­year­old woman who suffered a stroke at the age of 29 which left her with paralysis on her left side.  She told us she also suffered a further stroke 15 years later.[2]  She now has significant physical limitations and uses a wheelchair for all mobility.  In addition, TM has a number of other health issues including double incontinence. 

[2] ts 61, 17 December 2020.  Other evidence suggested she had instead suffered multiple transient ischaemic attacks (TIAs) since her first stroke.

7TM has resided in shared supported accommodation since 2017.  Prior to that, she had lived independently, but with support, at her own unit (Unit).

8TM now requires support 24 hours per day for self­care, daily living and domestic tasks.  She requires support for all transfers into and out of her wheelchair, using a standing hoist and with the assistance of support workers.

9TM's estate is a modest one.  She owns the Unit, which she purchased in 1994.  She has some superannuation and a small number of shares.  She receives the disability pension each fortnight.  Most of her pension is allocated to the payment of her living expenses with her accommodation provider (WABS). 

10TM also receives funding from the National Disability Insurance Scheme (NDIS).  At the date of the hearing, the amount of this funding was largely to cover her transport costs.  However, TM had been approved for special disability accommodation (SDA) at the highest funding level, which is designed to provide support to those with high physical support needs.  At the time of the hearing, she was being assessed for the extent of support worker assistance which would be required to enable her to live in such accommodation. 

11TM has a loving and supportive family.  Apart from her parents, she has seven siblings, including DM and AS.  Prior to the application to the Tribunal on 19 May 2020 (Initiating Application), which culminated in the decision by Member Leslie, TM's siblings had provided her with practical support and support in relation to decision­making.  However, they noticed a decline in her decision­making capacity and concern on their part led them to make the Initiating Application.

The nature of the review

12Section 17A(1) of the GA Act permits any party who is aggrieved by a determination made by the Tribunal consisting of one member, to request the President of the Tribunal to arrange for a full Tribunal to review the determination. Reviews under s 17A thus come within the Tribunal's review jurisdiction.

13As the Tribunal is exercising its review jurisdiction, the hearing of the review was conducted as a hearing de novo.  Consequently, the hearing was not confined to the matters that were before the Tribunal at first instance but involved the consideration of new material including evidence the Tribunal received for the purposes of, and in the course of, the hearing of the review.  

14The purpose of a review is to produce the correct and preferable decision at the time of the decision on the review.[3]  

[3] State Administrative Tribunal Act 2004 (WA) s 27(2).

Principles governing proceedings under the GA Act

15It is appropriate to commence by recalling that in dealing with proceedings under the GA Act, the Tribunal is required to observe the principles set out in s 4 of that Act.[4] 

[4] GA Act s 4(1).

16The primary concern of the Tribunal is the best interests of any represented person or proposed represented person.[5]  In addition, every person is presumed to be capable of, amongst other things, managing their own affairs and making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the Tribunal.[6] That important presumption applies in respect of every application under the GA Act, including the present review. In considering any matter relating to a represented person, the Tribunal is also required, as far as possible, to seek to ascertain the views and wishes of the person concerned.[7]  

[5] GA Act s 4(2).

[6] GA Act s 4(3).

[7] GA Act s 4(7).

17A guardianship or administration order should not be made if the needs of the proposed represented person could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action.[8]   A plenary guardian shall not be appointed if the Tribunal is of the opinion that the appointment of a limited guardian would be sufficient to meet the needs of the proposed represented person.[9]  In addition, any order appointing a limited guardian or an administrator should be in terms that, in the opinion of the Tribunal, impose the least restrictions possible, in the circumstances, on the represented person's freedom of decision and action.[10]

[8] GA Act s 4(4).

[9] GA Act s 4(5).

[10] GA Act s 4(6).

The evidence before the Tribunal on the Review Application

18TM attended the hearing of the review application.  We invited her views and she was able to clearly express them to us.  We refer to TM's views in further detail later in these reasons.  We also permitted Ms Drake, from Developmental Disability WA (DDWA), to appear, to provide assistance to TM in making her submissions.  Ms Drake also made some submissions on TM's behalf. 

19A number of interested persons attended and gave evidence.  They were:

(a)TM's siblings, Mr DM, Ms NM and Ms AS;

(b)Ms KL, from the Office of the Public Advocate (OPA);

(c)Ms AR, TM's support co­ordinator for the NDIS; and

(d)Ms SK, operations manager of TM's accommodation provider, WABS.

20We received in evidence various documents prepared by medical practitioners and health professionals who treated TM.  Those documents comprised:

·Reports of Dr BO, dated 3 December 2020 and 12 November 2020;

·Report of Dr DK, dated 21 May 2020;

·Consultation notes by Dr DK, dated 22 April 2020, 8 April 2020, 15 March 2020, 5 March 2020, 25 February 2020 and 20 February 2020;

·Discharge summaries from Royal Perth Hospital, dated 24 June 2020, 17 June 2020, 12 June 2020 and 11 May 2020;

·Discharge summary from Sir Charles Gairdner Hospital, dated 8 July 2020;

·Bundle of medical and allied health outcome forms prepared by WABS in respect of medical issues concerning TM; and

·Discharge reports of medical practitioners associated with TM's hospital admissions (various dates).

21We also received evidence in the form of reports and other documents prepared by service providers engaged in TM's care at various times including:

·NDIS plan, dated 30 September 2019; and

·Reports of Ms LM, team leader, WABS, dated 2 November 2020, 16 June 2020 and 10 June 2020.

22The Tribunal also received an email dated 6 July 2020 from Mr DM, setting out his concerns about TM's decision-making ability, which we have treated as a statement of his evidence.   

23Ms Drake provided the Tribunal with a report on behalf of TM dated 30 November 2020.  We treated that report as a written submission made on TM's behalf.

24Also in evidence was correspondence from the Public Trustee dated 6 October 2020, enclosing a copy of a form submitted by Mr DM and Ms AS, in their capacity as TM's present administrators, setting out information in relation to TM's estate. 

25In addition, the Tribunal was assisted by a report by Ms KL, an investigator advocate from OPA, dated 10 November 2020, which was prepared following investigations she carried out at the request of the Tribunal.

The statutory criteria for the appointment of a guardian and an administrator

26The appointment of a guardian requires that the Tribunal be satisfied as to the matters set out in s 43(1) of the GA Act, which provides:

(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.

27If the Tribunal is satisfied as to the matters set out in s 43(1)(a) - (c), then the Tribunal is required to consider subsidiary questions, identified in s 43(1)(d) and (e), s 43(3) and s 43(4), namely who should be appointed the guardian, whether a plenary or limited guardian should be appointed, and in the latter case, what functions should be conferred on the guardian.

28The appointment of an administrator requires that the Tribunal be satisfied as to the matters set out in s 64(1) of the GA Act. That subsection provides:

(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.

29If the Tribunal is satisfied as to the matters in s 64(1), then it is required to consider subsidiary questions, such as who should be appointed the administrator, whether the administrator should have plenary or limited functions, and in the latter case, the nature of those functions.

30Section 64(1)(a) makes clear that a person's inability to make reasonable judgments in respect of their estate does not, of itself, constitute a sufficient basis for the making of an administration order. Individuals without a mental disability are entitled to make choices in respect of their estate which others might regard as unreasonable. Nor does the existence of a mental disability, of itself, constitute the basis for the making of an administration order. Depending on the nature of their mental disability, a person with a mental disability may be capable of making reasonable decisions in respect of their estate.

31It is only if the Tribunal is satisfied, on the evidence before it, that a person has a mental disability, and that it is 'by reason of' that mental disability that they are unable to make reasonable judgments in respect of their estate, so that the presumption in s 4(3)(d) of the GA Act is displaced, that the criterion in s 64(1)(a) will be satisfied.

32The meaning of the phrase 'by reason of' has been considered in many cases and in a variety of statutory contexts.[11] The use of the phrase 'by reason of' in the context in which it appears in s 64 implies a relationship of cause and effect between a mental disability and a person's inability to make reasonable judgments in respect of matters relating to all or any part of their estate. The context suggests that the meaning of the phrase 'by reason of' equates to 'because of' and 'due to'.[12]  

[11] See the discussion of the cases in Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301, 321 (Lockhart J).

[12] See FY [2019] WASAT 118 [75] and the cases discussed therein.

33The application of s 64 involves both subjective and objective components.[13]  The Tribunal is required to consider whether the person in respect of whom the application is made has the ability to make 'reasonable judgments' about their estate.  (The reference to a person's 'estate' is a reference to the aggregate of their property, their assets and liabilities, and in practice encompasses the entirety of their real and personal property and all of their financial affairs.[14])  That constitutes the subjective component of the determination, because the person's ability falls to be assessed in relation to their actual estate.  At the same time, the Tribunal must also consider whether the person has the ability to engage in the particular mental process which is required in order to make that judgment, and that test is an objective one.  The Tribunal is thus required to

consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a 'reasonable judgment' (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances.[15]

[13] See FY [2019] WASAT 118 [52] and the cases discussed therein.

[14] See FY [2019] WASAT 118 [54] and the cases discussed therein.

[15] See FY [2019] WASAT 118 [52] and the cases discussed therein.

34Fundamentally, however, a person's ability to make reasonable judgments about their estate requires that they have the cognitive ability necessary to make decisions of that kind.  An individual's ability to make reasonable judgments in respect of their estate requires that they have, amongst other things, the ability: to understand the need for, and sources of, income available to them; to understand the value of any income received relative to items of expenditure; to identify and calculate necessary expenditure for day to day living, together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their means; to identify and to assess the financial implications of particular items of expenditure or of financial decisions (for example whether to enter into contracts such as those for the purchase of a phone, household items, or a car, or the costs involved in home ownership); to organise their affairs so as to be able to meet debts as they fall due; and to identify and implement problem solving strategies for resolving any unexpected financial issues.[16] 

[16] See FY [2019] WASAT 118 [53].

35In the case of the appointment of both a guardian and an administrator, the central question for the Tribunal is whether the proposed represented person has the capacity to described in s 43(1)(b) or in s 64(1)(a), namely to make decisions of the kind referred to, or which are related to, the matters in s 43(1)(b), in relation to their person, or reasonable judgments in respect of matters concerned with their estate.

36It is therefore appropriate to commence by considering whether the evidence established that TM is incapable of looking after her own health and safety; unable to make reasonable judgments in respect of matters relating to her person; in need of oversight, care or control in the interests of her own health and safety or for the protection of others; or unable, by reason of a mental disability, to make reasonable judgments in respect of all or any part of her estate. 

TM's decision­making capacity

37The evidence as to TM's decision­making capacity fell into four categories.  First, the Tribunal received evidence from Dr DK and Dr BO as to their opinions of TM's ability to make decisions both as to personal and financial matters.  Secondly, the Tribunal received evidence from members of TM's family, who have provided support to her throughout the 30 years since she suffered her first stroke.  Mr DM, Ms AS and Ms NM provided the Tribunal with evidence as to their observations of TM's decision­making over many years.  Thirdly, the Tribunal heard evidence from Ms SK, who conveyed the concerns of the staff of WABS, and evidence of Ms AR, TM's NDIS support co-ordinator, based on their observations of TM's conduct.  Finally, the Tribunal heard evidence from TM herself, and also heard evidence of TM's views through Ms KL, who reported evidence of her conversations with TM.

Medical evidence

38Some of the medical evidence before us concerned the period April to July 2020, during which TM was significantly unwell.  It is unnecessary for us to discuss this evidence other than to say that it supports the conclusion that TM's ill-health during this period, which manifested in a number of symptoms, including confusion and delirium, appears to have been caused, at least in part, by infections.  It was not in dispute that any impact on her cognitive capacity from that period of ill health has since resolved. 

39The medical evidence of relevance to our assessment of TM's present cognitive capacity was the evidence of Dr DK, and the evidence of Dr BO.

Evidence of Dr DK

40In addition to receiving Dr DK's report and the various consultation notes he prepared in respect of consultations with TM during the early part of 2020, the Tribunal had the benefit of receiving oral evidence from Dr DK at the hearing.

41Dr DK was TM's general practitioner for 7 years until May 2020, when he handed her care to Dr BO.  Dr DK's expertise in relation to the assessment of cognitive functioning of patients was drawn from his experience in general practice.[17]

[17] ts 4, 17 December 2020.

42Dr DK explained that medical reports indicated that TM had suffered longstanding changes in her brain as a result of the stroke she suffered in her twenties.  The consequence of that stroke was that parts of her brain were scarred or dead, and there was swelling as a response to the long term changes in her brain.[18]  Dr DK explained that the parts of TM's brain which had been affected were those in the frontal lobe, parietal lobe and temporal lobe.  These were the areas of the brain responsible for emotional behaviour, memory, reasoning and cognitive function.[19]

[18] ts 6-7, 17 December 2020.

[19] ts 8, 17 December 2020.

43During the 12 months prior to preparing his report dated 21 May 2020, Dr DK saw TM 18 times.  There was no doubt that he was very familiar with her medical condition.  There was also no doubt that he had had an ample opportunity to observe her cognition.  He had also undertaken assessments of TM's cognition.

44Dr DK's consultation notes indicate that during early 2020 he had observed signs that TM's memory might be in decline.  In his consultation notes of 20 February 2020, Dr DK described how TM had failed to recall a discussion about some health issues only months before.  Staff at WABS also reported that TS was 'not retaining any information … [and] she can now not remember a conversation she had half an hour prior'.  Dr DK noted that her 'memory might be failing'.  He arranged for her to have further consultation so that she could undertake a Mini­Mental State Examination (MMSE).  The MMSE is a broad brush screening test very commonly used by general practitioners to screen patients for signs of the onset of cognitive decline.[20] 

[20] ts 9, 17 December 2020.

45TM undertook an MMSE for Dr DK on 25 February 2020.  In that test, she scored 30 out of 30.  In his consultation notes from that day, Dr DK described TM as 'very lucid today' and that the result of the MMSE test that day suggested that her 'short term memory is fine'.

46TM's cognition was also assessed using the Addenbrooke's Cognitive Examination (ACE) on 6 March 2020. The ACE test is a cognitive screening tool. The ACE test involves a more detailed assessment than an MMSE,[21] and an MMSE is one of the components of the ACE test. TM achieved a result of 81 out of 100 in the ACE test, and her score in the MMSE component of that test was 28 out of 30.

[21] ts 9, 17 December 2020.

47The ACE test identified that TM had some cognitive deficits in the areas of the test which tested memory and verbal fluency.  Dr DK explained that TM's result in the memory component of the ACE test had an impact on her cognitive functioning because 'memory is obviously an integral part of decision-making.  And there was a moderate deficit in her memory capacity demonstrated by the [ACE test]'.[22]  Dr DK's opinion was that TM suffers from mild to moderate memory loss.[23]  TM also showed a moderate deficit in the verbal fluency component of the test, which Dr DK explained was evidence of a slowing in the processing power of TM's brain.[24]

[22] ts 9, 17 December 2020.

[23] Dr DK report dated 21 May 2020.

[24] ts 11, 17 December 2020.

48We asked Dr DK whether TM's results in the ACE test could have been affected by underlying infections, given that the ACE test was undertaken shortly before the period between May and July 2020 when TM was very unwell and required hospital admissions.  Dr DK's opinion was that 'when we did the [ACE test] and the [MMSE test], … [TM] was at her baseline functioning.  I do not think those tests were conducted in a period where she had delirium or she was having a temporary condition that would have artificially skewed the results'.[25]  Dr DK's view was that the severe cognitive impacts noticed during TM's hospital admissions were 'temporary aberrations'.[26] 

[25] ts 13, 17 December 2020.

[26] ts 8, 17 December 2020.

49Dr DK's opinion was that TM suffers from a mental disability, resulting from a cerebral haemorrhage at the age of 29 years, which has had a number of permanent effects.  That condition, in his view, was static.[27] 

[27] Dr DK report dated 21 May 2020.

50Dr DK also opined that TM is incapable of making reasonable decisions in respect of simple and more complex financial matters, or legal matters.  In so far as he considered that TM required assistance in relation to simple financial matters, however, it appears that Dr DK's view was based on reports from her family.[28]

[28] Dr DK report dated 21 May 2020.

51In relation to decision making in relation to personal matters, Dr DK was unsure as to whether TM had capacity to make reasonable decisions in relation to medical treatment and procedures.  His view was that he thought she retained moderate, but not complete, capacity in this respect.  He was of the opinion that she was incapable of making reasonable decisions in relation to accommodation (in terms of identifying and securing housing appropriate to her care and support needs) and services (such as identifying and securing appropriate support services).[29]  Dr DK opined that TM may have the cognitive capacity to execute an enduring power of attorney or guardianship, or an advanced health directive, provided she had some guidance in relation to those decisions. 

[29] Dr DK report dated 21 May 2020.

52Based on his own observations, and testing, and reports from TM's family and from her carers,[30] Dr DK's opinion was that TM has the capacity to make minor decisions, and even sometimes 'to make moderately complex decisions.  But … her ability to make complex decisions is impaired as a result of her [brain injury] and that is a long-term … incapacity'.[31]  Dr DK told us that TM 'does not, has not and will not have the capacity to decide a complex matter, such as her ability to return home and live outside of full time care'.[32] 

[30] ts 7, 17 December 2020.

[31] ts 7, 17 December 2020.

[32] ts 7, 17 December 2020.

Dr BO

53In addition to receiving Dr BO's reports of 3 December 2020 and 12 November 2020, the Tribunal had the benefit of oral evidence from Dr BO at the hearing.

54Dr BO has been TM's general practitioner since June 2020.[33]  Like Dr DK, Dr BO's experience in assessing cognitive functioning was drawn from her experience in general practice.[34]

[33] Dr BO's written report of 12 November 2020 indicated that she had known TM since April 2020, but in oral evidence, Dr BO clarified that it was 'more like June' since she commenced treating TM: ts 14­15 and 17 December 2020.

[34] ts 15, 17 December 2020.

55In her report of 12 November 2020, Dr BO expressed the opinion that TM did not have a mental disability.  Her view was that TM had the capacity to make reasonable decisions in relation to medical treatment and procedures, accommodation and services.  She thought TM capable of executing an enduring power of attorney or guardianship and an advanced health directive.  She did not express a view in relation to TM's decision­making ability in respect of financial matters.

56At the time of her first report on 12 November 2020, Dr BO had not undertaken any assessment of TM's cognitive capacity, but following the provision of that report, Dr BO asked TM to undertake the MMSE (on 3 December 2020).  TM scored 28 out of 30 in that test. 

57In her oral evidence, Dr BO explained that in the course of the seven occasions on which she had seen TM she had never considered 'that [TM] wasn't able to understand, retain, weigh up and decide what she wanted to do'.[35]  Dr BO acknowledged that those consultations involved discussions of TM's medical care.  She was asked whether those discussions were indicative of a cognitive ability in relation to TM's personal care.  Dr BO's evidence was that she had not seen any reason to doubt that aspect of TM's decision­making ability but was unable to comment on more complex decisions as she had not had such issue arise.[36]

[35] ts 17, 17 December 2020.

[36] ts 18, 17 December 2020.

58As for financial decision making, Dr BO was of the opinion that TM would be able to make decisions in respect of financial matters:

I think she will be able to with discussion.  The problem – I don't see that she can't – you know, my idea of capacity is understanding, retaining and making a decision after that.  And she has that, so I don't see why she shouldn't be able to.[37]

[37] ts 18, 17 December 2020.

59Dr BO was unable to comment on how that opinion sat with the results of TM's brain injury, as explained by Dr DK.  Dr BO's evidence was that her opinion was based solely on the seven consultations and one discussion by telephone which she had had with TM since June 2020.[38]  However, Dr BO acknowledged that those consultations and discussions had not provided the occasion for her to explore the deficiencies in TM's cognitive abilities which had been identified in the ACE test.[39]  She also accepted that it was possible that the results from the ACE test continued to apply, notwithstanding that she had not seen evidence of those deficits in her consultations or discussions with TM.[40] 

[38] ts 18, 17 December 2020.

[39] ts 20-21, 17 December 2020.

[40] ts 20, 17 December 2020.

60For completeness, we note that there was evidence in the documents before us which indicated that during 2020, TM had been prescribed Memantine.  Dr BO explained that that was a drug which was often given to patients suffering mild dementia, in order to slow down their cognitive decline.[41]  She explained that that drug improved cognition by assisting a patient's short-term memory.[42]

[41] ts 22, 17 December 2020.

[42] ts 24, 17 December 2020.

61Dr DK's evidence was that it was not possible to compare TM's results in the ACE test in March 2020, with her results in the MMSE test she undertook for Dr BO in December 2020.  His evidence was that the ACE test would need to be repeated for a proper comparison to be done with the results of that test in March 2020.  However, he noted that TM's score of 28 out of 30 in the MMSE test in December 2020 was the same as the score she achieved in the MMSE component of the ACE test in March 2020.[43] 

[43] ts 12, 17 December 2020.

62We accept that the evidence of Dr DK and Dr BO constituted their genuinely held opinions based on the information available to them.  However, we prefer the evidence of Dr DK, for three reasons.  First, Dr DK had been treating TM for a far longer period than Dr BO and had had a greater opportunity to observe her abilities and functioning over a longer period of time, as compared with Dr BO.  Secondly, Dr DK conducted the ACE test to assess TM's cognition.  While still a screening test, it is a more detailed test than the MMSE, and to that extent provides more insight into the areas of deficit in TM's cognitive ability.  Thirdly, Dr BO acknowledged that the seven consultations and one phone conversation she had had with TM had not provided the occasion for her to explore the deficiencies in TM's cognitive abilities which had been identified in the ACE test.[44]  Dr BO accepted that it was possible that the results from the ACE test continued to apply to TM, notwithstanding that she had not seen evidence of the cognitive deficits that test had identified in the course of her consultations or discussions with TM.[45] 

[44] ts 20-21, 17 December 2020.

[45] ts 20, 17 December 2020.

63The term 'mental disability' is defined in the GA Act[46] to include an acquired brain injury.  The medical evidence supports the conclusion that TM suffers from a mental disability, namely an acquired brain injury, as a result of the stroke (or strokes) that TM has suffered.  Dr DK's evidence supports the conclusion that TM's brain injury has resulted in permanent cognitive limitations, primarily seen in mild to moderate memory loss, and a slower ability to process information.  Dr DK's evidence supports the conclusion that, as a result, TM does not have the capacity to make complex decisions about financial matters or personal matters (in relation to identifying and securing suitable accommodation and services).  However, the medical evidence supports the conclusion that TM retains the capacity to make decision in relation to simple financial matters and in relation to less complex personal matters, especially if she is supported by others in that decision­making process.

[46] GA Act s 3.

64However, the medical evidence was not the only evidence relevant to TM's cognitive abilities.  We turn to consider how that other evidence bears on our overall assessment of TM's decision­making capacity.

Evidence of TM's family members

65Despite tensions that have clearly emerged between TM and her siblings since the Initiating Application was made (discussed below), it is apparent that TM's siblings care deeply for her and want to ensure her well­being.  TM's family have been able to observe her decision­making abilities over the many years since she suffered her first stroke.  For that reason, they were in the best position to provide a longer term perspective on TM's decision­making ability, and were able to provide examples of their concerns about limitations in that decision making ability.  

66Mr DM's evidence at the hearing before Member Leslie was that TM's 'cognitive and intellectual abilities have been in decline for a long time, and … are in a steady state of decline, and they're variable. … [TM's] alertness and intellectual and cognitive functionality varies wildly from one day to the next, one hour to the next'.[47]

[47] ts 15-16, 16 July 2020.

67In so far as TM's capacity for financial decision making is concerned, Mr DM provided examples of his concerns about TM's ability to make reasonable decisions in relation to her finances.  Mr DM stated:[48]

[TM] has always 'managed' her own financial affairs for better or worse.  … Regrettably some of her spending habits have continued after she ceased employment and her income was significantly reduced.

[TM] now has a precarious financial situation to the extent that she is regularly unable to meet her financial commitments.  She also has a means to improve her financial circumstances markedly – but she chooses not to.

[TM] receives a full Disability Support Pension and Rent Assistance.  85% of [TM's] pension is spent directly on food and living expenses at [WABS].  This leaves very little disposable cash for medication and discretionary spending.

[TM] also owns a parcel of shares.  …  They recently returned a half-yearly dividend … .  She would be entitled to claim franking credits – but does not understand how to available herself of this entitlement and does not seek assistance from family members – she believes that she is capable of managing her finances.  This is demonstrably not the case.

…

[TM] owns [the Unit]. … [A] strata by-law … determines that residences cannot be rented out.  [TM] therefore has received no income from her property for more than three years.  She is still liable for [all expenses associated with the property] whilst the property remains vacant.  [TM] does not wish to sell her property – she wants to return there.  This is not possible and will never happen. … The property costs her thousands of dollars every year it sits vacant.  She could be earning income from the proceeds of the sale of the property.  …  I have explained this to her many times.

[TM's] budgeting skills are evidently very poor or non-existent.  She consistently fails to pay substantial bills.  Sometimes she approaches family members for assistance.  Sometimes creditors approach family members for assistance.

[48] Email to Tribunal dated 6 July 2020.

68Mr DM acknowledged that TM 'can make decisions about financial things.  She can pay bills.  She can do all those things.  I mean, she's still doing it.  It's the longer term bigger picture things [that are the issue]'.[49]  Mr DM reported that the family had witnessed a pattern of poor decision making by TM over the years, in which TM had amassed debts of several thousands of dollars which she was unable to meet without assistance from her family.[50] 

[49] ts 46, 17 December 2020.

[50] ts 48, 17 December 2020.

69Ms AS pointed out that TM's family had been assisting her in financial decision making for many years.  She explained that TM had had financial issues for a long time and that she did not think that that would change 'because that's the way [TM] is'.[51]  Ms AS' evidence was that 'we've done a fairly detailed budget of her expenses and … there are things that she possibly doesn't realise.  There are bills that get direct debited to her account, such as her [health insurance].  There are her pharmacy bills, which we were paying'.[52]  Ms AS told us that TM 'spends far more than what she earns'[53] from her pension and her modest investments.  She explained that TM managed by paying a lot of bills on her credit card, while making the minimum payment each month, leaving that account with a significant debt.[54]

[51] ts 53, 17 December 2020.

[52] ts 53, 17 December 2020.

[53] ts 53, 17 December 2020.

[54] ts 53, 17 December 2020.

70Ms Drake submitted that the evidence of TM's family as to TM's non-payment of bills was largely 'untested' evidence, in that the number of bills unpaid, the quantum involved, and over what period of time, had not been specified.[55]  The concern expressed by TM's family, however, was not so much concerned with the payment of bills (and they did not dispute that TM was capable of doing that).  Their concern lay in TM's continuing tendency to amass sizeable debt because she did not live within her means, which they attributed to TM's inability to make reasonable judgments about how about to manage her estate in such a way as to maximize her income, while controlling her expenditure so that it did not exceed her income.

[55] ts 58, 17 December 2020.

71In relation to personal matters, Mr DM's evidence was that TM 'has had a long history of poor decision-making that has put her at physical risk … and resulted in her living in squalid conditions in her own home because she could not recognise the level of dysfunction and disability that she endured'.[56]  He told us that TM continued to lack insight into the extent of her physical needs.  He referred, by way of example, to TM's unrealistic views about the extent of support she would require from support workers to live independently in SDA housing.  Mr DM was clearly concerned that if it were up to TM to make decisions about personal matters such as her accommodation, that she would not be able to make a reasonable judgment because of that lack of insight into her own needs.[57] 

[56] Email to the Tribunal dated 6 July 2020.

[57] ts 48-49, 17 December 2020.

72Ms AS shared Mr DM's concern about TM's lack of insight into her need for support with daily living.  She told us that TM's view was that she only required a support worker to come in for a few hours in the morning, to help her to get out of bed and to use the toilet, and then to return for a few hours in the evening to provide similar assistance.  Ms AS told us that when TM was asked how she would manage to use the bathroom during the day, her response had been that she would simply not drink anything so that she would not need to use the toilet.  Ms AS' view was that TM had not properly considered the realities of her life, or did not understand what they were.[58]  She was clearly concerned about TM's ability to make reasonable decisions in those circumstances.

[58] ts 53, 17 December 2020.

73There was nothing to cast doubt on the veracity of the evidence given by TM's family and the genuineness of their concerns.  We accept the evidence of Mr DM, Ms AS and Ms NM as to their observations of TM's decision making ability over time.  Their evidence is consistent with the view that TM is incapable of making reasonable judgments about more complex aspects of her estate, and about more complex personal decisions.  They did not suggest that TM lacked the capacity to make decisions about simpler financial or personal matters. 

Evidence of WABS staff and other support workers

74The WABS report of 2 November 2020 (WABS Report) identified various matters of concern noted by WABS staff in relation to TM's ability to make financial decisions:[59]

·      'When [TM] first came to live at WABS she … made her own decisions and [paid] all her bills';

·      'During the past 12 months there was a marked deterioration in her ability to make her payments independently';

·      'Prior to COVID-19 she would regularly leave home independently spending a substantial time at COLES shopping for 'junk' food which she consumed in large quantities';

·      '[TM] also watches TV throughout the night and continues to make multiple online purchases – which her family state – she financially can't afford'; and

·      '[TM] was also denied her scripts to be filled by her regular pharmacy due to owing 3-4 months of unpaid scripts.  This matter was finally sorted when she asked for support from her sister to either pay or assist her to make the payments'.

[59] WABS Report, page 3.

75As for her decision making capacity in other contexts, the WABS Report noted that TM 'is able to forward plan and to make decisions on the spot when supported to do so' but that 'without ongoing reminders and verbal prompting from staff, [TM] will forget arrangements or any appointments she has made'.[60]  The WABS Report also noted that TM 'requires support to go out after dark or when going to unfamiliar venues, due to both poor vision and short-term memory loss'.[61]

[60] WABS Report, page 4.

[61] WABS Report, page 5.

76The WABS Report noted that TM:[62]

… demonstrates that she has little insight into her own condition believing that she is more capable.

…

While there have been some improvements since she has had her medication reduced … [TM] does have a progressive brain function deterioration which is presenting after her previous major stroke some years ago.

She does have good and bad days and … [has] shown an increase of poor cognitive function even during her good days.

[TM] is unaware of the impact of her medication levels on her ability to function.

[62] WABS Report, page 6.

77Ms SK explained that earlier in 2020, staff of WABS had been very concerned about TM's health.  While TM's health had since improved, especially following a significant reduction in TM's medication,[63] WABS staff still remained concerned that TM still lacked insight into her limited ability to do things independently.  Ms SK explained that that was evident in TM's view that she would be able to return to live in the Unit.  Although that issue had been thoroughly explored with TM's NDIS support co-ordinator, and occupational therapist, it was not considered an option moving forward.[64]  Instead, SDA housing was considered a more realistic option for TM.[65]

[63] WABS Report, page 5.

[64] ts 34, 17 December 2020.

[65] ts 34, 17 December 2020.

78In relation to financial decision making, Ms SK explained that TM was paying some of her own bills.[66]  Ms SK's understanding was that the major concern in relation to TM's decision making related to longer term planning in relation to the Unit.[67]  As to TM's ability to manage her financial affairs over time, Ms SK deferred to TM's family, who were able to give evidence over a lengthier period than that during which WABS staff had been assisting TM.[68]

[66] ts 36, 17 December 2020.

[67] ts 36, 17 December 2020.

[68] ts 35, 17 December 2020.

79Ms SK's view was that TM would be able to make decisions in relation to personal matters, provided she was given support to do so.  That was sometimes difficult as TM was reluctant to disclose information to support staff.[69]  Ms SK acknowledged that the NDIS system was complicated for everybody but indicated that TM had a good relationship with her support co-ordinator and that TM had invited WABS staff to provide her with support in planning meetings.  Ms SK's evidence was that with that assistance, TM was able to make her own decisions from the options available to her.[70]

[69] ts 35, 17 December 2020.

[70] ts 36, 17 December 2020.

80The evidence from Ms SK, together with the WABS Report, was consistent with the medical evidence, and the evidence from TM's family, that TM had cognitive difficulties which fluctuated somewhat, but showed a gradual decline over time.  This decline could be seen in a decreasing ability to manage her finances, and in a lack of insight into her care needs, which had the potential to impact on more complex decision making about personal matters.  We accept that evidence. 

81However, to the extent that Ms SK expressed views about TM's capacity to make decisions, we note that her evidence was largely qualified in that it assumed that TM could make decisions in a supported decision-making context. We place less weight on that evidence because in determining the question of capacity, the GA Act requires us to consider TM's ability to independently make decisions about personal and financial decisions.

82For completeness, we note that we have not given any weight to concerns expressed in the WABS Report over TM's tendency to purchase junk food or to engage in late-night television shopping (which TM disputed[71]), other than in one respect.  That is that in so far as TM has in the past purchased items she cannot afford, having regard to her limited budget, that may be (but is not inevitably) consistent with a cognitive limitation bearing on TM's ability to identify a budget, to plan for expenditure which is within her means, and to assess the wisdom of purchases with that budget in mind.  Otherwise, concerns about TM's choice of discretionary purchases appear to us to be attributable to differences of views as to what constitutes wise spending choices.  As we have already observed, people have the right to make decisions which others may regard as unreasonable or unwise, provided that they have the capacity to make those decisions.

[71] ts 28, 17 December 2020.

83Ms AR, who is TM's NDIS support co-ordinator, also gave evidence.  Her evidence, based on her interactions with TM over the previous year, was that TM 'understands what you say to her, she retains certainly a large portion of what you've explained to her, and I believe she makes decisions that are ultimately in her best interest'.[72]

[72] ts 37, 17 December 2020.

84Ms AR addressed the question of TM's capacity to make judgments about personal matters, by reference to the question of accommodation.  Ms AR's evidence was that while it was TM's preference to move back to the Unit, she had acknowledged to Ms AR that she understood that that would not be the best option for her, unless her physical health improved.  Ms AR pointed out that TM had been living at WABS for four years without a guardianship order in place, and that TM could have insisted on returning to the Unit in that time, but recognised that the safest option was for her to stay at WABS.  In those circumstances, Ms AR's evidence was that she had not seen TM experiencing difficulties in making personal decisions that were in her best interests.[73]

[73] ts 38, 17 December 2020.

85We accept AR's evidence as truthful, and that it reflected her genuinely held views, but the weight we have given to it, in relation to our determination of TM's decision­making capacity, has been tempered by two considerations. First, AR has worked with TM during the year prior to the review hearing, but appears to have done so only in the context of co-ordinating TM's NDIS support, rather than in a context where AR has had an opportunity to observe TM engaging in decision making in relation to a range of personal or financial matters in her daily routine. Secondly, AR's evidence as to TM's decision-making ability was drawn from her observations of TM in a supported decision-making context. As we noted in relation to SK's views, in determining the question of capacity, the GA Act requires us to consider TM's ability to independently make decisions about personal and financial decisions. AR's evidence as to the availability of decision­making support for TM is of greater relevance to the question of whether there is a need to appoint a guardian and an administrator, and we have taken it into account in that context.

TM's evidence

86TM's evidence was that she would like to be able to make decisions for herself, and felt she was capable of doing so.  However, we are unable to give weight to TM's opinion of her own ability as she is not a reliable witness on that question.  Nevertheless, TM's evidence was of assistance to us because it tended to confirm the accuracy of the observations recounted by others, and supported the conclusion that Dr DK's opinion as to TM's decision­making ability was accurate. 

87In relation to matters of personal care, such as taking medication, TM explained that she used dosette boxes and webster packs, and that she recorded things in her diary to help her remember.[74]  However, when pressed about how she would go about dealing with decision making in contexts where more complex decisions may be required, TM could provide only a superficial explanation of what she might do.  For example, we asked TM how she would deal with the various steps in the NDIS funding process, and she told us that it would be 'a good challenge'[75] and that 'I won't have a problem'.[76]  She said that she 'would just work my way through it.  Start at the beginning … and approach the NDIS and ask them what I need to do to complete whatever it is they need'.[77]

[74] ts 28, 17 December 2020.

[75] ts 25, 17 December 2020.

[76] ts 25, 17 December 2020.

[77] ts 25, 17 December 2020.

88As to where she wanted to live, TM's evidence was that she wanted to 'hang onto [the Unit] for a while'[78] because she would 'like to try to get [her] body in order and then get back to it'.[79]  TM clearly remained hopeful that she may be able to improve her physical mobility sufficiently to permit her to return to live in the Unit.[80]  She understood that she could not return to live in the Unit at present, as it would require the installation of disability aids to assist with her mobility.  However, she was hopeful that she could rent SDA housing, which would permit her more independent living, while those modifications were made to the Unit.[81]  Ms Drake submitted that as TM had rehabilitated herself after two strokes it was reasonable for TM to retain hope that she might regain some of her previously physical capacity.[82]  With respect, in the absence of any supportive medical evidence, that submission was more aspirational than realistic. 

[78] ts 30, 17 December 2020.

[79] ts 30, 17 December 2020.

[80] ts 30, 17 December 2020.

[81] ts 32, 17 December 2020.

[82] ts 57, 17 December 2020.

89TM's evidence in this respect did not appear to us to involve insight into the extent and permanence of her physical limitations.  (As we have already noted, TM presently requires the use of a hoist, and the assistance of support workers, to move in and out of her wheelchair.)  We were left with little confidence that TM is able to understand the implications of her physical limitations and to make judgments about what assistance she would need in relation to daily living, in light of those limitations. 

90At times, however, it appears that TM has greater insight into her position.  In her report, Ms KL noted that she met with TM and had a lengthy private discussion with her.  Ms KL noted in that report that TM 'gave reasonable and relative[ly] direct responses to all questions'.[83]  Ms KL reported that in the course of that discussion, TM acknowledged that 'her memory is not as good as it has been but she is sensible.  She has not lost the capacity to think and she does the best she can'.[84] 

[83] Report of Ms KL, Office of the Public Advocate, dated 10 November 2020, page 8.

[84] Report of Ms KL, Office of the Public Advocate, dated 10 November 2020, page 8.

91In relation to financial matters, TM was able to outline for us in broad terms the assets forming part of her estate.[85]  TM reported that she had a credit card and paid it off by doing a direct debit from her bank account.[86]  We asked TM about her budget and the amount of surplus funds which she had available each fortnight for discretionary spending.  Her evidence, once again, was vague.  She told us that she has 'a little bit'[87] of money for spending and she had 'sorted it all out'.[88]  As for the evidence of others that TM often forgot to pay bills, her evidence was that 'I've got all these folders that are marked … bills, pharmacy bills, whatever.  And I just put the bills in there.  And then at the beginning of each week, I … go through them all'.[89]  Her evidence was that she currently pays the power bill for the Unit, the body corporate fees for the Unit, and her phone bill.  She reported that the pharmacy would send her an account for her medication, and she paid it.[90]  The latter evidence was inconsistent with the evidence of Ms AS, whose evidence on this issue we regarded as more likely to be reliable. 

[85] ts 29, 17 December 2020.

[86] ts 31, 17 December 2020.

[87] ts 29, 17 December 2020.

[88] ts 29, 17 December 2020.

[89] ts 30, 17 December 2020.

[90] ts 31, 17 December 2020.

92In the course of Ms KL's inquiries in relation to this matter, she discussed the Unit with TM.  TM told Ms KL that she wanted to hold on to the Unit as an asset.  One of the difficult consequences of that decision is that the Unit cannot be rented out, as that is prohibited by the rules of the strata company.  TM told Ms KL that that was the position, and acknowledged that if she retained the property she would also be liable for body corporate fees.  On the other hand, TM was aware that if she sold the Unit that may have implications for her pension entitlement.[91]  That suggested that TM does have some appreciation of the financial consequences of her determination not to sell the Unit.

[91] Report of Ms KL, Office of the Public Advocate, dated 10 November 2020, page 7.

93We recognise that a decision to sell the Unit may reflect an unwillingness on TM's part to accept that she is highly unlikely to regain the independence she once had.  There is a natural grieving process for anyone faced with that realisation, whatever the cause of the loss of independence may be.  In those circumstances, we do not consider that TM's determination not to sell the Unit can properly be regarded as clear evidence of a loss of capacity to make reasonable judgments in relation to financial matters.  It may, equally, be evidence of stubbornness, borne of pride and grief as to her loss of independence, as much as of an unrealistic hope based on a lack of insight into her own physical limitations. 

Conclusion in relation to TM's decision-making capacity

94The Tribunal's approach in assessing evidence as to capacity was recently summarised by the Full Tribunal in PG[92] in the following way:

The statutory presumption of capacity constitutes the starting point in any application under the GA Act where the decision-making capacity of a [proposed represented person] is in issue. A [proposed represented person] need not prove that they have decision-making capacity. The Tribunal starts from the position that the [proposed represented person] has capacity (by virtue of the statutory presumption). That remains the position unless and until a lack of decision-making capacity is proved. The question is whether the evidence before the Tribunal establishes that the [proposed represented person] does not have decision-making capacity. The standard of proof applied by the Tribunal is, of course, the civil standard. However the significant consequences of a finding that a [proposed represented person] does not have decision-making capacity are such that clear and cogent evidence will be required to establish the facts on which that conclusion depends, in order for the Tribunal to be satisfied on the balance of probabilities that the [proposed represented person] does not have decision-making capacity.

[92] PG [2021] WASAT 81 [97].

95Ms Drake submitted that the extent of the evidence in relation to TM's decision­making capacity was insufficient in assessing the degree and the significance of the risk of unreasonable decisions being made by TM.[93]  We are unable to agree.  We are of the view that the evidence of Dr DK was clear and cogent evidence that TM has cognitive limitations arising from her brain injury, which are evident in her loss of short term memory, and in her slower processing of information.  The evidence of TM's family, drawn from observations over many years, was also clear and cogent, and was consistent with Dr DK's opinion. 

[93] ts 59, 17 December 2020.

96That having been said, this is a difficult case.  Having regard to the evidence we have discussed above, it is apparent that TM's memory loss can make even simple tasks, such as the daily use of medications, more challenging.  However, those difficulties can be managed by strategies to enable TM to keep track of what she has done, and can certainly be made easier with support.  Furthermore, TM has some capacity to make decisions, certainly simple ones, and with support she may be capable of making more complex decisions.  On the other hand, TM's history of spending beyond her means, and of getting into debt, is consistent with an inability to remember her limited income, and to quickly process information about the implications of expenditure, when making decisions about expenditure.  In addition, TM's lack of insight into her physical limitations and the extent of the assistance that she needs in her daily living, has also manifested in difficulties in reasoning to how those limitations will impact on significant and complex decisions about her accommodation.  Those deficits are also likely to impact in the context of negotiating the complex system of NDIS funding and the myriad of decisions that may be required to secure the services that TM needs, to ensure that she can live as independently and autonomously as is possible in her circumstances. 

97We make the following findings.  We find that TM is a person over the age of 18 years.

98Having regard to the evidence of Dr DK, there is no doubt that TM is a person with a mental disability, as defined in the GA Act, in that she has an acquired brain injury as a consequence of the stroke or strokes she has suffered, and we so find.

99Having regard to the evidence of Dr DK, which was supported by the evidence of TM's family as to their observations over many years, we are also satisfied that TM is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person, and that she is in need of oversight, care or control in the interests of her own safety.  In making that finding, we recognise that TM is capable of making simple decisions in relation to personal matters, and that in a supported environment, she may be capable of making somewhat more complex decisions.  However, we are satisfied that she is not capable of independently making complex decisions about personal matters which require reasoning of a higher order.  

100Having regard to the evidence of Dr DK, and to the evidence of TM's family as to their observations, we are also satisfied that, by virtue of her mental disability, namely her acquired brain injury, and the cognitive limitations that that injury has caused (and which are evident in her difficulties with memory, and in the speed of her processing of information) TM is unable to make reasonable judgments in respect of matters relating to all of her estate, other than for simple financial decisions.

101We are, therefore, satisfied, and we find, that the requirements of s 43(1)(a) and (b) and of s 64(1)(a) of the GA Act are met in this case.

102We turn, then, to the next question we are required to consider, which is whether TM needs a guardian or an administrator to be appointed.

Is there need for guardian or an administrator to be appointed, or is a less restrictive means available to facilitate decisions by, or on behalf of, TM?

103Each of s 43(1) and s 64(1) makes clear that even if a person lacks decision making capacity, the Tribunal must be satisfied that there is a need for a guardian or an administrator, before one can be appointed. That criterion reflects the principle in s 4(4) of the GA Act that a guardianship or administration order shall not be made if the needs of the person could be met by other means less restrictive of their freedom of decision and action.

104Mr DM opposed the pursuit of informal decision making as a less restrictive option for meeting TM's needs.  He gave evidence that TM's family had endeavoured to pursue the least restrictive option for providing assistance to TM for many years.  However, that had proved to be a source of frustration for family members because when TM received advice that she did not want to hear or with which she did not agree, she was selective about the advice on which she acted.[94]  With the greatest of respect to DM and to TM's family, while we understand that frustration, it is not a reason for ruling out less restrictive options for decision making if they are open.

[94] ts 45, 17 December 2020.

105Ms KL, from OPA, submitted that while there was an absence of capacity, a less restrictive option which was open in relation to personal decision making was for TM to make decisions with informal support from others.  On that basis, she submitted that the guardianship order could be revoked.

106In respect of financial decision making, Ms KL submitted that the preferable course was a limited administration order where TM could have the flexibility to make decisions in relation to ordinary expenditure, but where she had the oversight of an administrator in relation to complex decision making, especially in relation to whether the Unit should be sold.[95]  

[95] ts 43, 17 December 2020.

107The advent of the NDIS, in particular, has increased significantly the practical support which is available for people in our community whose disabilities increase the challenges of daily living.  Ms Drake submitted that 'the advent of the NDIS has provided a different array of options for [TM], including the independent Support Co-ordinator role that can provide facilitation of access to new accommodation options, as well as some planning for the future'.[96] Ms AR told us that as part of her role as TM's NDIS support co-ordinator, she was able to assist to identify support which may be available for TM for informal decision making.[97]  Ms Drake also saw a continuing role for DDWA in providing advocacy for TM, especially in relation to TM's transition to SDA housing. 

[96] Development Disability WA report dated 30 November 2020, page 3.

[97] ts 39, 17 December 2020.

108These sources of support are likely to provide ways in which TM can be assisted to make decisions, and at the very least, to ensure that TM has as much input as is possible into significant decisions in her life.  However, in our view, informal decision making is not an adequate alternative to the appointment of a guardian and an administrator in this case, for three reasons.  First, the formal authority of a guardian or an administrator may be required in some situations.  Two immediately spring to mind.  If some of TM's assets need to be sold or restructured (for example, if ultimately the Unit is sold, and alternative housing purchased for TM) then the formal authority of an administrator may be required for the execution of documents relating to such transactions.  Similarly, as the events of 2020 demonstrated, TM has experienced very poor health in the past, and the authority of a guardian will be in TM's best interests if she is sufficiently unwell as to be unable to make any decisions in relation to treatment. 

109Secondly, there are presently no permanent arrangements in place to assist TM with informal decision­making support on an ongoing basis. 

110Thirdly, while supported decision making will maximise TM's autonomy in relation to less complex decisions, and will ensure that she has maximum input into complex decisions, we are not satisfied that even with such support TM is capable of making complex and significant decisions, such as evaluating alternative accommodation options, deciding whether to dispose of her existing assets, assessing the implications of doing so for her pension and taxation, and so on.  

111We are, therefore, satisfied that TM is in need of a guardian and is in need of an administrator.

112We turn next to consider the extent of the functions and powers which should be given to the guardian and administrator in this case.

Plenary or limited guardianship?

113We are not persuaded that a plenary guardianship order is required in this case. The GA Act provides that a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient to meet needs of a represented person.[98]  TM has capacity to make some decisions for herself.  What is required is the appointment of a guardian with authority to make more complex personal decisions concerning TM.[99]

[98] GA Act s 4(5).

[99] Cf GA Act s 45(2), s 46.

114The Orders appointed a limited guardian with the functions of deciding where TM should live, whether permanently or temporarily, with whom she should live, to make treatment decisions for her, and to determine the services to which TM should have access.

115At the date of the hearing, TM's accommodation was under review, and a transition to SDA housing was under consideration.  Decisions in relation to TM's accommodation may continue to be required, until an option is found which best suits TM and her needs.  An accommodation function, which includes deciding with whom TM should live (whether in group accommodation or otherwise) should be conferred on the guardian.

116We are also satisfied that a guardian should be given a treatment function, to make treatment decisions in relation to TM, including in any circumstance where she may be rendered temporarily incapable of making any decisions (should she suffer another bout of infection, as occurred last year).

117We are satisfied that a guardian should also be given the function of deciding the services to which TM has access, which is necessary and in TM's best interests, having regard to the complexities of the NDIS system.

118None of these decision making functions will remove the need for informal support to TM in her every day living, of the kind which of late has been provided by the staff of WABS, and which can be facilitated by TM's NDIS support co-ordinator in the future.  Nor does this decision­making authority eliminate the scope for TM to make decisions for herself with respect to her day to day living, with informal support from her family and support workers if required.

Plenary or limited administration?

119We are satisfied that an administrator with plenary authority should be appointed in relation to TM.[100]  However, we consider that the administrator should be directed to undertake a trial whereby TM is given the scope to manage her day to day financial decisions, with assistance if required, such as in the payment of bills, decisions about discretionary spending and so on.  In that way, the plenary administrator would retain authority to make significant financial decisions, and to retain overall oversight over TM's financial decisions, but TM's financial autonomy over less complex decisions would be maintained to the greatest extent possible.

[100] GA Act s 69, s 71.

120We turn, next to the question of who should be appointed TM's guardian and administrator.

Who should be appointed TM's guardian and administrator?

121Section 44 of the GA Act sets out criteria for who may be appointed a guardian. The appointee must be an individual over the age of 18 years who has consented to act and who in the opinion of the Tribunal will act in the represented person's best interests, is not in a position of having a conflict of interest with the interests of the represented person, and is otherwise suitable to act.[101]  A proposed appointee is not regarded as having a conflict of interest simply by virtue of the family relationship.[102]  For the purposes of judging the suitability of a proposed appointee to act as guardian, the Tribunal is required to take into account as far as possible a number of considerations, including the desirability of preserving existing relationships within the represented person's family, the compatibility of the proposed appointee with the represented person and with any administrator for that person, the wishes of the represented person and whether the proposed appointee will be able to perform the functions of a guardian.[103]

[101] GA Act s 44(1).

[102] GA Act s 44(3).

[103] GA Act s 44(2).

122Similarly, s 68 of the GA Act provides that an administrator needs to be an individual of, or over, the age of 18 years or a corporate trustee, who has consented to act and who in the opinion of the Tribunal will act in the best interests of the person in respect of whom the application is made and is otherwise suitable to act as the administrator of the estate of that person. For the purposes of establishing suitability, the Tribunal has to take into account, as far as possible, the compatibility of the proposed appointee with the represented person, the wishes of that person, and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.[104] 

[104] GA Act s 68(3).

123In this case, Member Leslie had appointed Mr DM and Ms AS as TM's guardians and administrators.  They are both also willing, although it is probably closer to the truth to say that they are reluctantly willing, for the reasons set out below, to undertake that role.

124The evidence before us left no doubt that the fact that the Initiating Application had been made, together with the appointment of Mr DM and Ms AS, had put a considerable strain on the relationship between TM and her siblings.  

125Mr DM told us that there was 'no question that the family dynamic has changed and it's very difficult for all of us.  We didn't, for a moment, expect that it would be easy'.[105]  Mr DM's evidence was that TM's family had agreed to make the application to the Tribunal 'because we think it's our responsibility.  It's causing everybody an enormous amount of pain and it will continue to cause everybody an enormous amount of pain'.[106] Mr DM frankly admitted that 'the current arrangement is causing damage to family relationships'.[107]

[105] ts 48, 17 December 2020.

[106] ts 49, 17 December 2020.

[107] ts 51, 17 December 2020.

126Ms AS' evidence was that her appointment as one of TM's guardians and administrators had not affected her relationship with TM because Ms AS does not live in Perth, and her relationship with TM had already been distant because she did not live nearby.[108] 

[108] ts 55, 17 December 2020.

127Ms NM acknowledged that the question of whether a family member should be appointed TM's guardian or administrator was 'a significant decision'.[109]  Ms NM acknowledged that 'it would certainly be better for us' if none of TM's family members were appointed her guardian or administrator.[110] 

[109] ts 49, 17 December 2020.

[110] ts 51, 17 December 2020.

128At the hearing before Member Leslie in July 2020, TM told the Member that she needed some help, and that if a decision maker was to be appointed for her, she 'would probably like my eldest brother [Mr DM] to be there for me'.[111]  Later in the same hearing she told the learned Member that she thought it 'would be a terrific idea'[112] if Mr DM and Ms AS were appointed, so that they could work together with TM to make decisions.  We note, however, that TM was in hospital at the time of that hearing.  It is clear that her views now are very different from those she expressed on that occasion.

[111] ts 8, 16 July 2020.

[112] ts 23, 16 July 2020.

129Ms KL also spoke with TM as part of the inquiries she made at the Tribunal's request.  In her report, Ms KL noted that TM 'is angry with her siblings, [Mr DM, Ms AS and Ms NM].  She feels set up. … She does not want family involved'.[113]  Ms KL reported that one of TM's concerns in seeking a review of the Orders had been to regain some control back from her family members.[114]  Ms KL noted that the Orders had

a significant impact on the relationships [TM] has with her siblings.  [TM] clearly expressed to [Ms KL] that she does not want any family involved in decision making for her, which she highlighted was the main reason for her [review] application.  [TM] does not believe she needs a guardian, however when [Ms KL] asked her who she would choose to be her guardian if the Tribunal determined she was still in need of one, she replied "What do you think?"  [KL] discussed the option of an independent appointment of the Public Advocate, … which [TM] stated she would prefer.[115]

[113] Report of Ms KL, Office of the Public Advocate, dated 10 November 2020, page 9.

[114] ts 43, 17 December 2020.

[115] Report of Ms KL, Office of the Public Advocate, dated 10 November 2020, page 6.

130Ms KL also asked TM who she would choose to make decisions for her if the Tribunal determined she was in need of a guardian and administrator.  Initially TM appeared to regard Ms AS as suitable, and noted that she had been a bank manager.  But when Ms KL discussed with TM the option of appointing independent decision makers, the Public Advocate and the Public Trustee, TM stated that 'that would suit me down to the ground'.[116]  Ms KL reported that in a subsequent telephone conversation, TM confirmed that 'she does not want a guardian or administrator, however if they are appointed she wants independent appointments'.[117]

[116] Report of Ms KL, Office of the Public Advocate, dated 10 November 2020, page 10.

[117] Report of Ms KL, Office of the Public Advocate, dated 10 November 2020, page 10.

131In her evidence to the Tribunal on the review, TM left us in no doubt that she did not want her siblings to be appointed as her guardians and administrators.  TM told us that since she had had her strokes 'all I've heard from my family is "You can't do this, you can't do that"… .  They always know best what's for me, but I don't get a decision in anything.  I would just like to get on with my life'.[118]

[118] ts 61-62, 17 December 2020.

132In her report, Ms KL expressed the view that the existing Orders are not operating in TM's best interests 'as they are causing a significant strain on family relationships'.[119]  Ms KL thus recommended that the Orders be amended to appoint the Public Advocate as TM's limited guardian, and the Public Trustee as TM's plenary administrator.[120]

[119] Report of Ms KL, Office of the Public Advocate, dated 10 November 2020, page 11.

[120] Report of Ms KL, Office of the Public Advocate, dated 10 November 2020, page 11.

133As we have already said, part of the damage to TM's family relationships appears to have resulted from the very fact that the Initiating Application was made.  Consequently, Ms NM's view was that regardless of the outcome of the review, TM would not be happy with some members of her family.[121]  Be that as it may, in our view, the appointment of TM's family members as her guardians or administrators can only serve to exacerbate the existing strains in those family relationships that have developed since the Initiating Application was made.  We find that it is not in TM's best interests for that to occur.

[121] ts 52, 17 December 2020.

134Furthermore, as a result of her unhappiness about the appointment of Mr DM and Ms AS as her guardians and administrators, TM has been unwilling to co-operate with her siblings since the Orders were made.  Ms AS' evidence was that since the Orders were made by the Tribunal, TM was 'not prepared to work with us and there has been very little connection with the family on her behalf because of what has happened'.[122]  Ms AS also recognised that if TM did not wish to work with her family then that would make a family appointment difficult.[123]

[122] ts 54, 17 December 2020.

[123] ts 55, 17 December 2020.

135In those circumstances, while we have no doubt that as a matter of intellect, energy and commitment, Mr DM and Ms AS are capable of performing the functions of a guardian and administrator, we are concerned that TM's unwillingness to co-operate with them would hinder their performance of the functions of those roles. 

136In all of these circumstances, we find that Mr DM and Ms AS are not suitable to act as TM's guardians or administrators. 

137As there is no other person who is suitable for appointment and willing to act, the Public Advocate should be appointed TM's limited guardian, with the functions we have already discussed.  The Public Trustee should be appointed TM's plenary administrator.

138We hope that TM will come to appreciate that her guardian and administrator will be required to make decisions in her best interests, and will be best placed to do that with input and co-operation from her. 

Duration of the orders to be made

139The Tribunal is required to nominate a period of time by which a review of a guardianship order and an administration order must be made.[124] The maximum time allowed under the GA Act is five years.

[124] GA Act s 84.

140The evidence at the hearing was to the effect that TM's accommodation arrangements were being reviewed, and at the time of the hearing, a transition to SDA housing was being considered.  In those circumstances, we are of the view that the orders make should remain in place for 2 years and then be reviewed.  That appears to us to be an appropriate period in which to gauge whether there is any change required in relation to the functions of the guardian and administrator, in TM's best interests.

Orders

141We therefore make the following orders:

1.The orders made by the Tribunal on 16 July 2020 are set aside and the following orders are made.

Guardianship

2.The Tribunal declares that the represented person, [TM] is:

(a)incapable of looking after her own health and safety;

(b)unable to make reasonable judgments in respect of matters relating to her person;

(c)in need of oversight, care or control in the interests of her own health and safety; and

(d)in need of a guardian.

3.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia, is appointed the limited guardian of the represented person with the following functions:

(a) to decide where the represented person is to live, whether permanently or temporarily;

(b)to decide with whom the represented person is to live;

(c)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA); and

(d)to determine the services to which the represented person should have access.

4.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.

5.The guardianship order is to be reviewed by 7 July 2023.

Administration

6.The Tribunal declares that the represented person, [TM], is:

(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and

(b)in need of an administrator of her estate.

7.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).

8.The administrator is authorised to expend up to a total amount of $500.00 per annum on gifts on behalf of the represented person.  

9.The Public Trustee is directed to undertake a trial by which arrangements are made to enable the represented person to be responsible for the payment, from her pension, of her living expenses and outgoings, other than those outgoings for which a direct debit is able to be organised by the Public Trustee.

10.If at any time the Public Trustee forms the view that the above arrangement is not working in the represented person's best interests the arrangement may be suspended pending the next review.

11.The administration order is to be reviewed by 7 July 2023.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

GD

Associate to the Honourable Justice Pritchard

7 JULY 2021