WW
[2024] WASAT 59
•12 JUNE 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: WW [2024] WASAT 59
MEMBER: MS R BUNNEY, MEMBER
HEARD: 20 MAY 2024
DELIVERED : 5 JUNE 2024
PUBLISHED : 12 JUNE 2024
FILE NO/S: GAA 1341 of 2024
WW
Represented Person
Catchwords:
Guardianship – Section 84 periodic review – Best interests represented person – Post-traumatic stress disorder – Stroke – Conflict of interest – Concerns about coercion – Social isolation – Break down of significant supportive relationships – Concerns about use of NDIS funding – Wish for a specific type of Government housing – Specialist disability accommodation – Intention to take represented person overseas – Need for continued independence in decision-making – Reappointment of Public Advocate
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(6), s 4(7), s 40, s 43(1)(b), s 43(1)(c), s 44(5), s 51(2)(h), s 84, s 86, s 87
Result:
Public Advocate reappointed limited guardian
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
(The application was heard on 20 May 2024 (Hearing). An oral decision was delivered on 5 June 2024. The following reasons comprise the reasons that were delivered orally, edited only to anonymise parties, to add relevant authorities, footnotes, legislation and headings, correct grammatical errors and some infelicity of expression, without variation to the substance thereof).
Introduction
WW is a woman in her 70s who was born in Africa. Her son, YY, lives in Western Australia with her, and her three other children continue to live in Africa. She experienced complex and significant trauma during the civil war in her country and came to Australia as a refugee. She initially lived in Western Australia, and then interstate for three years before returning to Western Australia in late 2020.
The impact of the series of traumas has resulted in a diagnosis of post‑traumatic stress disorder (PTSD), with symptoms including emotional instability, hypervigilance and frequent episodes of flashbacks. WW is hypersensitive to sounds that trigger anxiety and will stay awake at night as she is afraid of noises and people. It is difficult for WW to trust people.[1]
[1] Report dated 20 May 2021 prepared by clinical psychologist Dr IP (Clinical Psychologist Report).
In 2008, WW had a stroke which caused an acquired brain injury and affected her mobility and ability to function independently. WW now uses an electric wheelchair. WW is less able to manage her PTSD symptoms since the stroke which has compromised her executive functioning, her ability to regulate her emotions and how she is able to manage her social interactions.[2] WW told her psychologist that since the stroke, she has more flashbacks, is more sensitive to reminders and has heightened mistrust.[3] WW has also experienced cognitive decline since the stroke.[4]
[2] Clinical Psychologist Report, page 4.
[3] Clinical Psychologist Report, page 3.
[4] Occupational therapy neuropsychological assessment dated July 2019, completed interstate; Clinical Psychologist Report, page 3.
Apart from her son YY, WW has had three significant supportive relationships in her life since living in Western Australia:
(a)DD who met WW around the time she had the stroke. DD introduced WW to the National Disability Insurance Scheme (NDIS) and initially acted as her support coordinator without payment. DD assisted WW in obtaining her Homeswest property in Western Australia. DD also helped WW move interstate and then return to Western Australia;
(b)FF who has been friends with WW since before the stroke and is from the same area in Africa. FF has had regular contact with WW and would visit her regularly. FF was appointed by the Tribunal to be WW's guardian for a number of years, most recently as her medical treatment guardian in 2023; and
(c)TT and his wife RR, who became WW's support workers and host‑carers. WW trusts TT as she knew him in Africa from her time in the refugee camp where he looked after everyone in the camp.
It is consistently noted in documents filed with the Tribunal that WW has difficulty negotiating her own needs and finds it difficult to be subjected to the demands or requirements of others.[5] It is also noted extensively in the documents that WW and YY want to live together independently.[6]
[5] Clinical Psychologist Report, Service Provider Report prepared by NDIS Services Manager dated 30 April 2021; Service Provider Report by Specialist Support Coordinator dated 30 March 2023; Service Provider Report dated 5 April 2024 by occupational therapist Ms M.
[6] NDIS plan, Physiotherapy Service Report dated 5 December 2022; Service Provider Report by Specialist Support Coordinator dated 30 March 2023; Delegated Guardian Report dated 10 May 2024 (Delegated Guardian Report).
The three recurring issues for WW, which were discussed at Tribunal hearings in 2021, 2023 and 2024 were:
(a)where she will live;
(b)who will provide her with services under her NDIS plan; and
(c)the perceived conflict of interest with all her supports being from her African community.[7]
[7] Noting that such an arrangement could be in WW's best interests pursuant to s 51(2)(h) of the GA Act.
I observed in my involvement in WW's matters in May 2023 and May 2024 that she had become increasingly socially isolated. By March 2023, her supportive relationship with DD had ended and by February 2024, her relationship with FF had also completely broken down.
Accommodation from 2008 to 2020
WW worked in Western Australia for around five years until she had the stroke in December 2008. She was hospitalised for approximately nine months and was admitted to a Brain Injury Rehabilitation Service for over a year. She was later allocated a Homeswest property to transition back to living in the community. DD was instrumental in assisting WW to obtain the Homeswest property and ensuring that proper supports were in place.
WW asked DD to help her connect with a friend from her refugee days who was living interstate. A holiday was arranged to see her friend but WW and YY decided to stay, which meant it was necessary for DD to give up WW's Homeswest property in Western Australia. When WW decided to return to Western Australia in late 2020, DD co-signed a private rental agreement with WW (Lease).[8] DD arranged to use short/medium term NDIS funding to pay the rent. WW's preference was to obtain another Homeswest property but given the waiting list times, that was not possible.
[8] DD co-signing the Lease with WW was a requirement of the landlord.
First application to the Tribunal in 2021
The first application for a guardianship order was filed in March 2021 by WW's NDIS support coordinator (Applicant SC).[9] The application was filed after Applicant SC had been 'let go' by WW. The application stated that WW '... seems to be controlled in all aspects of life by numerous people – so-called friends who have exhausted her NDIS funding ... Dynamics are extreme and [WW] appears not to have the supports she requires. Concerns pertain to financial exploitation'.[10]
[9] This application was made pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) although WW initially came to the attention of the Tribunal in 2012 due to concerns about her ability to manage her finances. The Public Trustee was appointed as WW's administrator for around 18 months, with the administration order being revoked in October 2013.
[10] Application filed by Applicant SC on 24 March 2021.
WW had engaged a new support coordinator (Second Support Coordinator) by the time of the Tribunal hearing of 27 May 2021. The Tribunal referred the matter to the Office of the Public Advocate (Public Advocate) for investigation and report by an investigator advocate (Investigator K), who filed a report dated 25 May 2021 (2021 OPA Report).
WW had three carers in early 2021:
(a)TT was providing care for WW on Mondays during the day and overnight;
(b)RR was providing care for three days and overnights; and
(c)WW's daughter-in-law B was also providing care for three days and overnights.
The Applicant SC was concerned that WW's NDIS plan and support workers were not managed effectively as it was 'plan managed' and her carers were alleged to have been financially exploiting WW as they were being paid above the NDIS agreed rate. The Applicant SC reported these concerns to the NDIS, who did an early plan review and changed the funding to 'agency managed'. WW's three carers were then registered as carers with the Second Support Coordinator.[11]
[11] Set out in report of Investigator K. I note that documents filed in the 2023 and 2024 Tribunal proceedings by service providers raised allegations about WW being exploited by NDIS workers interstate. However, after reviewing all documents filed since 2012, the first concerns raised in relation to WW being exploited by NDIS workers were in the documents filed as part of this application by the Applicant SC in March 2021.
In May 2021, the Lease was about to expire, so WW was at risk of homelessness. WW's NDIA planner, Mr D, was awaiting approval for specialist disability accommodation (SDA). However even if SDA was approved, there could still be a six-month wait for SDA, so there was a need to find somewhere for WW to live in the meantime.[12]
[12] Comments from Mr D were cited in the 2021 OPA Report, page 5.
WW told Investigator K that she wanted another Homeswest property using SDA funding. WW did not believe that she needed a guardian, however if it was deemed that she did need one, she wanted FF to be her guardian. FF was willing to be WW's guardian and was confident that she would be able to speak up for WW even if WW or her carers did not agree.[13]
[13] 2021 OPA report, page 8.
WW and YY both agreed that DD was WW's friend and was helping WW by providing oversight. DD told Investigator K that she had always had a harmonious relationship with WW, however she had seen a recent shift in WW's behaviour where WW was becoming suspicious of everyone.[14] DD believed that WW's carers were fabricating stories about DD and saying she was taking WW's NDIS funds, which WW seemed to believe. DD said that this was not true.[15]
[14] 2021 OPA report, page 2.
[15] 2021 OPA report, page 2.
Ms G, from the Second Support Coordinator, confirmed that WW was receiving support for five hours a day plus an overnight shift. Both Ms G and Mr D, the NDIA planner, agreed that WW was in need of a guardian to provide oversight to ensure that appropriate services were in place and that no one was influencing her.[16]
[16] 2021 OPA report, page 6.
TT told Investigator K that he planned to take WW to his house and look after her when the Lease expired.[17] TT initially informed Investigator K that he wanted to be WW's guardian. However, once the potential conflict of interest of TT being the guardian and a paid carer was explained, he advised Investigator K that he thought FF would be a good guardian.[18]
[17] 2021 OPA report, page 7.
[18] 2021 OPA report, page 8.
Investigator K's view was that WW was vulnerable, easily influenced and in need of oversight to ensure her living and support arrangements were appropriate to meet her complex needs. Investigator K's view was that it was in WW's best interests to have a guardian appointed to ensure that she transitioned to stable and safe accommodation in her own space, to assist with her recovery and improve her independence.[19] The Investigator stated that FF was a suitable candidate for appointment as guardian and the Tribunal appointed FF as WW's guardian to make decisions about accommodation, services and medical treatment (2021 Orders).[20]
[19] 2021 OPA report, page 7.
[20] The guardianship order appointed FF as guardian were initially made on 27 May 2021 to be reviewed in six months and the Public Advocate was requested to prepare a further report. At the hearing of 15 December 2021, the guardianship order appointing FF was confirmed and the review period was set for two years.
Host-carer arrangement – March 2022
When the Lease expired, WW and YY started living with TT, RR and their son in their rental property. The approved SDA funding at that time was only enough for a share house and WW did not want to live in a share house due to her past and fear of strangers.[21] WW and YY did not pay for rent or food for a period of time while living with TT and RR.[22]
[21] Supplementary Report prepared by Investigator K from the Public Advocate dated 14 December 2021, page 2.
[22] TT and RR were being paid to provide services to WW during this time.
WW had a significant increase in funding for core supports and she was happy to live with TT and RR. WW's new support coordinator, Ms P, was looking at using the flexible core support hours in a host-carer arrangement, which is what formally occurred when TT, RR and their son moved into a larger home in March 2022.[23] From that time, WW and YY were each contributing $260 each towards rent and also made a contribution towards utilities.[24]
[23] Functional capacity assessment dated 4 December 2022.
[24] Report prepared by Investigator M from the Public Advocate dated 12 May 2023 (2023 OPA Report), page 7.
WW was receiving support every day with all activities of daily living (bathing, grooming, toileting, personal care) and instrumental activities of daily living (community access, social support, social connectedness). WW would only allow RR to provide support with her personal care. WW would also access drop-in supports and community access from support workers (from the same background) to allow TT and RR to have a break from their caring role and to spend time with their own family.
Early review of the 2021 Orders filed in March 2023
In March 2023, DD filed an application to review the 2021 Orders due to concerns that WW was again subject to alleged abuse and control, with a conflict of interest between FF as WW's guardian and her support workers all being from the same community.[25]
[25] This application was made pursuant to section 86 of the GA Act. Leave was granted pursuant to s 87 of the GA Act for the review to occur.
DD says she had been approached by WW and YY in early 2023 to help them find alternative accommodation, as TT was not allowing WW to move out. DD said that WW was extremely unhappy in the current environment.[26] The matter was referred to the Public Advocate for investigation and report. The principal investigator advocate (Investigator M) filed a report with the Tribunal dated 12 May 2023.
[26] 2023 OPA Report, page 2.
DD says that FF was a close friend of TT's and had endorsed WW living in his home. TT's wife RR and FF's daughter (approximately 17 years of age) were WW's support workers so DD was concerned with a lack of independence and transparency with FF acting as the guardian. DD noted that over $100,000 of WW's core support funding was used for 'overnight supports' when in DD's view, that was not necessary as there were four adults living in the home with WW. DD's view was that those funds could be used to obtain SDA.
YY told the Investigator that his view was that independent housing would be best for his mother, but he was concerned that there was pressure on her to stay where they were. FF gave evidence that at the time, any SDA would not allow YY to live with WW, which is what WW wanted.
DD says that she arranged for WW to view alternative SDA properties and that TT refused to let WW leave his home to view them. DD said it was necessary to call the police. FF later attempted to obtain a violence restraining order to restrain DD on WW's behalf, but she was unable to do so as the guardianship order did not contain a legal function. Various allegations were made against DD, none of which were supported by the evidence filed with the Tribunal.
WW wanted to live on her own, however reports filed with the Tribunal have expressed the view that WW may be under pressure from TT because he was benefiting financially from the relationship, and due to WW's reliance on him. There was a concern that WW may be unable to say what she wants.
WW's specialist support coordinator (SSC) said that WW had an incorrect understanding about SDA, believing that an SDA model was like living in a nursing home, which did not appeal to her.[27] YY told Investigator M that WW was told that SDA was like a nursing home situation.[28] FF told Investigator M that WW had viewed some SDA properties but she had not liked them. FF explained that WW wanted another Homeswest property before she would move out of TT's home.[29] FF and TT both said that they viewed DD as being responsible for the decision to move WW interstate, thus relinquishing WW's Homeswest property in Western Australia in 2017.[30]
[27] Service Provider Report prepared by SSC dated 30 March 2023, page 3.
[28] 2023 OPA Report, page 7.
[29] 2023 OPA Report, page 6.
[30] 2023 OPA Report, page 6.
The SSC's view was that FF was in a position of conflict given all WW's supports were from their African community and there could have been a money driven motive.[31] WW's NDIS plan at that time (dated 17 February 2023 – 17 February 2024) had significant funding of $419,865 available, with $365,960 being allocated for core supports. TT confirmed that he and RR were completely financially dependent on WW, as caring for her was their sole source of income.
[31] Service Provider Report prepared by SSC dated 30 March 2023, page 4.
The SSC also noted that more thoroughness and timely completion of NDIS documents by the guardian was needed, and she was supportive of the Public Advocate being appointed as WW's guardian to provide some independence.
Investigator M's view was that as WW was aged in her 70s, the decision about her accommodation was crucial. Should WW remain living where she was with TT and RR? Should she go to SDA or a Homeswest option should one become available? Would a nursing home option better? There was a vested financial interest by TT in what decision was made, and with the strong bond with FF, a level of independence was recommended by Investigator M.[32]
[32] 2023 OPA Report, page 9.
On 17 May 2023, I appointed the Public Advocate to be WW's limited guardian with authorities for accommodation, services and the legal function of next friend function. I reappointed FF as WW's medical treatment guardian and I set the review date for one year. I was grateful to DD for making the application for review and bringing WW's matter back to the attention of the Tribunal.
Current matter - periodic review of orders on 20 May 2024 (Hearing)[33]
[33] Pursuant to s 84 of the GA Act.
WW's accommodation had changed by the time of the periodic review. WW was living in specialist disability accommodation with YY, provided by the Community Disability Housing Project (Disability Housing), from February 2024. While finding stable, long term, disability specific accommodation so quickly should have been a cause for great relief at WW's good fortune, there were three issues that were discussed in detail during the Hearing:
(a)WW was not happy in the Disability Housing and she continued to express her desire for a Homeswest property. WW's displeasure was not caused by the location of the Disability Housing property and appeared to be based on the type of government housing that was provided (i.e. Disability Housing v Homeswest);
(b)there had been a complete breakdown in the relationship between WW and FF due to confusion about the meaning and effect of FF's address being included on WW's NDIS plan for the last two years; and
(c)TT was upset that he and RR had lost their employment and were no longer receiving any contribution to the rent on their rental property. TT said that he had only been given one days' notice before WW left their home. As discussed in detail in earlier Tribunal hearings, TT's interests were directly affected by WW moving out of his rental property.
Ms J from the current Program Manager attended the Hearing in person. The Program Manager had provided supports to WW for approximately two years, and Ms J has known WW for 12 months. WW's delegated guardian from Public Advocate (Delegated Guardian) also attended in person along with WW, TT and WW's friend JJ.
Issue 1 - WW's desire for a Homeswest property
Ms J explained that WW wanted a Homeswest property, so they applied for both Homeswest and Disability Housing properties. A Disability Housing property became available after only a few months on the wait list. Ms J said that WW and YY looked at the Disability Housing property, liked it, and decided to take it.
Ms J said it was possible to put in another application for a Homeswest property but WW could be waiting for 5-7 years for that type of housing to become available. As WW was already in government housing, she would not need a Homeswest property as a priority. Further, the Homeswest properties were for all people waiting for government housing, whereas the Disability Housing was specifically for people with a disability. Ms J’s view was that Disability Housing was more appropriate for WW's disability.
The Delegated Guardian described the stakeholder meetings that were held prior to WW moving from TT's home and into the Disability Housing property. The meetings were held to provide clarity about what WW's care requirements would be in the future. The Delegated Guardian said that there were two or three meetings which were attended by WW, TT and YY.[34]
[34] Although TT did not attend every meeting.
The air conditioner at the Disability Housing property is not working. An application is in the process of being made to the NDIS to have WW's thermodysregulation disorder recognised as part of her disability, in the hope that the NDIS will pay for the air conditioner. WW's occupational therapist Ms M advised that to start this application, WW would need to visit her doctor, so Ms J has arranged with WW to make the appointment to see her doctor for this purpose.
The Delegated Guardian explained at the Hearing that WW told her that she and YY wanted to live independently.[35] As the Delegated Guardian was giving her evidence, WW said that was 'not what [she] said'. The Delegated Guardian explained that she would not find new housing for a represented person if that was not what they wanted, and a lot of work had been done to arrange the new accommodation because WW wanted to live independently. Ms J and the Delegated Guardian both confirmed that WW has asked for independent housing on many occasions, which is also evidenced in many documents filed with the Tribunal by other service providers.
[35] Also recorded in the Delegated Guardian Report, page 2.
Issue 2 - Breakdown in relationship with FF
It was clear at the Hearing that the relationship between WW and FF had soured. It appeared that the break down in their relationship stemmed from WW's confusion about FF's address being included on the current NDIS plan. WW alleged that Ms J had given her 'fake documents' that had FF's address on them. FF's address was likely included on WW's NDIS plan when FF was appointed the services guardian between May 2021 and May 2023. Even though the Public Advocate was appointed as the services guardian from May 2023, the address on the plan had not been changed.
We had a lengthy discussion at the Hearing about the fact that the address listed on the NDIS plan did not affect the plan and was likely just an administrative error. However, it was clear that FF's address being on the plan was a significant source of distress to WW. TT asserted that if FF's address has appeared on the NDIS plan one time, then it would be an error, but as FF's address was included on the NDIS plan twice, it must have been on purpose.
FF said that WW and TT thought FF had been making decisions about WW without her knowledge, and specifically that FF had recently signed the documents that caused WW's move from TT's home to the Disability Housing property. TT appeared to encourage this belief. TT stated that FF used to say to WW, 'you need to move out [from TT's home]', so when WW received the new NDIS plan and they saw FF's address on it, they surmised that FF was involved with WW's move to the Disability Housing property.[36] WW thought that FF was involved in the move because 'a long time ago', FF told WW that she found a place for her to move into. So, when the move to the Disability Housing property happened, WW thought that FF had arranged it.
[36] The new NDIS plan was issued in February 2024, discussed below at [49], which was around the same time as the move to the Disability Housing property.
FF stated that she did not know how her address came to be included on the NDIS plan, and that no one contacted her to ask to put her address on it. FF confirmed at the Hearing that she had not been involved in the move, as she had not been the accommodation guardian since May 2023. FF did not even know WW's new address at the Disability Housing property. FF says that from the time WW moved out of TT's house, WW has not contacted FF, when previously WW would call FF almost everyday.
FF said that her address being on the NDIS plan has caused her relationship with WW to break down because FF has been given 'the blame' for the move. FF said that she does not speak to TT anymore because TT:
(a)told WW that FF made the decision for WW to move out of his home, leaving TT to pay all the rent by himself;
(b)said to FF that she was responsible for he and RR losing their employment as WW's carers; and
(c)sent FF a text message, saying words to the effect of, 'you can be happy to work with WW now because I don't have a job, so you can work with her'.
I confirmed in the Hearing that FF did not sign any documents in relation to the move to Disability Housing, and WW asked, 'who did?' I explained that the Delegated Guardian made the decision to give consent to the new accommodation and that WW signed the lease herself. WW told me that she did not know what she was signing when she signed the lease for the Disability Housing property.
Issue 3 - Concerns about TT's financial interests being affected
While WW was living with TT and RR, they provided informal supports to WW via a host care model, and were paid a volunteer reimbursement on a fortnightly basis through the Program Manager.[37] WW has said she is concerned and anxious about the financial situation of TT and RR since the host care arrangement ceased and because they were no longer providing her with support under her NDIS plan.[38] WW specifically requested that only RR attend to her personal care, as she does not want support workers who she does not know to help her in that way.[39] WW trusts RR and is missing her daily support and the cultural significance of their relationship.[40]
[37] Service Provider Report dated 8 May 2024 by Ms J of the Program Manager.
[38] Service Provider Report dated 16 April 2024 by Ms H.
[39] Service Provider Report dated 16 April 2024 by Ms H.
[40] Service Provider Report dated 5 April 2024 by occupational therapist Ms M.
Ms J explained that the Program Manager explored RR being employed as a support worker. Unfortunately, RR's English was not sufficient to obtain the qualifications and certifications required to be a support worker, such as a first aid certificate. That meant that the Program Manager's 'hands were tied' when WW moved in February 2024 because they could not employ RR and they could not use WW's NDIS plan with ABN holders until the NDIS plan could be changed back to plan managed. The only option was for RR and TT to assist WW informally, so without payment, while the change was made. TT said that this occurred for around two weeks but he and RR were not happy to continue without payment.
WW was dissatisfied and frustrated that she has no control over her supports. The Delegated Guardian, with the agreement of the Program Manager, contacted the NDIS to change the plan to 'plan managed' to give TT and RR the opportunity to come back as WW's carers and be paid using their ABNs. The new NDIS plan started in February 2024 and was a 'light touch' plan, which meant that the same plan was essentially rolled over with a request to go back to being 'plan managed', to allow ABN holders to be paid to provide services.
Ms J and the Delegated Guardian were able to make the change relatively quickly, when factoring in the delays inherent in the NDIS, to allow for TT and RR to provide care and be paid with their ABNs from April 2024. TT and RR were aware that they were able to provide care to WW, but TT wanted to wait until after the Hearing on 20 May 2024 before they started providing care for WW. Ms J confirmed at the Hearing that TT and RR can start work at any time.
FF explained that while she was blamed for TT and RR losing their job and for RR not being able to provide WW with personal care, it could not have been her 'fault' if RR was unable to be employed by the Program Manager due to her English not being sufficient.
TT said that he was disappointed that he had signed a new lease for the rental property where WW and YY were previously living, and that he was now responsible for paying the weekly $1,500 rent without contribution from WW and YY. TT said he was not given enough notice of the impending move to the Disability Housing property. TT asserted that it was the Delegated Guardian that had deprived WW of having her own carers, being TT and RR, care for her.
WW's views and wishes
WW was clear that she did not want to have a guardian anymore. WW filed a letter with the Tribunal that said that she wanted to be independent and live a fulfilled life. Her letter stated that she was able to make appointments to see her doctor, administer her own medications, manage her Centrelink income, and pay her bills and rent on time.
I asked WW to explain how having a guardian was stopping her from doing anything on a day-to-day basis, when the role of the Delegated Guardian was to read and sign service contracts, communicate with the NDIS and to follow WW's wishes as much as possible. WW was unable to tell me a reason but she felt she was unable to have a say and she wanted to do it herself. WW said that she wanted a Homeswest property and not a Disability specific property. WW also said that she wanted to go to her NDIS plan meetings, which the Delegated Guardian was happy to arrange.
WW said that she was upset that TT and RR had been, in her words, disrespected, disgraced and 'terminated' after 10 years of caring for her, and that the Delegated Guardian was 'taking them from me'. I explained that the NDIS plan had been changed, everything had gone through the right channels, and that TT and RR had been able to work with her since April 2024.
I asked WW how she would handle the issue of asking the NDIS to pay for her air conditioner. WW stated that she would write a letter. Ms J explained that if someone wrote a letter to NDIS, it would get lost, as there is only one email address for everyone in Australia to communicate with the NDIS.
Ms J says that WW demonstrates varying levels of insight into her medical condition and her treatment, support, and accommodation needs. While WW participates in discussions regarding her care and expresses preferences regarding her support plan, she occasionally struggles to clearly articulate her specific concerns or preferences. Despite this, WW remains engaged in the decision-making process and cooperates with the support team to address her needs to the best of her ability. Ms J confirmed that ongoing communication and collaboration with WW is crucial to ensure that her evolving needs are met effectively.[41]
[41] Service Provider Report dated 8 May 2024 by Ms J of the Program Manager.
TT was not proposing himself to be WW's guardian, because WW does not want to have a guardian. TT's view is that WW is able to make decisions about accommodation and manage her own NDIS plan with the assistance of a plan manager. TT explained that WW's father was a slave and was tortured, and that WW felt that she was a slave because she was under the control of another person (the Delegated Guardian).
TT stated that WW should be given the opportunity to not have a guardian so she can truly enjoy life living in Australia. TT said that while WW is in Australia, he and RR are responsible for her, and when WW gets older, TT will take her back to Africa as she does not want to live in a nursing home.
Principles to be observed and legislation
To appoint a guardian for WW, I must be satisfied that one or more of the following criteria apply to her:
(a)she is incapable of looking after her own health and safety;
(b)she is unable to make reasonable judgments in respect of matters relating to her person; or
(c)she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.[42]
[42] GA Act, s 43(1)(b).
I also need to be satisfied that there is a need for a guardian.[43]
[43] GA Act, s 43(1)(c).
The primary concern of the Tribunal is the best interests of the proposed represented person.[44] Every person is presumed to be capable of looking after their own health and safety, making reasonable judgments in respect of matters relating to their person, 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.[45]
[44] GA Act, s 4(2).
[45] GA Act, s 4(3).
When considering any matter, the Tribunal is required, as far as possible, to ask about the views and wishes of the person concerned.[46]
[46] GA Act, s 4(7).
Orders should not be made if WW's needs could, in the opinion of the Tribunal, be met by other means less restrictive of her freedom of decision and action.[47] Finally, any order appointing an administrator or a guardian should be in terms that impose the least restrictions possible on WW.[48]
[47] GA Act, s 4(4).
[48] GA Act, s 4(6).
Evidence
I have read and had regard to the following documents:
(a)occupational therapy neuropsychological assessment prepared in July 2019, completed interstate;
(b)occupational therapy functional assessment dated 3 November 2020, completed interstate;
(c)service provider report prepared by NDIS Services Manager dated 30 April 2021;
(d)report dated 20 May 2021 by clinical psychologist Dr IP;
(e)functional capacity assessment dated 4 December 2022 prepared by occupational therapist Ms M;
(f)physiotherapy service report dated 5 December 2022;
(g)reports from the investigator advocates from the Office of the Public Advocate dated 25 May 2021, 14 December 2021 and 12 May 2023;
(h)service provider report by Specialist Support Coordinator dated 30 March 2023;
(i)medical report dated 26 February 2024 by Dr B;
(j)service provider report dated 5 April 2024 prepared by occupational therapist Ms M;
(k)service provider report dated 16 April 2024 prepared by occupational therapist specialist support coordinator Ms F;
(l)service provider report dated 8 May 2024 by Ms J of the current Program Manager; and
(m)report from Delegated Guardian dated 10 May 2024 (Delegated Guardian Report).
I have also had regard to the oral evidence given at the Hearing by WW, TT, JT, FF, Ms J and the Delegated Guardian. I took all evidence into account when making this decision.
Is WW unable to look after her own health and safety?
I am satisfied, and I find, that WW is unable to look after her own health and safety. The evidence is clear that since the stroke and the associated impairments in her cognition and mobility, WW has needed support workers to assist her during the day and overnight. The NDIS plan provides WW with around $365,000 every year for her core supports.
Is WW incapable of making reasonable judgments in respect of matters relating to her person?
I am satisfied, and I find, that WW is incapable of making reasonable judgments in respect of her personal matters. I acknowledge the medical report filed by WW's doctor, Dr B (Medical Report), who has known WW for 13 years and states that WW does not have a mental disability. Dr B says that WW has the cognitive capacity to make reasonable decisions about medical treatment, accommodation and services. The Medical Report says that WW can also sign an enduring power of guardianship.
However, on the basis of the other evidence that has been filed with the Tribunal since 2019 and the oral evidence given at the hearings that I have presided over in 2023 and 2024, I am unable to accept the evidence from Dr B in relation to WW's ability to make reasonable judgements about her accommodation and services due to the consistent concerns raised about WW's fragile emotional state and her vulnerability to be influenced by others.[49]
[49] Delegated Guardian Report, page 3; Service Provider Report dated 5 April 2024 by occupational therapist Ms M and Service Provider Report dated 16 April 2024 by Ms H. I accept Dr B's evidence in relation to WW having the cognitive capacity to make decisions about medical treatments and procedures.
For example, WW's occupational therapist stated that the trust that WW 'has developed with people could potentially result in her pleasing others at her own expense'.[50] WW can 'feel conflicted, stressed and confused when taking on the views of others'.[51] The Delegated Guardian noted that TT has continued to question the decisions made in relation to WW's day-to-day supports.[52]
[50] Service Provider Report dated 5 April 2024 by occupational therapist Ms M, page 4.
[51] Service Provider Report dated 5 April 2024 by occupational therapist Ms M. page 4.
[52] Delegated Guardian Report, page 4.
WW's clinical psychologist Dr IP says that WW is unable to negotiate her needs and being subjected to demands or requirements of others can create a sense of helplessness when negotiating what is best for her. Dr IP stated that WW should be given an opportunity where she can live in a space that is hers, as sharing with others can be demanding on her and will compromise her well-being.[53]
[53] Clinical Psychologist Report, page 3.
I accept the evidence from the occupational therapist, the clinical psychologist, the Delegated Guardian, the specialist support coordinators, Program Manager and the various service providers who have filed reports, and I find that WW is influenced by those around her and she is unable to negotiate on her own behalf.
WW was convinced that FF was responsible for the move to the Disability Housing property on the basis that FF's address was on the NDIS plan. FF's evidence is that TT has blamed FF for the move. Even when it was explained in detail during the Hearing, WW was unable to understand that the decision to move to the Disability Housing property was a decision of the Delegated Guardian in conjunction with WW, as it was WW who signed the lease.
It is clear on the numerous documents that have been filed that WW has expressed the view that she wants to live independently. However, when independent, stable, disability specific accommodation has been obtained, WW states that she wants a Homeswest property, but she is unable to explain why she wants a Homeswest property instead of the specialist Disability Housing property.
I am satisfied, and I find, that there is a risk that if WW was in control of the decision-making around her accommodation, she may relinquish her Disability Housing property in favour of continuing to rent with TT to avoid his disappointment, with the intention of waiting for a Homeswest property which may or may not become available.
At this stage of WW's life, being in her 70s, not having stable accommodation could put her at risk of being accommodated in a nursing home if her care needs increased and appropriate accommodation and supports were unable to be sourced. TT gave evidence at the Hearing that WW did not want ever to live in a nursing home and that he would take her back to Africa if it was ever necessary for WW to go into residential aged care.
Is WW in need of oversight, care or control in the interests of her health and safety?
I am satisfied, and I find, that WW is in need of oversight, care or control in the interests of her own health and safety. As set out above, WW demonstrated in the Hearing that she is easily confused, particularly in relation to the role of her long-term friend FF in obtaining the Disability Housing because of FF's address appearing on the NDIS plan.
I was concerned about the amount of time spent in the Hearing discussing the effect of FF's address being on NDIS plan and WW's belief that FF was involved in the move to Disability Housing, even though it was WW that signed the lease. I am satisfied that WW's confusion about relatively simple matters show that she would not be able to comprehend and navigate more complex issues, particularly around decisions about accommodation and the ongoing management of her NDIS plan.
I am also concerned about her vulnerability to influence, her reliance on her long-term carers TT and RR, and the possibility of manipulation or pressure for monetary gain. There are numerous concerns raised in the documents filed with the Tribunal that WW may be experiencing coercion from TT in relation to her NDIS funding and supports.
I am particularly concerned that WW's preferred supports in relation to her personal care appear to have been withheld from her until the Tribunal review was finalised. TT and RR have been able to provide care to WW since April, and despite it being WW's clear wish that RR provide her personal care, that has not occurred.
I am satisfied, and I find, that WW is in need of oversight, care or control in the interests of her health and safety. It is necessary that someone independent has oversight, particularly in relation to WW's supports, as it is necessary that the right support is provided to WW without fear or favour. The independent oversight of the Public Advocate is even more important now that WW's long-term supportive relationships with DD and FF appear to have ended.
Conclusion on the capacity to make personal decisions
While WW can express her wish, which is that she does not want a guardian and she wants a Homeswest property, I am satisfied that the presumption of capacity in respect of WW's ability to make reasonable judgments about her personal matters is rebutted by the evidence and WW remains a person for whom I can appoint a guardian.
Is WW in need of a guardian? If so, what functions are required?
Having regard to the evidence I have just referred to, there is no doubt that WW requires assistance to make decisions about her personal matters, such as engaging NDIS supports, managing her NDIS plan and deciding what accommodation is a sensible, safe long-term choice for her. The question is whether she needs a guardian, or whether there is a less restrictive option available. WW was very clear that she does not want a guardian and she wants to be free.
I am satisfied on the evidence before me that there is no less restrictive means available other than the appointment of a guardian because WW needs someone to have the legal authority to make decisions in her best interests. FF confirmed in the Hearing that she was not required to give consent to any medical treatment decisions while she was the medical treatment guardian.
I find that if it was left to WW to manage her accommodation and services, she may relinquish her stable Disability Housing property in favour of an option that would benefit TT and RR. This could have the effect in the future, if her care needs increase, that she may need to move into residential aged care. I am concerned about WW being taken to Africa by TT if aged care is required, and I will therefore include a travel function on the guardianship order.
In the circumstances, I am satisfied that there are no less restrictive means available for decisions to be made in WW's best interests other than via the appointment of a limited guardian with the functions of accommodation, services and travel.
Who to appoint?
The Tribunal can only appoint the Public Advocate as guardian if there is no one willing or suitable to be appointed.[54]
[54] GA Act, s 44(5).
As there were no nominees for appointment as guardian, the only option open to the Tribunal is to reappoint the Public Advocate as WW's limited guardian.[55]
[55] Understandably, FF no longer consented to being appointed as a guardian.
How long should the order run for before it must be reviewed?
When making orders, the Tribunal is required to fix a period for the review of the order.[56] WW's occupational therapist and clinical psychologist gave evidence that WW has experienced cognitive decline since the stroke,[57] and due to the dependence caused by her physical disability and the nature of her relationships with the people close to her, I am satisfied that the need for a substitute decision maker will likely be life-long. Due to the distress that the Tribunal hearings obviously cause WW, I am satisfied that it is in WW's best interests that I make these orders reviewable in the maximum period of time possible, being five years from today.
[56] GA Act, s 84.
[57] Occupational Therapy Neuropsychological Assessment dated July 2019, completed interstate; Clinical Psychologist Report, page 3.
Orders
The Tribunal declares that the represented person, [WW] 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.
The Tribunal orders:
Guardianship
The guardianship order dated 17 May 2023 is revoked and substituted with an order in the following terms:
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to determine the services to which the represented person should have access;
(d)to decide whether the represented person is to travel interstate or overseas, and the terms and conditions of such travel; and
(e)to hold the represented person's Australian passport and any other passport issued to the represented person.
2.The represented person's passport or passports are to be provided to the Public Advocate within 14 days of the date of this order.
3.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
4.The guardianship order is to be reviewed by 5 June 2029.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
12 JUNE 2024
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