• It was a significant consideration that the order for guardianship was limited.
• The applicant was a suitable to be appointed limited guardian in place of the Public Advocate. Despite the real risk of conflict that existed within the family dynamic, there was no evidence that the applicant would make decision adverse to the protected person's interests.
• The critical question for the Tribunal is whether the any conflict will be detrimental to the protected person in the sense of affecting the proposed guardian's ability to make decisions about the protected person's care.

Internal review - Guardianship and administration - Guardianship orders - Variation of guardianship order - Variation of identity of guardian - Suitability of appointee

Guardianship and administration - appointment of guardian- appointment of public advocate - relevance of conflict to the choice of guardian - context, nature and extent of conflict as relevant factors - conflict between proposed appointee and other family members - where familial conflict did not necessitate appointment of independent substitute decision-makers

Guardianship and Administration Act 1993 ss 5, 29, 32, 50, 64

South Australian Civil and Administrative Tribunal Act 2013 s 70

Ms L Williamson, Crown Solicitor's Office, appeared for the respondent

Mr R Chataway, Legal Services Commission, appeared for the protected person

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Made under the Guardianship and Administration Act 1993 s 64(c)

Made under the Guardianship and Administration Act 1993 s 64(c) and the South Australian Civil and Administrative Tribunal Act 2013 s 70(6)(b)

1. The protected person, CKR, is a 72 year old man who experiences a mental incapacity and requires a substitute decision-maker to make decisions in relation to his health care and accommodation. I will refer to him as the "protected person" in this decision.
2. The protected person has a partner, QUC, several siblings, and three children from previous relationships. One of the children, UOG, is the applicant in these proceedings and will be referred to in this decision as the applicant.
3. There has been conflict between QUC and the protected person's relatives over a number of years since the protected person's health began to deteriorate.
4. On 25 February 2025, the Tribunal made a limited guardianship order in relation to the protected person. The Tribunal ordered that the Public Advocate was to be the protected person's guardian in respect of accommodation decisions and health care decisions. The Tribunal also made an order pursuant to s 32 of the Guardianship and Administration Act 1993 ('G&A Act') that requires the protected person to reside where the guardian decides, and allows those with the day to day care of the protected person to use reasonable force to detain him at that place if required to. These additional orders were made because of the protected person's increasing confusion associated with his dementia.
5. The applicant considers that he should be appointed guardian or that he and his sister, WJE, should be appointed jointly as their father's guardian.
6. The protected person's partner, QUC, considers that the Tribunal's decision was the correct one.
7. The Public Advocate submits that the decision made by the Tribunal was the correct one.
8. Mr Bickle was appointed as an independent lawyer to represent the protected person. He has found that the protected person cannot express his wishes and has made submissions generally about the law, to assist the Tribunal. He has not taken a position as to who the guardian should be.
9. Section 64(c) of the G&A Act provides that an application for internal review may only be made with the permission of the Tribunal, subject to certain exceptions not relevant in this case. I have determined to decide the question of leave to proceed at the same time as considering the substantive review.
10. On review, the Tribunal is required to reach the correct or preferable decision with respect to the issue that was considered by the Tribunal in the first proceedings. In so doing, the Tribunal must give appropriate weight to the original decision. The Tribunal must also have regard to the principles applying to an exercise of power under the Act.
11. Section 5 of the G&A Act sets out the principles to be observed in the exercise of powers under the G&A Act, and requires consideration to be given to the following:
    1. what would, in the opinion of the decision maker, be the protected person's wishes on the question of guardianship and administration if the person were not mentally incapacitated (if reasonably ascertainable on the evidence;
    2. the present wishes of the protected person; and
    3. the adequacy of any existing informal arrangements for the care or management of the person or management of the person's financial affairs; and
    4. The order must be the order least restrictive of the person's rights and personal autonomy as is consistent with the person's proper care and protection.
12. The Tribunal may make guardianship orders under s 29 of the G&A Act if satisfied that the person the subject of the application has a mental incapacity and an order should be made in respect of the person.
13. It is common ground that the criteria for the making of a guardianship order in relation to the protected person are present and established. The issue on internal review is whether the Tribunal made the correct or preferable decision in appointing the Public Advocate to be the protected person's guardian.
14. In considering that question, I am also required to have regard to the fact that the Public Advocate may only be appointed if there is no other suitable person to fulfil the role who is willing to perform it. Suitability for appointment is governed by criteria listed in s 50 of the G&A Act.
15. The decisions that are required to be made in relation to a person will change over time. The decisions that currently need to be made for the protected person concern his long-term accommodation and his day-to-day healthcare decisions. He is currently at the Repatriation Hospital. He is awaiting longer term accommodation in an aged care facility that is suitable for a person with his needs, and it appears that this will entail accommodation in a memory support unit.
16. The evidence before the Tribunal in the original proceedings indicated that there is significant conflict between QUC and the protected person's children. The Tribunal found that this to be the most significant factor in making an appointment of a guardian. The Senior Member said:

My view is, in considering that section, while conflict itself is not a reason to appoint the Public Advocate, and I also note that section 29(4) of the Act requires the Tribunal to consider all other appropriate appointments prior to considering the Public Advocate, there is significant and entrenched family conflict, and it extends beyond financial decisions to accommodation decisions and guardianship decisions. Often accommodation decisions are both guardianship and administration decisions as payment needs to be made regarding the placement. There will be some legal contracts that need to be signed on [CKR's] behalf as well. There are various allegations of stealing, misappropriation of money, abuse, verbal abuse. And I am of the firm view that the nominated persons who the family consider appropriate would not be able to meet the criteria of section 50. The conflicts are so great, and it does affect decisions that need to be made for [CKR]. No order other than appointing the Public Advocate is appropriate.

17. The critical question is whether the conflict will be detrimental to the protected person, in the sense of being likely to affect the proposed guardian's ability to make decisions about the protected person's care, protection and welfare. It is not directed at the interests of the family members.
18. The protected person needs appropriate decisions made for him about his accommodation and his health care.
19. I took the applicant through the criteria of suitability. With one potential exception, he is a suitable candidate. He is willing and available. He is compatible with the protected person in that the two have a history of getting along and there was no evidence that the protected person is distressed by the applicant. The question is whether the applicant can put aside his deep disappointment and distrust of his father's partner, QUC, so as to take into account her contribution to the decisions that are yet to be made. The applicant admitted, quite properly, that his father would want her views to be considered, if he were able to express his wishes.
20. Although the applicant expressed a willingness and an ability to set aside the past conflict, I am not persuaded that he would do so. His evidence suggested that he thought that if her view diverged from that of the other family members, he would be justified in rejecting her view. I do not consider that the process of substitute decision-making is simply one of "majority rules". The guardian should listen to and evaluate the contribution of those who love the protected person and who knew him when he was well. People's views change over time. The applicant would need to be able to accommodate QUC's contribution as it reflected her close connection to the protected person in his later years.
21. Whilst the Tribunal has a reservation as to the applicant's suitability, it is significant that the guardianship order is a limited one. It was not suggested that the applicant would make health care decisions that were not consistent with medical advice, or that were not in his father's best interests. QUC agreed that he most likely would make decisions in his best interests. However, she doubted his willingness to communicate effectively with her about that.
22. The accommodation decision is one that is likely to place more strain on the protected person's relatives and QUC. The applicant is frustrated that the protected person has not yet been moved by the Public Advocate to long term care. He thinks that he could arrange that more quickly. However, it appears that various differences in views about the general area in which the protected person should be located have now subsided, and everyone agrees that the location should be one that does not place an unreasonable burden on any of his loved ones to visit him.
23. The complexity arises because of the interaction between an accommodation decision and funding. It may be that a fully-funded option is not available because the protected person does not have assets in his own name from which to fund a bed. The applicant thinks that funds should be released from accounts or assets jointly held with QUC, to enable a fully funded bed to be made available. The Tribunal's experience is that the availability of beds for those with higher behavioural support needs is limited and that the identification of a suitable facility to accommodate the protected person may be difficult.
24. The fact that the identification of suitable accommodation may be difficult in the face of limited bed availability is not a reason to decline to appoint the applicant as the protected person's guardian.
25. The applicant said that if he were not found to be a suitable appointee, either his brother or his sister, WJE, would be suitable guardians. He was candid in his view that possibly WJE would communicate more effectively with QUC than he would. I explained to the applicant that I would not appoint a person who was not present at the hearing because I could not make a proper assessment of their willingness, availability and suitability. However, he may note that those others may put forward their own applications if they wish in the future, and that nothing prevents any of the applicant's relatives from offering to communicate with QUC about the protected person, irrespective of whether they are the appointed guardian or not.
26. My overarching objective is to ensure that there is a person appointed who will protect the interests of the protected person, including their interests in being loved and cared for by all of those with whom he had a relationship before he lost capacity. I have real reservations about the applicant's ability to conduct himself civilly with QUC. He was hostile and frustrated at times during the hearing. However, in relation to the classes of decision that this limited guardianship order entails, I do not consider that the protected person's interests are at risk if he is appointed.
27. Taking into account the fact that the Public Advocate is the guardian of last resort, and the applicant's commitment to find high quality long-term accommodation for his father outside of a hospital setting, I consider that he is able to make such decisions. I also consider that he is able to make health care decisions on behalf of the protected person. I find him to be suitable for appointment by reference to the criteria in s 50 of the G&A Act. In making any of the decisions, he will need to take into account QUC's views. I think that he will find that difficult. Whilst it is a recommendation only, I recommend that he rely on other family members to assist in that regard. Otherwise, he risks facing an application to revoke his appointment on the basis that he has not been fulfilling his duties in accordance with the principles in the Act.
28. I will vary the order made in relation to guardianship on 25 February 2025 but only to the extent of substituting the applicant as the guardian of the protected person, CKR.

1. Leave to proceed is granted to the applicant.
2. The orders on 25 February 2025 to appoint the Public Advocate as the guardian of CKR are varied. UOG is appointed the guardian of CKR. In other respects, the original order and the special powers orders continue in force.