The applicants contended that the protected person's brother was suitable to be appointed sole guardian and administrator instead of the respondents. The respondents contended that the protected person's brother was too amenable to the opinions of his mother, had not been involved enough previously in the protected person's affairs and that his approach to the roles did not carry the requisite complexity in consideration. The representative for the protected person ultimately contended for the suitability of the protected person's brother and emphasised the legislation's preference of a natural person as appointee.

The Tribunal held, in allowing the internal review and varying the identity of the guardian and administrator to the second applicant (the protected person's brother):

• The legislation does not require a prospective lay appointee to perform the functions with the same degree of experience and knowledge as a professional decision-maker. What is necessary is that the person be sufficiently capable to perform the functions and be devoid of motivations that are antithetical to the welfare of the protected person.

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

Internal review - Guardianship and administration - Administration orders - Variation of administration order - Variation of identity of administrator - Suitability of appointee

Guardianship and Administration Act 1993 ss 5, 29, 32, 35, 44, 50, 64, 65, 66

South Australian Civil and Administration Act 2013 ss 57, 70

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 section 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)(c)(i)

1. This decision concerns SSN who is 28 years old. SSN grew up on a farm with his mother, WLD, and his brother, ZNM. SSN has an acquired brain injury following a workplace accident in 2017. As a consequence, he has diminished expressive and receptive communication, diminished planning and reasoning skills, and the task of daily living are a challenge for him.[1] He also experiences recurrent psychosis, likely associated with illicit drug use.[2] He has been under the medical care of Dr Warwick Black, psychiatrist. SSN had an advance care directive that appointed his mother WLD as a substitute decision-maker. SSN had also appointed his mother as his attorney under an enduring power of attorney. Both of these instruments were executed on 17 April 2015.
2. SSN's behaviour since his accident has been difficult to manage for those supporting him. His mother as substitute decision-maker was approved to authorise his detention and care in hospital in the period of his rehabilitation to keep him from absconding and to administer treatment. Whilst subsequently living at home, he was violent on a number of occasions toward his mother and damaged property, and police were required.[3] One of his support workers funded under the NDIS was convicted of drug related charges whilst providing services to SSN, at a time that SSN was also using illicit drugs.
3. In September 2024, SSN was admitted to Mt Gambier hospital and discharged to a supported living facility ten minutes out of Mt Gambier.[4] However, he was not happy there initially, and his mother supported his wish to return home.[5] It was his mother's support for SSN's wish to return home, and her support of the NDIS support worker in relation to whom she offered a surety, that led other care professionals involved in SSN's care to apply to the Tribunal to have WLD's substitute decision-maker appointment revoked.
4. On 10 October 2024, a Tribunal member made urgent short-term orders under the Guardianship and Administration Act 1993 ('G&A Act') affecting the legal arrangements for decision-making concerning SSN's care. The application for orders was made by two health care workers employed within the Department for Health and Wellbeing, Ms Edenden and Ms Rolla. They sought to suspend the operation of the advance care directive and to have the Public Advocate and Public Trustee appointed to make decisions on SSN's behalf as his guardian and administrator, respectively. They did not consider that SSN's wishes, supported by his mother, were consistent with his proper care and protection. The Tribunal agreed that SSN's mother did not appear to be suitable to make decisions on his behalf and made the requested orders.
5. Having been made on an urgent short-term basis, these orders were required to be the subject of a further hearing at which the issues could be considered on a more comprehensive basis, if they were to endure.[6] Senior Member Lester conducted such a hearing following notice being given to relevant parties, on 29 October 2024. The hearing was conducted with one party present in person (Ms Freytag of the Office of the Public Advocate), others by telephone (SSN's mother, WLD, and SSN's brother, ZNM), and several others by video-conference (Ms McMenamin, Ms Rolla, Ms Galbraith (a mental health nurse), Ms Smith (NDIS support coordinator), Ms Edenen (mental health nurse), Senior Constable Mailley (Family Violence Intervention Section) and Senior Sergeant Martin (Naracoorte Police)). SSN did not participate; his mother advised the Tribunal that he did not wish to attend and that he was asleep.[7]
6. WLD, who was legally represented in the proceedings before the Senior Member, opposed the application. She sought to have the application dismissed and to allow the existing informal arrangements, underpinned by the existing instruments, to continue. ZNM supported his mother's position with respect to the application.
7. That SSN requires assistance to make significant decisions, and to manage his day-to-day finances, was not disputed by his mother. The issue was the suitability of WLD to provide that assistance under the existing arrangements or as a guardian and administrator.
8. Evidence was adduced in the original proceedings and on the internal review that SSN is supported under the NDIS and receives a monthly depot injection under a community treatment order.[8] The delegate guardian appointed under the short-term orders told the Tribunal that SSN has a history of challenging and aggressive behaviour, and requires a good deal of support to manage daily living safely.
9. Ms Edenden said:[9]

There's a consistent theme really of [SSN] being admitted in the context of aggression and impulsivity towards [WLD], and then with, you know, with police having to intervene. There's clear documentation and communication from [WLD] that during these incidences she's not coping, she's suffering, you know, severe carer fatigue due to [SSN's] impulsivity and violence, which is usually dominated by [SSN's] finance - you know, he wants access to his finances, and if [WLD] says "no" for whatever reason, he will then, you know, become violent. I was on the phone during the last - one of the last incidences, when [WLD] was being assaulted by [SSN]. So I'll just - you know, in the context of what those presentations have been, we've got he attempted to kidnap his mum and his mum had to run into the toilets in the community and community bystanders called police. That was in 2022. He damaged an ATM, and five police had to, you know, take him to hospital, trying to get money from - I can only assume he was trying to get money out of that ATM - and he damaged the ATM. He kicked in a door at home. Another presentation, he tried to burn his mum's house down, he tried to explode the house with gas, you know. And, you know, with all of these presentations, [WLD] has been heavily involved and is trying to support [SSN] the best she can, and a lot of it [WLD] has clearly, as I said before, communicated she's not coping. ...

10. Notwithstanding Ms Edenden's evidence that WLD faced challenges in managing her son's behaviour whilst he was at home, WLD refused to pay the accommodation fees at the facility and threatened to remove him and take him home.[10]
11. Police gave evidence that they had responded to 49 events involving SSN, over 40 months. Twenty-two of those had been in relation to family violence involving his mother.[11]
12. Ms Edenden told the Tribunal that SSN's behaviour settled somewhat after he moved into the facility which allowed some of the medication to be reduced.[12]
13. Dr Black is a psychiatrist who has been treating SSN since 2022. In his medical report, Dr Black described SSN's conditions as static and severe.[13] Dr Black is of the opinion that SSN lacks the capacity to manage any of the domains of his life safely. He observed that SSN has a low frustration threshold, is aggressive and impulsive, and directs much of his behaviour at his mother.
14. After the conclusion of the hearing, the Senior Member revoked SSN's advance care directive in respect of the appointment of his mother as substitute decision-maker. The remaining provisions of the advance care directive, setting out SSN's wishes with respect to various issues, continue to have effect. The Senior Member confirmed the appointment of the Public Advocate as SSN's legal guardian. The Tribunal directed that SSN reside in such place as the guardian from time to time thinks fit, and authorised SSN to be detained there if necessary.[14]
15. Senior Member Lester was not satisfied WLD was a suitable appointee as SSN's guardian. She said:[15]

It is apparent [WLD] loves and care[s] for her son. I am not satisfied she is capable of making decisions for him with respect to his accommodation, health care and services with his proper care and protection and is making decisions that are only in line with his immediate wishes. She is not willing to act on expert advice of health professionals ...

16. The Senior Member also considered whether ZNM would be a suitable appointee. This was necessary having regard to the injunction in the G&A Act that the Public Advocate may only be appointed as guardian if no other order would be appropriate,[16] and because the principles of the Act include that the protected person's wishes must be considered, and so too must the existing informal arrangements in place for the care and protection of the person.[17]
17. Senior Member Lester also appointed the Public Trustee as the full administrator of SSN's estate pursuant to s 35 of the G&A Act. After considering and rejecting his mother's suitability for this role, she said:[18]

I am also not satisfied that currently [ZNM] is an appropriate person to appoint. He is completely supportive of his mother remaining as the decision-maker and there is significant concern that if he was appointed, he would be heavily influenced by her views regarding decisions that need to be made by him, particularly with regards to accommodation and service decisions. I also bear in mind section 50(b) of the G & A Act and that [SSN] is highly volatile and violent at times which could have a deleterious effect on his relationship with his brother.

18. Subsequently, the Public Advocate decided that SSN should reside at the facility on a continuing basis and he continues to do so.
19. SSN's mother and brother ("the applicants") disagreed with the orders made by the Senior Member and applied for an internal review.

1. On internal review, the Tribunal must examine the original decision and give appropriate weight to it, but reach the correct or preferable decision at the time of the internal review.[19] On the rehearing, the Tribunal may receive fresh evidence as the Tribunal sees fit.[20] In this matter, although there is a requirement that the applicants establish that they should be permitted to proceed with the internal review,[21] that step has been combined into the substantive review.
2. At the internal review, the applicants continued to be represented by Ms McMenamin. The respondents were represented by Ms Nikoloff for the Public Advocate, and Ms D'Angelo for the Public Trustee, respectively. Mr Bickle, an independent lawyer appointed under a scheme for free representation for protected persons under s 65 of the G&A Act, appeared for SSN. SSN participated via telephone at the start of the hearing but asked to be excused thereafter.
3. At the outset of the hearing, I advised the parties that I considered that the internal review should proceed effectively as a rehearing of the matter without detailed consideration of the reasoning of the earlier decision. This was because the applicants are seeking different orders than they proposed in the original proceedings. The parties agreed with this approach at the outset of the hearing. Practically, this meant that the parties were permitted to focus primarily on the suitability of ZNM as a guardian and administrator, and his suitability as assessed by reference to the criteria in s 50 of the G&A Act.

1. The applicants agree that SSN requires a full guardian and full administrator (as opposed to a limited one) and that a special powers order is required. They agree that the guardian should be authorised to require SSN to reside where the guardian determines.
2. On internal review, they initially sought to have the Advance Care Directive and Enduring Power of Attorney found to be enforceable and to be documents on which the public is entitled to rely. In the alternative, they sought for WLD to be appointed as guardian and administrator. In the further alternative, they sought to have her and ZNM appointed jointly, and in the further alternative, ZNM as sole guardian and administrator.[22]
3. However, in the pre-hearing stages of the internal review, the applicants abandoned all but the last of the alternative proposals. They proceeded on the sole basis that ZNM should be appointed as SSN's guardian and administrator. This change of position followed a report made to police about conditions at the mother's property, which led to the attendance of police and RSPCA officers and the removal of approximately 30 dogs in poor condition and an assessment that the premises were in squalor.[23]
4. The applicants now do not challenge the revocation of the appointment of SSN's mother in the Advance Care Directive. Nor do they seek to set aside the "special powers" order made on the Public Advocate's application as guardian. The applicants' contentions on internal review are that the Senior Member's appointment of the Public Advocate as SSN's guardian should be set aside, that his brother be appointed as his sole guardian, that the appointment of the Public Trustee as his administrator be set aside, and that his brother should be appointed as his administrator.
5. The applicants also sought an order requiring that Ms Edenden and Ms Rolla and/or the Public Advocate pay their legal costs of the hearing before the Tribunal held on 29 October 2024 before Senior Member Lester.
6. The Public Advocate contended that the current appointments of the statutory guardian and statutory administrator are correct and preferable.
7. The Public Trustee did not seek to advocate for particular outcomes, but cross-examined ZNM to test his suitability for appointment.
8. At the outset of the hearing, Mr Bickle asked that SSN be contacted via telephone and that he was expecting a call. It was clear from what SSN said to the Tribunal in that call that he cared for his family. He told the Tribunal that "he didn't contact anyone" such as the government or the Tribunal. He said words to the effect: "If I can't be in control of my life then at least let my family have control of those decisions." SSN then politely asked to be excused from the hearing, and I disconnected his telephone link.

1. In this matter, I have taken into account the material filed in the original proceedings, the parties' written submissions and the affidavit material filed on the internal review:

d. Psychiatrist and medical reports of Dr Black - 1 October 2024;

e. Tribunal orders and associated application - 10 October 2024;

f. Tribunal orders and associated statement of reasons - 29 October 2024;

h. Original application for internal review- 28 November 2024;

i. Amended application for internal review - 21 January 2025;

l. Affidavit of Sonya Kay Edendon - 7 February 2025;

n. Outline of argument of the first respondent - 19 February 2025;

p. Affidavit of Shannon Kate McMenamin - 25 February 2025;

1. Updated outline of argument on behalf of the protected person - 21 February 2025;

s. Reply submissions for the applicants - 26 February 2025;

t. Supplementary submissions of the first respondent - 5 March 2025;

u. Supplementary submissions of the second respondent - 5 March 2025;

v. Email from representative of the protected person - 5 March 2025; and

w. Supplementary reply submissions for the applicants - 5 March 2025.

1. In particular, I have considered the occupational therapy functional capacity assessment dated 14 October 2024 annexed to Ms Kerr's affidavit, which sets out in detail the extent of SSN's limitations with respect to the functions of daily living.

1. The applicants relied on their amended initiating application, written submissions, and oral evidence adduced from ZNM at the hearing.
2. ZNM's evidence (affidavit and oral) was as follows. He currently lives in Adelaide after moving from the South-East of South Australia in 2019. He grew up on the farm with his mother and SSN who was four years younger than him. When SSN was in primary school, he looked after him after school. As teenagers, they played football at the same club. SSN's accident occurred in 2017, and in the following year, ZNM went to work in Western Australia. ZNM said his relationship with his brother changed after SSN's accident and SSN became "harder to handle".
3. ZNM's evidence was that his views have changed since the first hearing. He no longer believes that SSN should move home to live on the farm. He considers that SSN's health needs would be better met if SSN lived in supported accommodation in or near Adelaide, because of a larger pool of service providers than in the South-East. He considers that it is not feasible for SSN to live with him because SSN's incessant requests for money are too difficult to manage at close proximity.
4. ZNM's evidence was that if he were his brother's administrator, he would get professional advice about how to manage SSN's WorkCover lump sum arising out of his accident, should SSN receive one. He understood that if he were administrator, he would hold the money on trust for his brother.
5. ZNM told the Tribunal that his work involved cost-control on projects, including creating estimated budgets and allocating resources.
6. In relation to SSN's history of use of illicit drugs, ZNM said that this had caused SSN to put on a lot of weight and that he was unhealthy. ZNM considers that SSN needs help to learn how to eat in a healthy way, and cook and clean.
7. In relation to SSN's relationship with his mother, ZNM said that he did not consider it tenable for SSN to live with his mother. He said that he had supported his mother's position that SSN should return home because he was not aware of the extent of the deterioration of the house and the fact that a large number of dogs had to be removed by the RSPCA for their well-being. He said that he had not been to the house for a long time and had formed his earlier views as a result of phone conversations with this mother.
8. ZNM considers that he is an appropriate guardian and that it would be consistent with his brother's wishes for him to be appointed. ZNM considers that the Office of the Public Advocate is not able to provide a guardian who is sufficiently responsive to SSN's needs because of their complexity and the distance between the delegate in Adelaide, and SSN in the South-East. He stated that there have been three delegates who have performed the role so far and that this was not beneficial to SSN.
9. ZNM was asked to tell the Tribunal how he would manage the responsibilities of full-time employment and being SSN's guardian and administrator. ZNM said that he had sufficient autonomy and authority at work to use his phone and to email during the day. He said that he would answer SSN's calls and that he could take leave, if necessary, for a particular issue if it arose.
10. ZNM considered that arranging his brother's move from the South-East to Adelaide would improve SSN's access to his relatives, most of whom live in Adelaide. He said he anticipated visiting SSN about once a week, and possibly more frequently initially while SSN settled in.
11. ZNM said that he anticipated that if he were appointed SSN's guardian, he would restrict his brother's access to his father because his father is a poor influence. ZNM gave evidence that SSN's father was homeless and did not act in SSN's best interests. He said that he would discuss this with SSN's treating team.
12. Addressing the suggestion that he would act as his mother's "proxy", ZNM denied this. He said that although his mother has a deep understanding and knowledge of SSN'S behaviour, they should not live together in the family home and she is not a professional health care worker. His evidence was that it has only recently become clear to him that SSN was not being properly cared for at home. His mother was unable to prevent SSN from associating with drug-users, one of whom was SSN's NDIS worker who was subsequently convicted of drug offences.
13. ZNM said that he had discussed with his grandfather the proposal of taking on this role and believed he would have his grandfather's support.
14. ZNM explained his resistance, in the original hearing, to the proposal that his brother move to supported accommodation, by reference to a lack of understanding as to the cost, how it would be financed, and who would bear such cost. As it was a telephone hearing that was beset with technical difficulties, he says that he did not hear the evidence that the position was "funded'. The implication of his evidence is that he and his mother believed that they would be required to cover a $10,000 weekly bill.[24] However, he readily accepted that it is likely that - given the financial circumstances of each of SSN's parents - he will be required to provide financial support to SSN for the foreseeable future. He did not baulk at that prospect.
15. While still in the early stages of the examination in chief, counsel for the Public Trustee observed to the Tribunal that ZNM seemed to be relying in the giving of his evidence on a document that had not been made available to the other parties. The document was called for and later produced. It turned out to be a document in a question-and-answer format that appeared to be an aide for ZNM for the giving of evidence.
16. Ms McMenamin advised the Tribunal that the "questions" part of the document had been prepared by Ms McMenamin and the "answers" part of the document had been prepared by ZNM. Counsel for the respondents submitted that it was inappropriate for ZNM to rely on such a document and that I should treat his evidence with caution.
17. I do not consider that the use of the document has undermined ZNM's evidence. He appeared not to have been advised about the use of aides-memoire in giving evidence. If so, that is unfortunate. The issue was detected at an early stage of the proceedings. The content of his evidence, and the manner in which it was given, did not alter once he was asked to set the document aside.
18. Counsel for the respondents both contended that, based on his evidence, there remained doubt as to whether ZNM would adopt WLD's views as to the appropriate way that SSN should be supported. It was further contended that ZNM had not had the extent of involvement in his brother's care in recent years such as would provide him with the appropriate understanding of SSN's needs or the financial acumen to manage his affairs. It was suggested that ZNM's proposals for SSN's care were uninformed and lacking an appreciation of their complexity.
19. Mr Bickle's position prior to the hearing was one of tentative support for the continued appointment of the statutory appointees. Mr Bickle filed an outline of argument which confirmed that SSN had conveyed the same views to him as he expressed over the phone to the Tribunal.[25] However, after hearing ZNM's evidence, he became inclined to the view that the principles governing the appointment of a guardian and an administrator operated in these circumstances in favour of ZNM's appointment. In particular, Mr Bickle emphasised that the Tribunal should give preference to the appointment of a natural person where such a person is available and suitable to perform the functions.

1. The appointment of a guardian or administrator is governed by s 50 of the G&A Act which provides, alongside other provisions:

50 - Criteria for determining suitability for appointment > > (1) In determining the suitability of a person for appointment as a guardian or administrator, the Tribunal must have regard to -

(a) whether the potential appointee and the protected person would be incompatible;

(b) whether there is some existing family arrangement or relationship that should be preserved or should not be disturbed;

(c) whether the potential appointee would be competent to discharge the functions of guardian or administrator under the order and would do so in accordance with the principles stated by this Act;

(d) whether the potential appointee would be readily available for discharging those functions;

(e) whether any conflict of interest would arise from the appointment;

(f) such other matters as the Tribunal considers relevant.

(2) The fact that a proposed appointee is related to the protected person by blood or marriage will not, of itself, be taken to give rise to a conflict of interest.

51 - Consent to appointment

A person (other than the Public Advocate or the Public Trustee) cannot be appointed as a guardian or an administrator unless he or she consents to the appointment.

52 - Joint appointments

If more than one guardian is appointed in respect of a protected person or more than one administrator is appointed, all the guardians, or all the administrators, as the case may require, must, subject to the order of appointment, concur in every act done or decision made in relation to the protected person, or to the protected person's estate.

54 - Termination of appointment

(1) The appointment of a person as a guardian or administrator terminates if -

(a) the person dies; or

(b) the Tribunal revokes the guardianship or administration order on an application under Division 2 or 3; or

(c) the Tribunal revokes his or her appointment on an application under Division 2 or 3.

(2) The Tribunal may, on an application made under Division 2 or 3, revoke the appointment of a guardian or an administrator -

(a) if the guardian or administrator seeks revocation of his or her appointment; or

(b) if the Tribunal is satisfied that the guardian or administrator -

(i) is not willing or able to act in that capacity; or

(ii) is not a suitable person to act in that capacity in respect of the protected person; or

(iii) has, in that capacity, acted in an incompetent or negligent manner or contrary to the principles stated by this Act; or

(iv) has committed an offence against this Act or an offence involving dishonesty.

1. It is appropriate to consider the criteria for suitability by reference to ZNM's evidence and my assessment of his willingness, commitment and understanding of the roles for which he was putting himself forward. In so doing, the different sorts of decisions that may be required to be made by a guardian and an administrator may have the result that a person is suitable for one role but not the other.
2. As to the compatibility of SSN and his brother, I find that the two are currently compatible. SSN would prefer to make his own decisions but would prefer his brother to be a substitute decisionmaker over and above the Public Advocate or Public Trustee. There is evidently a risk that their relationship will be tested, and possibly damaged, by an appointment. However, both want it to work and in particular, SSN considers that it is the preferable order to be made if he is not allowed to make decisions for himself. SSN may find that his brother is less amenable to approve or make decisions that SSN wants him to make. If so, it would be a matter for ZNM to decide whether the risk to the fraternal relationship is such that he feels that it would be in SSN's best interests that ZNM relinquish the roles.
3. I find that there is no existing family arrangement or relationship that should be preserved or should not be disturbed by the proposal to appoint ZNM to either role. Neither SSN's mother nor brother is currently acting informally as a substitute decision maker.
4. I find that ZNM is competent to perform the functions of both guardian and administrator. The respondents' approach was to be critical of ZNM's actions at times when he had no formal role as a substitute decision-maker and was not required to act in accordance with the principles in the Act. I do not consider that this provides a fair assessment of ZNM's likely conduct if appointed. Nor do I consider that the legislation requires a prospective lay appointee to perform the functions with the same degree of experience and knowledge as a professional decision-maker. What is necessary is that the person be sufficiently capable to perform the functions, and be devoid of motivations that are antithetical to the welfare of the protected person.
5. I found his approach to the role to be balanced and realistic. He said:[26]

[SSN], like I said, [SSN] needs full time support. He can't live at home with my mother. My preference is that he will be staying at [the secure living facility] but I will also be looking for if there's any more suitable accommodation. Like I said, I'd prefer to be nearer Adelaide so he can get specialists involved easier and more regularly. But if there's nowhere better than [the secure living facility], [SSN] will stay at [the secure living facility], if you know what I mean. I will do the research and talk to his support at NDIS. Depends on his plan. It will come down to what his finance availability is for that. But my intention, [SSN] will only be getting the best care and living situation that he can. And yeah, if it's [the secure living facility], it's [the secure living facility]. I'm not going to drag him out of [the secure living facility] because I have concerns or questions. If it's yeah, he said he's settling in at the start of this call, so I will talk to [SSN] about what his wishes are but his wishes are he wants to go home, which is not going to happen.

6. My impression of ZNM is that he was open to advice about his brother's care, and that he would take into consideration the principles under the Act by which he would be required to abide. I conclude that he is competent to perform the functions of guardian and administrator for SSN.
7. ZNM's evidence was that he would make himself available to fulfil the functions. If SSN remains in the South-East, that may be difficult, though not impossible, for him to achieve. Like ZNM, SSN's current substitute decision-makers are in Adelaide. I do not consider the physical distance between ZNM and SSN to be a barrier to his appointment. If he is appointed guardian, ZNM foreshadows arranging for his brother to live in or closer to Adelaide, and that would enable face to face contact which ZNM maintains is preferable for explaining things to SSN.[27] I accept that ZNM has given the issue of his availability consideration and considers that his work commitments are not incompatible with his appointment. I accept his evidence about that.
8. I am not satisfied that there is any conflict of interest that would preclude an appointment. SSN may (or may not) be awarded a lump sum workers compensation payment in the future, and has an NDIS package. It is the administrator's role to manage these and all of SSN's estate in a manner that serves his interests to the exclusion of any other interest. ZNM's evidence indicated that he is financially independent and secure, and considers that his brother's needs will likely exceed whatever payments he receives. He considers that he will be likely to have to cover any shortfalls. That evidence is not suggestive of an attempt by ZNM to secure any benefit from his brother's income. Further, a private administrator may be subject to the oversight of the Public Trustee to minimise the risk of mismanagement of the estate. Such oversight mitigates the risk of misappropriation.
9. ZNM considered that he would be able to bring more independence to the role than his mother. He said:[28]

Yes, I would be more independent. I would not have the pressure of living with my brother, pushing and creating issues I guess there from wanting money and certain things. I will be looking to get suitable brain injury specialists to see [SSN]. I want to like prior receive his administration guardianship, my desire is to build a team that is suitable for treating a brain injury that he has got and ensuring that the correct plans are in place for him to be able to get the most out of his life. I will always look at every point of view before I make a decision. I'm not a person who is told something and then goes off and makes it off that one call. In my career, it is my job to deliver the best outcomes and provide for clients customers. Similarly, I want to provide the best for my brother so it'll be, I'll be looking at more many avenues that I can and talk to as many people as I can until I feel there's a sufficient team supporting living for him. That is my view. And then regarding access and coordinated combined efforts, yes, I will be. That's again part of my job. I coordinate and direct people for a living. I can manage directly up to 60 people. So I have previously proven myself. And yeah, I can [inaudible 00:03:19] really much based on this question, I guess. Like it's just a question but it's yeah, I'm more than capable.

10. The other issue of relevance to suitability is whether ZNM would, if appointed, accede to the wishes of his mother where those wishes are not compatible with the performance of the functions of guardian and administrator. Having heard ZNM's evidence, and despite the fact that he supported his mother's application in the earlier proceedings, I am satisfied that ZNM appreciates that if he is appointed, he must act independently and only in accordance with his obligations as guardian and administrator.
11. For these reasons, I am satisfied that ZNM is suitable for appointment and that the original decision should be set aside.
12. The application for internal review included an application for costs of the original proceedings. Notwithstanding that the original decision has been set aside and substituted with a fresh decision, no order for costs is appropriate.
13. Firstly, the usual order made in guardianship and administration proceedings is that the parties bear their own costs, in accordance with s 57 of the SACAT Act. Secondly, the original proceedings were brought by employees of the Department for Health and Wellbeing in the exercise of their professional functions and there is no evidence that they did so except for the proper protection of SSN's wellbeing. Thirdly, the Public Advocate is similarly performing statutory functions. Fourthly, the applicants' position was not consistently advanced across the original proceedings and the internal review, and the position that prevailed was one that was only advanced after the first directions hearing on the internal review.

1. Leave is granted to proceed with the internal review.
2. The following orders made by this Tribunal on 29 October 2024 in respect of an advance care directive dated 15 April 2017 are affirmed:

2.1. The appointment of WLD as substitute decision-maker is revoked.

2.2. The remaining provisions of the advance care directive continue to have effect.

1. The order appointing a guardian made by this Tribunal on 29 October 2024 and its consequential orders are set aside and substituted by the following orders:

3.2. This order continues to have effect until further order of the Tribunal.

3.3. The Tribunal recommends order 3 is reviewed on or before Friday 12 May 2028.

1. The orders made by this Tribunal pursuant to s 32 of the Guardianship and Administration Act 1993 on 29 October 2024 are set aside and substituted by the following orders:

4.1. The Tribunal directs that SSN must reside in such place as the guardian from time to time thinks fit.

4.2. The Tribunal authorises the detention of SSN at the place the guardian decides he is to reside.

4.3. The Tribunal recommends that order 4.2. is reviewed on 13 November 2025.

1. The order appointing an administrator made by this Tribunal on 29 October 2024 and its consequential orders are set aside and substituted by the following orders:

5.1. ZNM is appointed full administrator of the estate of SSN.

5.2. ZNM shall at his discretion communicate with any person involved in the accommodation, health care and lifestyle issues of SSN about the needs of SSN relevant to the administration order.

5.3. Pursuant to s 44 of the Guardianship and Administration Act 1993, ZNM as administrator of the estate of SSN must, at such time being not more than once in any calendar year as the Public Trustee may require the administrator, provide the Public Trustee a statement of the accounts of the estate showing:

a) The assets and liabilities of the estate;

b) The income and expenditure of the estate over a specific period; and

c) Such other particulars relating to the estate as the Public Trustee may require.

5.4. SSN shall not make any will or other testamentary provision from the date of this order, except with the consent of and in the presence of the Public Trustee or an authorised officer from the Public Trustee.

5.5. This order continues to have effect until further order of the Tribunal.

5.6. The Tribunal recommends order 5 is reviewed on or before Friday 12 May 2028.

[1] Medical report and psychiatric reports of Dr Black both dated 1 October 2024.

[4] Evidence of Ms Smith, transcript of hearing dated 29 October 2024, p 11.

[5] Affidavit of Emma Jane Kerr, guardian, dated 13 February 2025.

[6] Guardianship and Administration Act 1993 s 66(2).

[7] Transcript of hearing dated 29 October 2024, p 4.

[8] Affidavit of Sonya Kay Edenden dated 7 February 2015.

[9] Transcript of hearing dated 29 October 2024, p 10.

[10] Transcript of hearing dated 29 October 2024, p 12.

[11] Evidence of Senior Sergeant Martin, transcript of hearing dated 29 October 2024, p 17.

[12] Affidavit of Sonya Kay Edenden dated 7 February 2025.

[13] Medical report of Dr Black dated 1 October 2024.

[14] Tribunal orders dated 29 October 2024; Statement of Reasons dated 29 October 2024.

[15] Statement of Reasons dated 29 October 2024 at [23].

[18] Statement of Reasons dated 29 October 2024 at [29].

[19] South Australian Civil and Administrative Tribunal Act 2013 s 70(5) ('SACAT Act').

[22] Application for internal review dated 28 November 2024.

[23] Affidavit of Emma Jane Kerr dated 19 February 2025.

[24] Transcript of hearing dated 26 February 2025, pp 34-45, 79.

[25] Outline of Argument dated 21 February 2025 at [17].

[26] Transcript of hearing dated 26 February 2025, p 18.

[27] Transcript of hearing dated 26 February 2025, p 20.

[28] Transcript of hearing dated 26 February 2025, p 24.