AH
[2019] WASAT 2
•9 JANUARY 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: AH [2019] WASAT 2
MEMBER: JUDGE T SHARP, PRESIDENT (ACTING)
MS D QUINLAN (MEMBER)
MS N OWEN-CONWAY (MEMBER)
HEARD: 14 SEPTEMBER AND 16 NOVEMBER 2018
DELIVERED : 9 JANUARY 2019
FILE NO/S: GAA 2411 of 2018
AH
Represented Person
Catchwords:
Guardianship and Administration Needs of person Best interests
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 17A, s 43(1)(b), s 43(1)(c), s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(a), s 64(1)(b), s 64(1)(c), s 64(1)(d), s 68, s 69, s 84
Result:
Decision affirmed
Review date varied
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:
Background and introduction
This matter comes before the Tribunal by way of an application under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act). The application was made by MO, a nephew of the represented person, AH.
AH is an 85-year-old woman currently residing at MercyCare in Wembley. AH has been diagnosed with dementia.
MO in his application sought a review of a decision made on 25 June 2018 by the Tribunal consisting of one member (decision under review). That decision includes the decision to appoint the Public Advocate as limited guardian of AH and the Public Trustee as the administrator of her estate.
The matter was heard over two days, on 14 September 2018 and on 16 November 2018. At the conclusion of the second day of the hearing, the Tribunal gave its decision and the reasons for its decision. These are those reasons, taken from the transcript and edited where required to give any necessary background.
The decision under review
The decision under review is as follows:
(a)the Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of AH with all the powers and duties conferred by the GA Act;
(b)the enduring power of attorney dated 1 October 2015 by which AH appointed CGM (another nephew of AH) to be her attorney was revoked;
(c)the Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia was appointed limited guardian of AH with the following functions:
(i)to decide where AH is to live, whether permanently or temporarily;
(ii)to decide with whom AH is to live;
(iii)subject to Division 3 of Part 5 of the GA Act, to make treatment decisions for AH; and
(iv)to determine the services to which AH should have access;
(d)the enduring power of guardianship dated 1 October 2015 by which AH appointed CGM to be her guardian was revoked; and
(e)the administration and guardianship orders are to be reviewed by 25 June 2019.
Proceedings at the Tribunal
In attendance on both days of the hearing were:
•the represented person, AH;
•the applicant, MO;
•RO, another nephew of AH; and
•CGM, also a nephew of AH.
AH has two other nephews, both of whom reside in Melbourne. Neither of them was in attendance at the hearing.
Also in attendance was a representative from the Office of the Public Advocate.
Legislation
In this part of these reasons, references to section numbers are references to section numbers of the GA Act.
The primary concern of the Tribunal is the best interests of AH; s 4(2).
In considering this application, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of AH as expressed, in whatever manner, at the time, or as gathered from her previous actions; s 4(7).
AH is presumed to be capable of looking after her own health and safety, making reasonable judgments in respect of matters relating to her person, managing her own affairs and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal; s 4(3).
Under s 43(1)(b), the Tribunal cannot consider appointing a guardian for AH unless it is satisfied on the evidence that she is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
Under s 64(1)(a), the Tribunal cannot appoint an administrator of AH's estate unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
Mental disability is defined in s 3 to include dementia.
If the Tribunal finds that AH is a person for whom guardianship and administration orders can be made, the Tribunal must then determine whether she is in need of such orders. If the needs of AH can be met in a manner less restrictive of her freedom of decision and action, then orders should not be made; s 4(4), s 43(1)(c) and s 64(1)(b).
If the Tribunal finds that AH is in need of guardianship and administration orders, it must then decide who the guardian and the administrator should be, what authorities should be given to the guardian and to the administrator and what review date should be set, given the requirement that orders must be reviewed at least once every five years; s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84.
With regard to the authority given to a guardian, if a limited order is sufficient to meet the needs of AH, then a plenary order should not be made. If limited guardianship orders are made, the orders must place the least restriction necessary on AH; s 4(5) and s 4(6).
The enduring powers of guardianship and administration granted by AH to CGM
The revocation of enduring powers of guardianship and administration granted by AH and held by CGM as part of the decision under review is not challenged by MO. In any event, it is understood that CGM is no longer willing to undertake these roles.
Medical reports
At the time of the decision under review and on the first day of the hearing in this proceeding, the Tribunal had before it a report from Dr M, a geriatrician. Dr M had told the Tribunal that AH had been diagnosed with dementia since at least June 2017. According to Dr M, AH demonstrated deficits in insight, judgment, safety awareness, orientation and memory.
Dr M assessed AH as being incapable of making reasonable decisions concerning both simple and complex financial matters, any legal matters, medical treatment procedures and her accommodation and support needs. AH was also assessed by Dr M as no longer being capable of executing either an enduring power of attorney or an enduring power of guardianship.
At the first day of the hearing, the applicant expressed some concerns about the report of Dr M. It was his understanding that a further medical assessment of AH had been conducted, although he had not yet seen the resultant medical report. The Tribunal accordingly adjourned the hearing to 18 October 2018 to allow that report to be produced and considered.
The Tribunal then received a further report, this time from Dr B dated 12 September 2018. That report was filed with the Tribunal on 27 September 2018 but it was incomplete. A full copy of Dr B's report was received by the Tribunal on 3 October 2018.
Dr B confirmed Dr M's diagnosis and conclusions about AH.
However, the Tribunal was then told that it should also expect to receive a further report about AH. By 18 October 2018 this further report had still not been provided and the Tribunal again adjourned the hearing, this time until 16 November 2018.
Another report was given in respect of AH. In this case it was from Dr L, a psychiatrist. It is dated 20 October 2018 but was sent to the Office of the Public Advocate and was not received by the Tribunal until 12 November 2018.
Dr L's report confirms the previously made diagnosis of dementia. Dr L also confirms that AH lacks competence in managing her own finances, although she opines that AH 'has capacity to appoint her guardian'.
The issue before the Tribunal
The applicant and the other parties present at the hearing all agreed that the decision to be made by the Tribunal is who should be appointed guardian of AH and administrator of her estate.
MO, the applicant, put himself forward as willing and suitable to take on both roles.
RO also put himself forward as willing to act as guardian and administrator, but only jointly with MO.
CGM indicated that he is not willing to take on either role.
The wishes of AH
AH expressed the view that she would like to return to her home in Floreat. She said that she had endeavoured to obtain services from Silver Chain but 'in the end they were doing nothing for me, so I kind of felt as though it was not necessary to have them, and I explained that to them, and, you know, prior to that they were calling in once a week, and I didn't think it was at all necessary in the end to have them, because they weren't caring for me'; ts 13, 16 November 2018.
AH supports the appointment of MO, but does not support the appointment of RO. She says that RO operates a business and is very busy and is not in Perth very much; ts 16, 16 November 2018.
Disposition
The Tribunal accepts the evidence of Dr M, Dr B and Dr L. To the extent that there is any conflict between the evidence of the medical professionals, the Tribunal prefers the evidence of Dr M, who has seen AH more frequently than the other medical professionals.
The Tribunal concludes, and we do not understand there to be any dispute in relation to this issue, that despite the presumptions that AH has the capacity to look after her own health and safety, make reasonable judgments in respect of matters relating to her person, to manage her own affairs and to make reasonable judgments in respect of matters relating to her estate, AH:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)needs an administrator of her estate;
(c)is incapable of looking after her own health and safety;
(d)is unable to make reasonable judgments in respect of matters relating to her person;
(e)is in need of oversight, care or control in the interests of her own health and safety; and
(f)is in need of a guardian.
The next decision is who should be appointed as guardian for AH. The Tribunal cannot appoint the Public Advocate as guardian unless there is nobody else suitable and willing to take on the role. The Tribunal is also precluded from appointing a plenary guardian if the Tribunal considers that a limited appointment will meet the needs of the person.
MO and RO have put themselves forward as being willing to take on the role of guardian.
RO says that he is prepared to take on the role of guardian jointly with MO. We do not understand RO to be putting himself forward as sole guardian, and even if he were to do so, we accept the submission of AH that because of RO's own business interests and the difficulties he would have in being available on a daily or at least regular basis for AH, he would not be suitable. We have also decided that a joint appointment of MO and RO, particularly in the circumstances where MO and RO live in different parts of Australia, would not be effective.
We then turn to consider the suitability of MO as guardian. The first and obvious issue is that MO lives in Bunbury, and our assessment of AH's needs at the present is that we consider that her decisionmaker must be available regularly, readily and, more importantly, fairly quickly.
That in itself does not render MO unsuitable for the appointment as guardian. However, the reason why the Tribunal does not consider that MO is suitable for this role is that at some point in the future, we anticipate that the guardian will need to make some decisions about AH that AH does not agree with. We accept the submission of CGM that if MO is the one to make such a decision then that may cause a breakdown in the relationship between AH and MO. We have noted that AH speaks very fondly of MO and has, in fact, nominated him as the person that she would like to be the guardian. It would be unfortunate if, as CGM says, that appointment results in there being 'one less social support and family support member in her life'; ts 25, 16 November 2018.
The Tribunal therefore considers that the Public Advocate should be appointed as guardian of AH.
We see no need to appoint a plenary guardian. In our view, the functions of the guardian should be exactly the same as made in the decision under review, namely, the decision as to where AH is to live, with whom, medical treatment decisions and decisions as to services.
The Tribunal now turns to the issue of who should be the administrator of AH's estate. The Tribunal considers that until a decision has been made by AH's guardian as to where AH is to live and what services she requires, then the Public Trustee should continue in the role of administrator of AH's estate. The difficulty that we have in appointing anybody other than the Public Trustee is simply that the guardian's views, particularly around accommodation, and those of MO are quite different and we wish to avoid the possibility of the guardian's decisions being controlled by the administrator. Section 68(3) of the GA Act requires the Tribunal to take into account as far as possible the compatibility of the proposed appointee with the guardian.
We consider that at this time the Public Trustee should be appointed to be the administrator of AH's estate with plenary functions.
The Tribunal therefore found it unnecessary to consider the suitability of MO as administrator, either solely or jointly with RO. Nothing in these reasons, though, should be taken as any expression on the part of the Tribunal that MO would or would not be suitable for that appointment in due course. That will be an issue for the Tribunal upon review of these appointments. However, we note what CGM says, having managed AH's estate under the now revoked power of attorney, that the estate is 'sizeable' and requires professional management. It is CGM's view that MO does not have the experience or qualification to manage the estate.
There is a requirement under the Act that these decisions are reviewed periodically and no less than every five years. In the decision under review, the Tribunal specified the review date to be 25 June 2019. Given the anticipated difficulty in settling on a place where AH should live, the Tribunal has decided to vary the review date to a date two years from the final day of the hearing in this proceeding.
In conclusion, the Tribunal for the reasons set out above affirms the decision under review, other than the variation that the administration and guardianship orders are to be reviewed on 16 November 2020.
Orders
The Tribunal on 16 November 2018 affirmed the following orders made on 25 June 2018:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA) (GA Act).
2.The enduring power of attorney dated 1 October 2015 signed by the represented person is revoked.
3.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be 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)subject to Division 3 of Part 5 of the GA Act, to make treatment decisions for the represented person; and
(d)to determine the services to which the represented person should have access.
4.The enduring power of guardianship dated 1 October 2015 granted by the represented person is revoked.
5.The Tribunal approves the delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of Public Advocate.
The Tribunal on 16 November 2018 varied the orders made on 25 June 2018 as follows:
1.The administration and guardianship orders are to be reviewed by 16 November 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T Sharp, ACTING PRESIDENT
9 JANUARY 2019
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