AR
[2021] WASAT 137
•11 OCTOBER 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: AR [2021] WASAT 137
MEMBER: MS F CHILD, MEMBER
HEARD: 18 AND 25 AUGUST 2021
DELIVERED : 11 OCTOBER 2021
FILE NO/S: GAA 2281 of 2021
GAA 2537 of 2021
RE: AR
Catchwords:
Guardianship and administration - Applications for the appointment of guardian and administrator and for intervention in an enduring power of guardianship - Appointor with diagnosis of cognitive impairment following strokes - Conflict between adult children regarding entry into residential care - Wishes of the appointor to leave nursing home - Whether 24 hour care could be provided at appointor's home - Whether enduring guardians and attorneys should negotiate a reverse mortgage to fund in home care - Obligation on attorneys to act with reasonable diligence - Obligation on enduring guardians to exercise judgment to make best interests decisions - Less restrictive alternative of existing enduring powers of attorney and guardianship to meet needs - No need for orders
Legislation:
Family Court Act 1997 (WA)
Guardianship and Administration Act 1990 (WA), s 4, s 4(4), s 4(7), s 43, s 43(1)(b), s 43(1)(c), s 44(5), s 45(1), s 51, s 64(1), s 104, s 104(1a), s 107, s 110
Result:
Applications dismissed
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
GG [2021] WASAT 133
Gibbons v Wright [1954] HCA 17; 91 CLR 423
SM [2015] WASAT 132
Szozda v Szozda [2010] NSW SC 804
REASONS FOR DECISION OF THE TRIBUNAL:
These are the reasons for the decisions made on applications brought under the Guardianship and Administration Act 1990 (WA) (GA Act) seeking orders to be made for AR.
In all reported decisions of the Tribunal in GA Act matters any identifying information is removed to protect the privacy of AR.
Background
AR is an 86-year-old man who lives in a nursing home. His wife died in February 2020 and he has four living children; sons M and P, who are the applicants in this matter (applicants) and daughter DM and another son D who are appointed under AR's enduring powers of attorney and guardianship (the attorneys or enduring guardians).
AR suffered strokes in December 2020 during a medical procedure. Subsequent assessments indicate that he experiences cognitive impairment as a result. AR was admitted to a nursing home on 30 December 2020 from hospital after a period of rehabilitation.
Applications and the proceeding before the Tribunal
The applicants filed an application on 3 June 2021 pursuant to s 110N of the GA Act seeking intervention in the Enduring Power of Guardianship (EPG) made by AR on 1 March 2020 by which he had appointed D and DM jointly as his enduring guardians. AR had appointed D and DM as his attorneys in an Enduring Power of Attorney (EPA) made on the same date.
Because the applicants proposed 'the transfer of the authority' for financial and personal decisions for AR to the Public Trustee and the Public Advocate, by case management orders made on 21 June 2021, their application was treated as an application for the appointment of a guardian and administrator of the estate of AR in addition to their original application.
The case management orders made included referral of the application for investigation by the Public Advocate of a number of matters including the need for the appointment of a guardian and administrator for AR and a report of his views and wishes.
The orders also required the attorneys and enduring guardians to file copies of the EPA and EPG made by AR and a statement of his assets and liabilities and regular income and expenditure and a statement setting out details of decisions made by them as enduring guardians. The orders also alerted parties to the opportunity to make an application for inspection of documents filed in the proceeding.
The applications were first heard on 18 August 2021. The hearing was attended by P, D and DM in person and M (by telephone from Victoria where he lives).
AR did not attend the hearing. The Tribunal received a letter from his general practitioner who advised that AR was unfit to attend. The Facility Manager and the clinical nurse specialist at the nursing home confirmed to staff of the Tribunal prior to the first hearing that AR was unable to participate in the hearing by telephone. The applicants objected to this and said that it reflects a pattern of excluding AR from key life course decisions.
Following hearing from the applicants and D on behalf of the attorneys and enduring guardians, the hearing was adjourned to enable P (on behalf of the applicants) to inspect the material before the Tribunal. In particular he was to review the medical and other professional reports and make any further submissions.
At the second hearing on 25 August 2021 the Tribunal heard from the parties and from the Facility Manager of the nursing home in which AR is living.
Following that hearing the decisions on the applications were reserved. The following comprise the reasons for the decisions made.
Evidence and material before the Tribunal
In addition to hearing from the parties as referred to above, detailed written submissions were filed by the applicants and a number of other documents were filed. These include:
•The documents ordered to be filed by the attorneys and enduring guardians; including copies of an EPA and EPG dated 1 March 2020 made by AR, a statement of his estimated monthly income and expenditure and their responsive submissions.
•A report by the Public Advocate following the investigation.
•A My Aged Care Support Plan dated 22 December 2020 which reports:
a)that AR was transferred for rehabilitation 'following a trans catheter aortic valve implantation (26 November 2020) for severe aortic stenosis complicated by multiple cortical infarcts postoperatively';
b)AR's medical history includes 'ischaemic heart disease, severe aortic stenosis, mitral regurgitation, atrial fibrillation, congestive cardiac failure, hypothyroidism, anaemia, vitamin D deficiency, benign prostatic hyperplasia and duodenal ulcer';
c)AR is reported as requiring supervision to ambulate with a four wheeled walker and requiring standby assistance to ambulate without an aid. He is described as a high falls risk especially when fatigued;
d)the report notes that AR needs to be reminded to use his walker and sensor mats are recommended. AR is reported to require prompting and encouragement to eat, to require assistance with toileting tasks, to manage his medications and finances due to cognitive issues;
e)the report notes 'Family report significant deterioration since recent operation'. He experiences short term memory issues and impaired judgment. AR is reported to experience anxiety and depressive symptoms since the loss of his wife and is taking antidepressants. He experiences loneliness and episodes of confusion, when he wakes he cannot remember if his wife is alive or not. He can be disorientated to the time of day and place, confusing middle of night for day-time. He is reported to often experience word finding difficulty and can lose track of conversation;
f)a Montreal Cognitive Assessment score of 8/30 on 16 December 2020 is reported. AR is said to show difficulty with planning and sequencing and lacking safety awareness; and
g)given the cognitive issues faced by AR it is recommended that he requires 24/7 care and supervision and he is recommended for high level residential and respite and permanent residential care.
•A cardiologist's report dated 25 January 2021 records multiple health problems experienced by AR and 10 medications. The report refers to a review initiated by D and responds to questions regarding AR's need for various medications.
•A letter from a urological surgeon regarding treatment of AR advising operative intervention is not appropriate and AR remains with a catheter.
•A Montréal Cognitive Assessment completed 21 January 2021 reporting a score of 5/30 which is said to be indicative severe cognitive impairment.
•A geriatrician's report of his review of AR dated 30 March 2021 notes referral of AR for assessment because of concerns about his ability to make decisions and conflict between his children:
a)the geriatrician reports AR was 'clearly fluctuating in his understanding of his current situation' reporting at times AR being fixated dramatically on a sense of being railroaded into coming into [the nursing home]. The geriatrician notes that 'although he presents well there are number of inconsistencies that emerge on closer questioning … most prominently he thought he was still in England'. The geriatrician comments that when he attempted to reorient AR, he did not accept the correction;
b)AR is reported as 'being at odds with two of his sons [and] quite happy with the support of his daughter and at other times expressed [the] exact opposite';
c)in respect of orientation to his family AR fluctuated between saying he had four boys, three boys and one girl two boys and two girls. He struggled to express how he came to be in the nursing home and could not recall having the stroke;
d)the geriatrician reports that AR thinks it has been over 12 months since he arrived in the nursing home and did not easily accept only being there three months when corrected. The geriatrician reports that AR does not appreciate he is a falls risk and [only] had a vague recollection of having a fall and going into [the Emergency Department]. The geriatrician observes that AR's insight into his [falls] risk is 'quite lacking' but expresses concern about the risk without a gait aid when AR is fatigued. AR is reported not to believe there is anything affecting his thinking or his memory;
e)although the geriatrician says he was unable to complete a full Mini Mental State Examination, he reports that AR was 'clearly not oriented to place', his 'registration of three items was two out of three, recall zero out of three'. AR's completion of the clock drawing test was reported as quite impaired. The impression drawn by the geriatrician from this was that AR has cognitive impairment syndrome in the context of cortical strokes;
f)the geriatrician concludes that AR has some significant underlying cognitive impairment, which affects his ability to retain and process information. He goes on to say he expects that AR's ability to make rational and logical decisions is likely to remain impaired. He considers '[t]here is likely to be an underlying dementia syndrome as a result of cerebral vascular disease based on the collateral history and decline in function [but] a chronic delirium cannot be excluded and it [is] probably still early to confirm that particular diagnosis';
g)the geriatrician reports he spoke to AR's daughter with his permission and updated her on his opinion. DM is reported to have said the family wanted AR to return home after the procedure, but there were significant practical barriers to this, for example AR could previously manage his indwelling catheter but this is variable now [due to] his ongoing decline in cognition;
h)the geriatrician notes that 'being mindful of his cognitive impairment means we should try to ensure some sort of safeguard if a significant decision need to be made';
i)The geriatrician concludes that '[o]verall [AR] can clearly articulate what he wants even if he lacks insight into why he is now in this particular situation'.
•The clinical nurse manager of the nursing home in a Primary Carer Guide dated 23 July 2021 describes AR as having severe cognitive impairment requiring assistance prompting and encouragement [and] often times refusing care such as taking medications:
a)DM is reported to visit almost every day and sometimes takes AR out for social leave. D visits at the weekend. AR is reported to speak highly of DM and how she takes care of him.
b)disagreement is identified between the children of AR. M and P are said to have commented that AR does not need medications and does not need walking aids and could live alone; and
c)D and DM are reported to have followed all medical advice for AR's health and safety and wellbeing.
•Documents from the nursing home include a summary care plan, nursing notes, discharge summaries from hospitals, emails from nursing staff regarding interactions with M and P, behaviour charts of medication refusal by AR, incident report of falls suffered by AR, psycho geriatric assessment scale, list of medications and fee statements.
•The nursing notes submitted document incidents where AR has been unable to manage his indwelling catheter, interfering with the bag or pulling out his catheter, being unable to remember having done so and the catheter needing reinsertion. At times AR is reported as agitated, verbally aggressive and resistive to care refusing medications and to use his walker. Other documents record refusal of medications and falls.
•Service provider reports from the agency supervising telephone contact between the applicants and AR report on the restrictive nature of the contact arranged and notes that AR appears to have good relationships with all his children. In relation to contact with P and M, AR is reported as clearly happy to speak to them. AR is described as difficult to divert from topics such as his discontent about living in a nursing home although P and M are reported to have attempted to do so.
•A letter from AR's former general practitioner noting AR had been his patient for 20 years prior to his admission to the nursing home. The letter refers to numerous occasions when the doctor and AR spoke about the care of AR's late wife. The doctor says that on 21 May 2019, AR was distressed as his wife was in hospital and needed care and two of their sons were insisting on her being cared for inappropriately at home. The doctor goes on to say that on 18 June 2019 AR advised him AR's wife was happy in the nursing home.
•A letter written by M written prior to the death of AR's wife and the children's mother, alleging AR had shown preference for DM and D and had excluded M from the family home.
•A timeline of telephone calls to the enduring guardians which reports calls to and from AR.
Legislation and principles to be observed
To intervene in an EPG the Tribunal must be satisfied that the applicants have a proper interest in the matter.[1] The Tribunal must then consider whether it should exercise its discretion to intervene in the manner proposed.[2]
[1] Section 110J, GA Act.
[2] Section 110N(1), GA Act.
To appoint an administrator of his estate the Tribunal must be satisfied that AR is unable by reason of a mental disability to make reasonable judgments about all or any part of his estate and he is in need of an administrator of his estate.[3]
[3] Section 64(1), GA Act.
To appoint a guardian the Tribunal must be satisfied that AR is incapable of looking after his own health and safety, unable to make reasonable judgments about his person, or is in need of oversight care or control in the interests of his own health and safety and is in need of a guardian.[4]
[4] Section 43(1)(b) and s 43(1)(c), GA Act.
If satisfied that AR is a person for who orders can and should be made, the Tribunal must then consider who should be appointed. The Tribunal may not appoint the Public Advocate as guardian unless satisfied that there is no one else suitable or willing to be appointed.[5]
[5] Section 44(5), GA Act.
All these provisions are subject to principles which the Tribunal must observe in all proceedings brought under the GA Act, which are set out in s 4 of the GA Act.
The principles provide that the primary concern of the Tribunal is the best interests of AR.
The principles also provide that AR is presumed to be capable of looking after his own health and safety, making reasonable judgments in respect of matters relating to his person, managing his own affairs, and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal.
The principles say that orders should not be made unless they are needed; if the needs of AR can be met by less restrictive means then orders should not be made for him. If an order is made it should be in the least restrictive terms possible.
Finally, the principles require that in considering any matter relating to AR, the Tribunal should seek to ascertain his wishes as expressed at the time or gathered from his previous actions.[6]
Is AR person for whom guardianship and administration orders may be made?
[6] Section 4(7), GA Act.
The applicants say that their father's decision-making capacity has been reduced since he suffered the stroke. They assert that although he needs some assistance now with financial and medical decisionmaking he can weigh up the risks benefits and consequences of a decision to leave the nursing home and has enough capacity to make that decision.[7]
[7] ts 16, 17 and 21, 18 August 2021 and ts 27 and 28, 25 August 2021.
They say he has periods of lucidity and can clearly express his wishes. In the hearing P said AR 'has times of amazing clarity when we speak to him … and times when the clarity is not there'.[8]
[8] ts 26, 25 August 2021.
The applicants say that their father has been a very physically fit man who has until a year ago been a regular gym goer, swimmer, golfer and walker and that being in the nursing home has resulted in deconditioning.
The applicants challenge the results of the cognitive assessments of AR and argue that this does not reflect his functioning which they have observed. The applicants say that the low scores achieved in a cognitive assessment may have been because AR had a urinary tract infection at time of assessment and because of his limited education and poor literacy he would always score poorly on cognitive tests.[9]
[9] Applicants' submissions: ts 25, 25 August 2021.
D says the picture of AR's physical health is not accurate and that AR gave up many of his activities to care for his wife in 2019 and did not return to them after she died, despite encouragement to do so. D says AR's poor health significantly restricted many of his activities. D says that AR's cognitive impairment now impacts on his health and on his care and his understanding of his circumstances.
All the professional evidence supports AR having a significant if not severe cognitive impairment. Although the applicants' submission is that the scores of cognitive assessments do not accurately reflect AR's cognition it is usual for an adjustment in the scoring of cognitive tests to be made for education level. More fundamentally there is a consistency in all the various professional reports regarding AR's functioning over time since AR's stroke in November 2020.
There is no contrary opinion other than that of the applicants who although they acknowledge AR has a memory impairment, say that at times he is lucid and able to express his views. This is not inconsistent with the geriatrician's report which notes that AR 'presents well'.
The applicants do not appear to accept the level of confusion and disorientation reportedly observed by others including the geriatrician on examination of AR and the Facility Manager in her contact with him at the nursing home. As the applicants do not accept the degree of cognitive impairment of AR, they do not accept AR's capacity to make judgments about where he lives is impaired.
The geriatrician's opinion is that AR is lacking insight into his risks and his care needs. This lack of insight I infer means that AR does not appreciate the care and support he requires including his most basic needs for the management of his indwelling catheter. This is demonstrated in the evidence of the nursing notes confirmed by the Facility Manager in the final hearing that AR is resistant to care and has removed the catheter on four occasions, at times requiring medical attention and now needs to be checked hourly by staff.[10]
[10] ts 14, 25 August 2021.
The evidence supports that AR does not accept he is at risk of falls as he has poor recall of past falls and refuses or forgets to use his walker. At times he is reported as resistant to necessary care being provided to him and is disoriented to place and to person. AR's lack of insight into or appreciation of his care needs would, I conclude, lead to an inability to weigh up the risks and consequences of a move from the nursing home.
Where there is a conflict between the evidence of the applicants and the health professionals regarding AR's functioning, I prefer the professional evidence regarding AR's functioning and cognitive impairments as they have the experience and expertise to make such assessments and the Facility Manager has more regular contact with AR. Their opinions are consistent with the other professional reports and the contemporaneous nursing notes.
I am satisfied on the evidence that AR has cognitive impairment likely secondary to the acquired brain injury caused by the strokes described in the geriatrician's report. I am satisfied that this is a mental disability for the purposes of the GA Act.
It does not follow that a diagnosis of acquired brain injury or of dementia (as referred to by the Facility Manager) leads to the conclusion that the person with that diagnosis is incapable of making reasonable judgments. However, on all of the professional evidence of the extent of AR's cognitive impairment I am satisfied that the presumption of capacity is displaced and find that AR is a person for whom both guardianship and administration orders may be made.
I find that AR is unable, by reason of his brain injury, with the consequent memory and cognitive impairment, to make reasonable judgments about his estate.
Although it is accepted to be AR's strongly expressed wish, I am unable to accept the contention of the applicants that AR retains capacity to make reasonable judgments about where he should live. There is distinction to be drawn between a person's ability to arrive at and convey their wishes and that person's capacity in respect of personal matters.[11] I find that all of the paragraphs in s 43 of the GA Act apply to AR.
[11] GG [2021] WASAT 133 at [63].
According to all the consistent professional reports and evidence, which I accept, I find AR is incapable of looking after his own health and safety as he is reliant on others for all aspects of his care including prompting and supervision of his medication and supervision of his continence management, he is unable to make reasonable judgments about his person as he lacks insight into his physical care needs and is in need of oversight, care or control in the interests of his health and safety as he lacks insight into his risk of removal of the catheter and of falls and needs prompting and supervision of his essential activities of daily living.
AR's wishes
All the parties agree that AR does not want to live in a nursing home. He has reportedly maintained this view since his admission. According to the Facility Manager, at other times AR is reported as settled and participates in activities.[12] AR's former general practitioner's letter suggests that in the past AR has not been opposed to nursing home care if needed but the applicants say he now regrets the decision to place his wife into care. In their submission the enduring guardians say that their mother had advanced dementia, was terminally ill and AR had his own health problems and was struggling to care for her despite assistance.
[12] ts 13, 25 August 2021.
The Public Advocate advises that AR confirmed his wish to go home when interviewed. AR said he feels capable of living in his own home and if at home felt able to walk around his block without using a walking frame. He expressed that his independence had been taken away and that he felt forced to live in the nursing home without any explanation.
When asked by the Public Advocate who he would trust to assist him AR nominated DM.
Although the applicants assert that AR has been consistent in his wish to remove D and DM as his enduring guardians and attorneys, in the first hearing P conceded that AR's view did 'wax and wane'.[13]
[13] ts 35, 18 August 2021.
In the letter written by M to AR prior to AR's wife's death, M puts to AR that AR has excluded M and P from the family in preference to DM and D. This letter was written either in 2019 or early 2020, but if the allegations made by M are true it can be inferred that AR had reliance on DM and D in preference to M and P and that his relationships with M and P were strained, at least at that time.
M agreed that his relationship with AR was at a low point at that time but now says this was later restored and he now has a positive relationship with his father.
Having regard to the differing reports of AR's wishes by the applicants, the Public Advocate and the report of the geriatrician regarding AR's changing views about conflict with his family and AR's reported disorientation to person, I am not satisfied that I am able to ascertain AR's current wishes with regard to the management of his affairs with any degree of certainty.
In ascertaining a person's wishes the Tribunal can have regard to that person's previous actions.[14] I consider that the EPA and EPG may be considered an expression of AR's wishes regarding the management of his personal and financial affairs given at the time of execution.
Is AR in need of guardianship and administration orders or are there less restrictive means by which his needs might be met?
[14] Section 4(7), GA Act.
Even when a person lacks capacity in the relevant spheres of decisionmaking, the GA Act requires that a person be in need of a guardian and or an administrator before those orders can be made. If a person's needs can be met less restrictively, orders should not be made.[15]
[15] Section 4(4), GA Act.
The EPA and EPG made by AR on 1 March 2020 by which he appointed D and DM jointly as his attorneys and enduring guardians comply with the formalities to create an EPA and EPG under the GA Act.[16]
[16] Section 104 and s 110E, GA Act.
Although there is reference in the My Aged Care Plan to AR suffering anxiety and depression following the death of his wife, there is no suggestion from any party that AR lacked capacity to make an EPA and EPG and no medical evidence before the Tribunal regarding that period other than references made in AR's former general practitioner's letter regarding discussions about care of AR's late wife.
The applicants do not argue that the EPA and EPG were not capably made by AR. They now say he has simply changed his mind and wishes to revoke them.
A handwritten document was reportedly prepared to that effect on 15 February 2021 when AR was visited at the nursing home by his son P. The nursing notes state that at the time AR and P were advised that because of AR's cognitive impairment that the Tribunal process would be applicable. Following this it is understood the applicants brought the application to the Tribunal.
Under the GA Act to make an EPA and an EPG the donor or appointor (of an EPG) must be of full legal capacity.[17] The mental capacity to execute an instrument such as a EPA and EPG or the revocation of such a document is that the person concerned has the capacity to understand the nature of the transaction when it is explained or the nature of the legal relationship created.[18] For a revocation to be effective the donor must be capable of a revocation, to understand the nature and ramification of such an act.[19]
[17] Section 104(1a) and s 110B, GA Act.
[18] Gibbons v Wright [1954] HCA 17; 91 CLR 423.
[19] Szozda v Szozda [2010] NSW SC 804.
Based on all of the medical and allied health evidence, I find that it is more likely than not that AR lacked capacity to revoke the existing instruments because of the nature of his significant memory and cognitive impairments, his disorientation to person and the reported variability as to who he trusts to manage his affairs.
Whether AR is in need of a guardian and an administrator turns on the question of whether the existing EPA and EPG are effective to meet his needs and are operating in his best interests.
The applicants' submissions
The applicants say that the enduring attorneys and guardians have not acted in AR's best interests as they have neglected AR's expressed wishes that he not live in a nursing home. The applicants say AR feels betrayed by the guardians for not giving him the choice or even a discussion about where he is to live. They deny they have said AR can live at home alone but say there is no compelling medical reason that would prevent AR returning to his home with supports and he has sufficient resources to fund in home care through a reverse mortgage on his home. They contend that he would receive more direct hours of care and better care at his home than he is receiving in the nursing home in which he now lives.
The applicants say that the enduring guardians have misunderstood and abused their roles and responsibilities as they have not adequately consulted with AR and have not involved him in decision-making which is inconsistent with the move to supported decision-making pursuant to the obligation under the United Nations Convention on the Rights of Persons with Disabilities to which Australia is a signatory.
In particular, the applicants say the enduring guardians have unreasonably restricted AR's contact with the applicants to supervised telephone contact once per week. They say this is too restrictive and oppressive and further isolates AR. They say there is no justification for the denial of access to them and a telephone should be restored to AR's room. The applicants say that the decision of the guardians to limit their contact with their father is a deprivation of his liberty to communicate with family members and a violation of AR's basic human rights.
According to the applicants the enduring guardians have acted with animus and malice to AR and to the applicants.
The applicants say that the enduring guardians have breached their responsibilities to AR and have shown they are not fit and proper people to continue in their roles. The applicants say because of a lack of trust in the enduring guardians, AR now questions the medications given to him saying he is given up to 13 medications per day. They report AR saying that he was given a walker to use by the enduring guardians without any explanation. They say the care of his feet has been neglected in the nursing home.
The applicants submit that the Public Advocate should be appointed as an independent guardian to assess AR's need for nursing home care and to make decisions about the contact AR has with them.
The applicants submit that the attorneys have excluded AR from information about his finances and that he has lost trust in them as a result.
The applicants propose the Public Trustee be appointed as the administrator of AR's estate.
M says that the appointments of the Public Advocate as his guardian and Public Trustee as administrator of AR's estate would enable AR to 'participate more fully in decision-making' as AR 'would feel there is more transparency' and this would 'make a significant improvement in his wellbeing'.[20]
Need for an administration order - is the EPA a less restrictive alternative?
[20]
Turning first to the question of the need for an administration order.
The applicants say that 'the biggest area where [AR] feels betrayed' is 'he knows that, in moving to the [nursing home] that there was a significant costs that had to be paid, which came from his finances to support the deposit'.[21] There are references in the written submissions to AR's great concern to a 'lack of response' to AR's questions to the guardians 'including how his move to [the nursing home] was paid including the $350,000 deposit'.[22]
[21] ts 27, 18 August 2021.
[22] Submissions of the applicants.
The applicants say they do not know if there has been any mismanagement by the attorneys of AR's finances but it was possible.[23] In the first hearing P said 'I'm not going to make an accusation that his finances are mismanaged' but asserts that AR has 'completely lost trust in the guardians, in respect of his care and his finances and his requests for bank statements have been ignored'.[24]
[23] ts 34, 18 August 2021.
[24] ts 35, 18 August 2021.
The allegations made by the applicants are denied by the attorneys who say that to the extent possible, having regard to his memory and cognitive impairments, AR has been involved by them in discussions about his care and AR is given bank statements and is taken to the bank by DM.[25]
[25] ts 48, 18 August 2021.
D says that AR's house has not been sold contrary to his reported belief and a deposit has not been paid to the nursing home but rather the attorneys are paying the nursing home daily care fee.[26] D says he believes that his brothers have told AR that his house had been sold or rented out.[27]
[26] ts 41, 18 August 2021.
[27] ts 42, 18 August 2021.
The attorneys provided the statement of AR's finances as ordered by the Tribunal. In their submissions and in evidence given in the hearing D outlined their decision-making in relation to the payment of AR's nursing home residential aged care fees and possible need for sale of his property in the future.
D says the attorneys have delayed the sale of AR's house firstly because they were unclear whether he would recover sufficiently to be able to return there and now in an effort to enable AR to visit his home from time to time.[28]
[28] ts 41, 18 August 2021.
M argued in the first hearing that D should have considered a reverse mortgage to fund 24 hour care in AR's own home. M expanded this proposal in later written submissions and in the final hearing. M estimates that full-time care could be provided to AR in his own home for three years given his available resources supplemented by an aged care package.
D says that the approximate costs of 24 hour care in AR's own home are known to the family as this had been investigated when their mother had been admitted to residential care against the objections of M and P.
According to D, the cost estimate M provides is not fully costed to provide the 24 hour care which AR needs. The annual cost of 24 hour care to AR would, according to D, deplete the equity in AR's home within two years and then D asserts he would have no resources and no guarantee of a place within a nursing home.[29]
[29] ts 58, 18 August 2021.
M agreed that the quote he had obtained was for a package of eight hours active care, eight hours passive care and a sleep shift. However, he asserts that this would be an improvement in AR's care based on a newspaper report of a survey of Australian nursing homes that the average hours of direct care provided in 24 hours to nursing home residents is 2.8 hours.[30]
[30] Applicants' submission Bentley Chartered Accountants (2015) Annual Survey of Nursing Homes.
D says their assessment is that AR does not have the resources to meet in home care costs required for his level of care and the option proposed by M is unsustainable to meet AR's care needs in light of the estimate of his life expectancy of five years which had been provided by the cardiologist.
Although the applicants do not agree with the judgment of the attorneys not to pursue a reverse mortgage on AR's home to fund home care costs, such a decision is open to the attorneys. Having regard to their costings and assessment of AR's ability to afford such care and the advice they have received about his care needs the decision is not an unreasonable one. Other than the suspicion of the applicants due to their lack of information and the acknowledged conflict with the attorneys, there is nothing put by them or demonstrated in the material before me that would support a finding that the attorneys have not acted with reasonable diligence to protect the interests of AR as they are required to do.[31]
[31] Section 107, GA Act.
Other than the decision not to pursue the reverse mortgage and the allegation that AR has been excluded from information (which is denied) no other allegations are made by the applicants regarding the management of AR's estate under the EPA.
I am satisfied that the EPA reflects the wishes of AR, given at a time when there is no evidence that he was not capable of making that choice. The lack of trust which the applicants now say AR has in the attorneys is not consistently reported. Notably when asked by the independent investigator from the Public Advocate's office, AR identified DM as the person he trusted to manage his affairs.
In all the circumstances I am satisfied that the EPA is a less restrictive alternative to meet the financial management needs of AR. As such I find there is no need for the appointment of an administrator of AR's estate.
Need for a guardianship order - is the EPG a less restrictive alternative?
In light of the clear conflict between the applicants and the enduring guardians about where AR should live and the contact AR has with the applicants, I considered whether there was a need for a guardian, being the Public Advocate, to determine these questions.
For the following reasons I do not consider there is a need for the appointment of a guardian of AR.
The EPG is in effect
AR's lack of capacity enlivened the enduring guardians' authority to act under the EPG made by him.[32]
[32] Section 110F, GA Act.
Although the applicants say that AR does not lack capacity about certain matters, I consider that the enduring guardians were and are entitled to rely on the advice and opinions of the health professionals of the treating team at the rehabilitation hospital and more recently the geriatrician and the Facility Manager regarding AR's significant cognitive impairment and the impact of it on his functioning.
Based on the professional and medical opinion I find that the EPG made by AR is in effect as I am satisfied that he lacks capacity to make reasonable judgments in respect of matters relating to his person.
That there is an EPG made by AR is relevant to the question of whether there is a need for the appointment of a guardian for him. This is so since an EPG is a less restrictive option to meet personal decisionmaking needs of a person than a guardianship order made by the Tribunal.
Intervention in the EPG
The Tribunal may intervene to revoke or vary an EPG pursuant to s 110N of the GA Act on an application if satisfied that the applicants have a proper interest,[33] if the enduring guardian or guardians wish to be discharged or one or both of the enduring guardians has been guilty of such neglect or misconduct or of such default as, in the opinion of the Tribunal, renders the person unfit to continue as an enduring guardian.[34]
[33] Section 110J, GA Act.
[34] Section 110(1)(b) and s 110(1)(b)(ii), GA Act.
The enduring guardians propose they continue in their roles and this is supported by the Public Advocate.
There are a number of allegations of neglect or misconduct made by the applicants regarding the conduct of the enduring guardians outlined in their submissions referred to earlier.
In response, D denies that AR is not consulted or involved in decisionmaking about his care. D says that there was a meeting at the rehabilitation hospital prior to his discharge in which AR was involved in discussions about potential nursing homes. D reports that AR had said he preferred not to be accommodated where his late wife had been placed because of the memories of her, so that an alternate nursing home was chosen.[35]
[35] ts 50, 18 August 2021.
D says the applicants were not invited to the meeting but says he sent the applicants a copy of the My Aged Care Support Plan. He says he did not try to obtain their views at the time as he believed he knew their position based on the history with their mother. This is supported in the recent submissions of the applicants when the issue of their late mother's nursing home placement was addressed.
The enduring guardians say that they would prefer AR to live in his own home but that the risk to his health and safety is too great and that he requires 24 hour nursing home care. They say M and P's efforts to encourage AR in the belief that he can go home only serves to distress and agitate him as there is no real prospect of AR being able to do so.
It is noted that AR entered the nursing home only after suffering strokes. The My Aged Care Support Plan identifies the support reported to be given by DM to AR when he was living at his home prior to this.
The decision made by the enduring guardians for nursing home placement of AR while understood to be against his strongly expressed wishes, is I accept, consistent with the advice given to them by the health professionals when AR was in hospital and in the recommendation given in the support plan that he requires 24 hour care. The enduring guardians have assessed for the reasons outlined above that the level of 24 hour care required can only be provided to AR in a nursing home.
I consider that the enduring guardians have not neglected or failed to recognise AR's wishes as alleged by the applicants. I accept that the enduring guardians recognise AR's wishes but they have not been able to follow them in respect of a return to his home because they have substituted their judgment for his in what they assess to be his best interests.
This is not to minimise the distress caused to AR of the decision that he remain in residential care.
It is difficult too for family members at times to accept the deterioration in the health and functioning of a parent and acknowledge the need for nursing care. This is especially so if they have not had the day-to-day involvement in the care of the parent. M lives in Victoria and according to D has not had direct personal contact with his father since their mother's funeral. If this is the case, it would be especially difficult for him to appreciate AR's current level of functioning. An example of this is that M contends AR is meticulous about his personal presentation but the Clinical Nurse Manager who does have direct contact with AR reports in the Primary Care Guide dated 23 July 2021 that AR 'is unable to care for self. Lacks insight into basic daily activities such as good hygiene'.
In the final hearing the Facility Manager described the difficulty AR experiences with his indwelling catheter because he does not understand what it is for. She said:
[H]e often - he will cut it in half, he pulls it out with the balloon intact and he undoes the bottom release all the time and resulting in him getting wet, slips, being a risk of fall because he will slip in the urine.[36]
[36] ts 4, 25 August 2021.
It is common for people coming before the Tribunal to disagree about the timing of entry of a parent into residential aged care. However, the allegations made by the applicants and the language used by them in their submissions alleging 'neglect', 'intentional harm', 'malice' and 'vindictiveness' by the enduring guardians reflects the level of the conflict but does not, in my view acknowledge the individual care needs of AR or the advice that the enduring guardians say they have relied on in the decision they have made that AR needs and should remain in residential care.
The assertion by the applicants in their recent written submission that diverting AR from this topic would be patronising and cruel does reinforce the gulf between the understanding of the applicants and that of the enduring guardians of AR's current needs.
Having regard to the extensive submissions of the applicants, in my view their understanding of AR's medical conditions and physical health is not consistent with the medical reports nor with the reports by the nursing home staff of AR's day-to-day functioning. The applicants do not appear to acknowledge or fully appreciate the potential implications of AR's cognitive impairment on his functioning and the impact of his poor memory on the reliability of AR's accounts.
The evidence of the geriatrician is that AR is impaired in his ability to retain and process information and lacks insight into his care needs. This assessment is consistent with all other professional and lay opinion given other than the applicants' own. However, the applicants say they rely on AR's assessments of his needs and his account of the conduct of the enduring guardians without seeking or accepting collateral information from other sources such as the guardians themselves or perhaps the nursing home staff.
Some of the information they say they rely on to support AR's reported distrust or sense of betrayal by the enduring guardians, such as the belief that a deposit has been paid to the nursing home from his funds, is not accurate based on the evidence of D which I accept and the nursing home fee statements provided.
It is not clear whether the applicants now accept that their assertions about this matter were inaccurate as they do not refer to it in their later submissions.
A further example is that the applicants say that AR reports the introduction of a walker was imposed on him by the enduring guardians without any explanation and given by the applicants as an example of the lack of consultation with AR by the enduring guardians.
There are references in the professional reports including the My Aged Care Assessment (which D says was sent to the applicants and which P acknowledges he has seen)[37] about AR being a falls risk. AR is said to have attended the meeting at the hospital when his care needs were discussed. Since then AR is reported to suffered falls requiring medical attention including attendance at hospital and the geriatrician refers to concern about AR's lack of insight into the need for a gait aid.
[37] ts 23, 18 August 2021.
P says he does not recall AR's mobility problems or need for the walker being raised with him when he met with the Facility Manager and the registered nurse as recorded in the contemporaneous nursing notes.
Having regard to all the material before me I do not accept that the walker was imposed on AR without discussion with him and it is more likely than not that he simply does not remember previous discussions about it.
The applicants also appear to dismiss the seriousness and significant difficulty in managing the care of AR's catheter and continence issues and are critical of the language used by D in addressing these issues.
The allegation that AR is 'objectified' by the enduring guardians is rejected. D referred in the hearing to ongoing management and review of AR's indwelling catheter because of its impact on AR's comfort and his levels of distress. I did not detect any lack of personal attention to or understanding of the personal welfare or the dignity of AR in the evidence given or the submissions made by him.
In their written submissions the applicants say AR questions the number and types of medication he is being given. It is understood these medications are prescribed and as noted have been reviewed by the doctors directly involved in AR's care. The cardiologist refers to some medication being able to be discontinued after a period following AR's stroke.
Although AR did not attend the cardiologist review, I find that there has been no neglect of AR's health care by the enduring guardians. The material before me demonstrates that AR's medication regime to manage his cardiac conditions has been reviewed by the cardiologist and the management of the indwelling catheter is under review by the urologist.
D reports there has been a recent review of AR's care needs and health by his general practitioner involving AR, the guardians and members of staff at the nursing home. The Facility Manager said that this review was part of the normal processes in the nursing home[38] and not in response to the concerns raised by the applicants as contended by them.[39] The Facility Manager says that AR is involved in clinical decisions but he forgets.[40]
[38] ts 18, 25 August 2021.
[39] ts 18, 25 August 2021.
[40] ts 15, 25 August 2021.
P's daughter and AR's granddaughter who is a nurse, visited AR and raised concerns with the enduring guardians about his podiatry needs and skin integrity and the tight Velcro wrapping on his leg to secure the catheter. The applicants say these concerns were dismissed by D. D denies this and says he confirmed with the nursing home that a visit from a podiatrist was planned for AR the following week.
The Facility Manager in her evidence referred to the difficulties with management of AR's indwelling catheter and the impact that this has on the skin integrity of AR's feet. She says that Velcro wrapping is checked hourly and that AR at times tightens it himself.[41] The Care Plan refers to podiatry and to massage and care of AR's skin.
[41] ts 14, 25 August 2021.
Deficiencies in the level of care provided to some aged care residents in some residential aged care facilities have been well documented and family members are right to be concerned and to want to monitor the level of care provided.
While the primary carers of AR are the nursing home staff, there is an obligation on the enduring guardians to monitor and ensure AR's health and safety are maintained by those engaged in his care and that the care is appropriate and least restrictive possible.
The nursing notes refer to advocacy by DM about AR's preferences for personal and continence care by male staff. The primary carer guide refers to daily visits to AR by DM and weekly visits by D.
I am satisfied that enduring guardians visit and maintain communication with AR and with the nursing home staff. The evidence of AR's visits to his own home by D and by the Facility Manager supports that AR's access to the community is facilitated by the guardians.
The Public Advocate sought the views of the Facility Manager who supports the commitment of the enduring guardians to AR's welfare.
The Facility Manager gave direct evidence in the final hearing of AR's significant care needs. I do not accept the assertion of the applicants that the staff of the nursing home are 'complicit in the false accusations and in allowing vindictive behaviour by the [guardians]'.[42]
[42] Applicants' submissions.
I am not satisfied that there has been any neglect of AR by the enduring guardians as alleged.
Restriction on contact
There is an obligation on the enduring guardians to maintain the supportive relationships of AR.[43]
[43] Section 51(2)(g), GA Act.
Although at times in the past, relationships have been strained between AR and his sons M and P as referred to in M's letter, I accept that both M and P have relationships with their father and they wish to maintain those relationships. AR has the right to contact with all his children.
At the request of the applicants a telephone suited to AR's needs[44] was installed in AR's room by the enduring guardians but was later removed following what was said to be a reported 'escalation' in AR's behaviour following contact with M and P.[45]
[44] Enduring guardians' submission.
[45] ts 12 and 13, 25 August 2021.
Restrictions have now been placed on M and P's contact with AR by the enduring guardians through removal of the telephone from his room, and limitation to and supervision of their telephone access to AR. A service provider has been engaged by the guardians to provide that supervision, paid from AR's estate. This is a significant restriction as both M and P say that AR benefits from contact with them and is isolated in the nursing home.
The enduring guardians argue that this restriction on AR's access to his sons was necessary because M and P have, through their communications with AR, undermined his trust and confidence in them as attorneys and guardians and that this further distresses him.
The enduring guardians say that following contact with M and P that there has also been an escalation of AR's agitated and resistive behaviours in the nursing home which impacts on the ability of the staff to provide care for him. They say that this behaviour settled after the telephone was removed from AR's room.[46]
[46] Enduring guardians' submission.
I accept the contention of D that despite their denials, that the applicants have more likely than not communicated their criticisms of the enduring guardians to AR prior to contact being supervised.
The Public Advocate refers to the Facility Manager reporting AR becoming distressed and confused after contact with M and P and noncompliant with medication. She confirmed this in the hearing.[47] The applicants deny this is the case and say that AR is distressed because he is in a nursing home against his wishes and those wishes have been ignored by the enduring guardians.
[47] ts 12 and 13, 25 August 2021.
The Facility Manager was questioned about this in the final hearing:
…
MEMBER: And what do you mean 'escalate'?
FACILITY MANAGER: He refuses his medications, he doesn't want his walker, he wants to go home and makes negative comments about all of the family, to be honest.
MEMBER: Okay. All right. Since the restriction - I mean, it's a fairly severe restriction, isn't it, to limit to telephone calls; is that your experience, that that's a pretty restrictive approach to contact.
FACILITY MANAGER In all honesty, in [AR's] interest, even with the restricted phone calls and visits, he's very distressed post phone calls and the visits because he associates it in a negative way. He associates it with wanting to go home and living on his own.
MEMBER: Well a lot of people in aged care don't want to be there, isn't that the case?
FACILITY MANAGER: Yes. Yes.
MEMBER: And so how - I mean, people are often distressed when they're in aged care.
FACILITY MANAGER: In between, [AR] joins in with everything, he's very happy, he's very go-lucky, he enjoys a beer every now and then, he goes out, he visits his house and he's reassured that it's in the same state. I can only tell you what he's like as a nurse and a manager[.]
The report from the service provider engaged to supervise contact indicates that some supervised contact between the applicants and AR has occurred and has been positive for AR.
The supervisor of contact reports that M and P attempt to divert AR from topics they have been told to avoid by advising AR they were not allowed to discuss these matters because a professional was present.[48]
[48] Service provider report.
The lack of acceptance by the applicants of the enduring guardians' decision about residential care for AR which they refer to as an error of judgment and their stated unwillingness in their most recent written submission to divert AR from discussion of this means that this issue will likely remain a source of conflict between the applicants and the enduring guardians.
The Public Advocate described the supervised contact arranged as the enduring guardians taking proactive steps to mitigate AR's distress and confusion.
In respect of the restrictions on the contact it must be said that this decision is within the authority of the enduring guardians. As previously noted, the EPG is in effect as AR lacks capacity to make reasonable judgments about his person. The EPG itself is an unrestricted authority. Pursuant to s 110G(1) of the GA Act, the enduring guardians have the same functions as plenary guardians appointed by the Tribunal.
According to s 45(1) of the GA Act plenary guardians have all of the functions in respect of the represented person that are, under the Family Court Act1997 (WA) vested in a person who has parenting orders made by the Court as if the represented person were a child lacking mature understanding.[49]
[49] Section 45(1), GA Act.
Such authority is clearly not in line with contemporary understanding of supported decision-making adopted as a principle in the Convention on the Rights of Persons with Disabilities[50] but that is the existing law in Western Australia.
[50] Article 12(3), Convention on the Rights of Persons with Disabilities.
However, although not expressed in the terms of supported decisionmaking, s 51 of the GA Act requires that a guardian act according to the guardian's opinion of the best interests of the represented person as far as possible taking account of that person's wishes, in consultation with the represented person, to encourage the represented person to live in the general community to participate as much as possible in the life of the community, and to maintain the supportive relationships of that person.[51]
[51] Sections 51(2)(b), s 51(2)(c), s 51(2)(e) and s 51(2)(g), GA Act.
The obligation on the guardians under the GA Act is to make the best interests decisions for AR which are the least restrictive of his rights while consistent with his proper protection. This is often a difficult balancing act between protection and autonomy[52] and given the overlapping and sometimes competing obligations set out in s 51 of the GA Act.
[52] See discussion in SM [2015] WASAT 132.
The obligation to act in the best interests of the appointer of an EPG apply to enduring guardians as they do to guardians appointed by the Tribunal by operation of s 110H of the GA Act.
As the enduring guardians arranged the telephone to be provided in AR's room at the applicants' request, I do not consider that there was any attempt by them to restrict access to the applicants initially. I accept that this only occurred after what they assessed as an increase in AR's agitation and distress as evidenced by his telephone calls and AR's reported behaviour at the nursing home.
Although a significant restriction on AR, I am satisfied that the enduring guardians have instigated the restrictions on AR's contact with M and P in an exercise of their judgment of the best interests of AR and not simply because they are in conflict with the applicants. I accept too there has been an effort by them through the supervised contact arrangement to maintain the supportive relationships of AR with the applicants.
Although D says he updates the applicants by email about AR's health, there appears to be little other effective communication and no trust between the enduring guardians and the applicants.
The existence of conflict between AR's children itself does not mean that I should go behind the arrangement which he put in place when he was competent to appoint enduring guardians for his future decisionmaking and which according to the professional reports and following investigation by the Public Advocate is said to be meeting the needs of AR.
The applicants propose the Public Advocate be appointed to independently assess AR's nursing home placement. To make this order I would need to be satisfied that this was a need of AR. I am not satisfied that this is the case. In any event, it is likely that the Public Advocate, if appointed as guardian, would rely on the professional advice regarding the level and location of care as the enduring guardians have done.
I accept the submission of the Public Advocate that the operation of the EPG by the enduring guardians is an appropriate safeguard for AR.
I do not accept the proposition advanced by the applicants that the appointment of the Public Advocate and the Public Trustee would enable AR to participate more in decision-making.
The demands on the Public Advocate and the Public Trustee, where they each act as guardian or administrator of last resort for thousands of represented persons, means that in all likelihood that direct contact with AR would be minimal and certainly much less than the contact he has with the existing guardians (and attorneys). There would be no possibility for example that AR would be taken to his bank by the Public Trustee's trust manager or visited weekly much less daily by a delegated guardian of the Public Advocate.
The transparency that the applicants seek in relation to financial matters would also not be provided, at least to them, because of the confidentiality obligations on the Public Trustee.
The proposed appointments would give the applicants reassurance about independence in decision-making which they assert is needed due to their lack of trust in the enduring guardians. However, I do not consider that this is a current need of AR. The orders proposed are not consistent with the requirement to make the least restrictive orders possible for him, nor are they consistent with his previous wishes as can be ascertained from his execution of the EPA and EPG.
Having regard to all the material before me and in all the circumstances of AR I am not satisfied that there has been any neglect, misconduct, or default on the part of the enduring guardians. I am satisfied that they have acted according to their opinions of AR's best interests and in line with the professional advice they have received of his assessed needs.
As such, while I accept that the applicants as sons of AR who are in regular contact with him, and express concern for his welfare, have a proper interest in bringing the application for intervention in the EPG, I find there is no basis for intervention in the EPG as proposed by them.
As I find that the EPG it is operating to meet the current assessed needs of AR, is an expression of his wishes as gathered from his previous actions and is a less restrictive alternative to the making of a guardianship order for AR, I find that there is no need for a guardian to be appointed for him.
For these reasons I dismiss all the applications.
Orders
GAA 2281/2021
The Tribunal orders:
On the application made by P and M on 3 June 2021 pursuant to s 110N of the Guardianship and Administration Act 1990 (WA) in relation to the enduring power of guardianship made by AR on 1 March 2020, the Tribunal orders:
1.The application is dismissed.
GAA 2537/2021
The Tribunal orders:
On the application made by P and M on 3 June 2021 pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) for the appointment of a guardian and an administrator of the estate of AR, the Tribunal orders:
1.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
11 OCTOBER 2021
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