As
[2009] WASAT 183
•22 SEPTEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: AS [2009] WASAT 183
MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MS F CHILD (MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)
HEARD: 8 APRIL 2009
DELIVERED : 22 SEPTEMBER 2009
FILE NO/S: GAA 2912 of 2008
GAA 2958 of 2008
BETWEEN: N
Applicant
AND
AS
Represented person
Catchwords:
Guardianship and administration Review pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) Represented person with diagnosis of vascular dementia Whether the represented person is a person for whom a guardian and administrator may be appointed Whether she is in need of a guardian and administrator - Friend denying the represented person incapable of making decisions Whether the appointment of the Public Advocate required in circumstances where there is a supportive family but continuing conflict between the family and friend of the represented person Continuing need for orders appointing independent guardian and administrator Orders confirmed
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43, s 64, Pt 5 Div 3
Result:
Orders confirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented person : Self-represented
Solicitors:
Applicant: Self-represented
Represented person : Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Background
Following an application by N, the brother of A, a woman who had been diagnosed with vascular dementia, the Tribunal constituted by a single member appointed the Public Advocate as A's guardian and the Public Trustee as the administrator of her estate.
FS, a friend of A's, sought review of those decisions as he considered that A was able to make decisions for herself and did not need a guardian or an administrator. Alternatively, FS argued that if a guardian was to be appointed it should be him. He gave evidence of his close friendship and daily contact with A.
Summary of Tribunal's decision
The Tribunal found that because of A's progressive dementia, she was unable to make decisions for herself about her person or about her estate. She was at risk because she had no insight into her insulindependent diabetes and the dangers to her health of noncompliance with medication and a diabetic diet. She did not understand the extent of her estate and needed someone to pay for her accommodation and her other needs.
The Tribunal found that FS was not suitable for appointment as the guardian as he did not accept A's diagnosis or that her capacity to make decisions was impaired. He did not acknowledge her consequent vulnerability. Because of this, the Tribunal concluded that there was a risk if FS were appointed guardian that he would make decisions for her which were not sufficiently protective of her health and welfare. Although A's family were protective and concerned for her welfare, because N disapproved of A's relationship with FS and had genuine concerns about the risks of that relationship for his sister, it was likely that unless an independent decisionmaker were appointed, there would be ongoing conflict about the contact arrangements. The Tribunal determined that independent decisionmakers were best placed to act on A's behalf.
Having considered all of the material before it including medical and other professional reports and submissions from FS and A's family and from the Public Advocate and Public Trustee, the Tribunal concluded that the orders should be confirmed.
Reasons of the Tribunal
These written reasons are provided in support of the Full Tribunal's decision following a review pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) from decisions of a single member of the Tribunal made in November 2008.
FS seeks review of the decisions of a single member of the Tribunal to appoint the Public Advocate the limited guardian and the Public Trustee the plenary administrator of A's estate.
FS says that A does not need a guardian or an administrator of her estate or, alternatively, that if she does need a guardian, he should be appointed in that role.
The application was heard on 8 April 2009 and further written submissions were invited from the parties to be submitted by 8 May 2009. The decision was then reserved.
Legislation
Section 17A of the GA Act provides that there is a right of review from a decision of a single member to a Full Tribunal. The Full Tribunal is constituted by three members and either the President or a Deputy President presides.
A review pursuant to s 17A is a hearing de novo whereby the Tribunal looks afresh at the circumstances of the person to whom the application relates and does not need to find fault with the original decision. The Tribunal must therefore determine whether the represented person is a person for whom a guardian and an administrator may be appointed. If they are, the Tribunal must then consider whether they need a guardian and an administrator of their estate or whether there are less restrictive means by which their needs can be met. Finally, if orders are required, the Tribunal must decide who should be appointed as guardian and administrator in their best interests.
To appoint a guardian, the Tribunal must find that a person is incapable of looking after their own health and safety, unable to make reasonable judgments in respect of matters relating to their person or is in need of oversight, care or control in the interests of their own health and safety or for the protection of others and that the person is in need of a guardian (s 43 of the GA Act).
Section 64 of the GA Act provides that an administrator may be appointed where a person is unable, by reason of mental disability, to make reasonable decisions about any or all of their estate and that person is in need of an administrator of their estate. These provisions are subject to principles set out in s 4 of the GA Act which the Tribunal is required to observe in all proceedings commenced under the GA Act.
The principles in s 4 provide that the primary concern of the Tribunal must be the best interests of the represented person. The principles also state that every person shall be presumed to be capable of looking after their own health and safety, of making reasonable judgments in respect of matters relating to their person, of managing their own affairs, and of making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the Tribunal. If the contrary is proved, any order made should be in terms that impose the least restrictions possible, in the circumstances, on the person's freedom of decision and action.
In considering any matter, the Tribunal is bound to attempt to ascertain the wishes of the represented person as expressed or if necessary, as gathered from the person's previous actions.
Evidence and material before the Tribunal
The Tribunal has before it medical and other professional reports which were before the member who first heard the original application made in October 2008, including a report dated 11 October 2008, from Dr T, a geriatric registrar from a tertiary hospital where A was admitted and treated in 2008. Dr T states that A has vascular dementia and scored 12/30 on a Mini Mental State Examination and 13/30 on the Rowland Universal Dementia Assessment Scale (a capacity assessment tool where English is the second language of the patient). Both scores indicate moderate dementia. Her condition is described as progressive. In the opinion of Dr T, A is incapable of making decisions about her personal health care, her living situation and her financial affairs and is incapable of validly giving an enduring power of attorney.
It is noted in Dr T's report that A 'specifically does not want her family to manage her financial affairs' and that she 'lacks insight into her dementia diagnosis.'
A report dated 14 October 2008 from KL, a social worker at the same hospital, states that A was admitted to hospital in September 2008 with increased confusion and incontinence, and during the admission the diagnosis of vascular dementia was made. The report notes that family members reported deterioration in A's condition over the three years prior to her admission to hospital. The report goes on to say that family meetings conducted at the hospital resulted in the decision being reached that A would enter permanent residential care and she was subsequently discharged to a care awaiting placement facility on 13 October 2008. KL's report notes that FS, who is described as A's partner and who is reported to have known A for five years, was not involved in the original meetings due to conflict with N and has since opposed A's move to the residential care facility (Facility). FS is described in KL's report as 'having reduced insight into [her] cognitive deficits and the impact this has on her ability to care for herself at home', her safety and her care needs and she is reported to have 'regularly refused medications and insulin' required for the management of her diabetes.
The Aged Care Assessment Team client record dated 1 October 2008 notes the need for surveillance of A while in hospital due to her being a 'falls risk' and her noncompliance with insulin for her diabetes. It notes that A either regularly or occasionally experiences short and long term memory problems, at risk behaviour, wandering, disturbed sleep, confusion and disorientation. The assessment is that A is eligible for low level dementiaspecific residential care.
A later report dated 12 November 2008 from Dr C, who attends A in the Facility, confirms A's diagnosis of dementia and her incapacity to make decisions about her person and her financial affairs. Dr C's report further notes that A is in a locked ward due to wandering.
Additionally, MF, a social worker at the Facility, notes in her report of 19 November 2008 that A has insulindependent diabetes and that she is unable to administer her own insulin or monitor her blood sugar levels (BSL). Education regarding diabetic diet requirements of both A and her 'boyfriend' is reported 'not to have been very successful'. The report notes that FS that:
… 'regularly brings her sugary drinks and foods that are not suitable for a diabetic diet. [FS] also has been taking her out on a regular basis while she has been at [the Facility]. When he brings her back, nurses have reported that [A] often has dangerously high blood sugar levels. Recently, they have been as high as 20' … 'Nursing and care staff have both made attempts to advise [FS] that these foods are not appropriate and detrimental to her health, but he continues to supply her with these foods. [FS] states that [A] likes these foods, but does not understand she lacks the capacity to make reasoned decisions about her needs'.
MF notes conflict between N and FS. The family are reported to be supportive of A and to have finally accepted the professional advice that her extensive care needs could not be managed at home. Her family visit her at the Facility and she is reported to be 'happy to see them' and 'usually became more settled' when they visited.
In a letter sent by fax to the Tribunal on 14 November 2008, MF advised that FS had removed A and her belongings from the Facility as he was believed to have become frustrated with waiting for the determination of the application which had been made to the Tribunal. FS was reported to have advised MF that A's belongings had been removed as she would not be residing in the Facility for much longer. MF states FS returned A to the Facility at 7.30 pm that evening despite requests from the Facility manager that he do so by 1 pm. FS denied an intention to remove A permanently from the Facility though this was reported to have not been believed by the staff who considered that his actions had been 'preplanned'. FS is noted as continuing to take A out daily and 'she always returns with dangerously high BSLs'.
MF supports the appointment of N who is described as a 'devoted brother who has his sister's best interests at heart' as the administrator of A's estate. Despite this, MF recommends that an independent guardian be appointed due to the conflict between the family and FS. MF expresses concern that the conflict might influence N's judgment when making decisions about contact between A and FS and this may cause further disharmony.
In addition to these reports, the Tribunal has considered the transcript of the original hearing on 20 November 2008 and oral and written submissions from FS, A's family, the Public Advocate and the Public Trustee. The Tribunal also heard from A.
Applicant's submissions
FS submits that he has been A's 'unofficial guardian' for seven years and has supported her to attend all appointments. He states he has visited everyday that she has been in hospital and at the Facility.
In his oral submissions before the Tribunal, FS agrees that he does not believe the represented person has difficulty making decisions despite the medical evidence, but he believes that if a guardian is appointed, it should be him. He states that if A cannot live at home alone, he will assist her. He asserts A's 'human rights have been taken away from her when we both requested that she be allowed to leave [the Facility] but [she] was prevented from leaving'. He notes that he has 'checked with the relevant authorities from the Commonwealth Government and they advise that she is free to leave at any time as [the Facility] is a private Facility'. In correspondence to the Tribunal, he takes issue with the medications A is being given, including Epilim, which is reportedly given for behaviour management. He states that this medication has caused the health problems which A has been experiencing and that it 'can pacify the brain'. FS no longer supports the appointment of an independent guardian as he did at the original hearing. His submission is that she either does not need a guardian or, in the alternative, he should be appointed in that role.
In respect of the administration of A's estate, FS asserts that either A had been stripped of her assets since the appointment of the Public Trustee as her administrator or that she had no control over her funds. In his written submission, he contends that no administrator should be appointed as he says that A is 'quite capable of looking after her own affairs'.
Family's submissions
In a written submission signed by five members of A's immediate family, it is said that they are greatly concerned about A's welfare. They say her dementia has worsened in the last 12 months but she does not understand this, and often forgets or refuses to take her medication. They acknowledge that she has spent a lot of time with FS in the last few years. They say that it appears to them that FS has no understanding of A's medical or mental condition and 'completely denies her dementia and the severity of her [diabetes]'. They say he often argues with nurses who look after A and that this shows that he does not understand her condition fully. They also express concern that as FS is a heavy smoker, A will be exposed to smoke while she is in his company and this is unhealthy for her as she suffers from a heart condition. The family further submit that while in FS's company, A does not maintain a diabetic diet and that when they have raised this with him he replies that she likes the foods and so they (he and A) will buy them. The family say that whilst in FS's care, A may at times be left alone and that she cannot be left alone since she needs assistance to walk and requires supervision for her medication.
The family say that FS and A can remain friends as long as there is some restriction or limitation on the duration of his visits or on outings so that there can be greater control of A's diet and medication.
The family propose N as A's guardian as they submit that she is close to him and has relied on him in the past. They assert that her money should be spent on her needs and that based on the available information, she requires secure residential care.
Public Advocate's submissions
The Public Advocate's delegated guardian (Guardian) notes that A has been assessed in January 2009 as requiring dementiaspecific low level residential care or a Community Aged Care Package. However, at the time of the review hearing, this assessment may require review due to A's reduced mobility and insulindependent diabetes. The Guardian reports that A's family support her need for residential care and A and N have viewed a possible permanent accommodation option since the appointment of the Guardian.
The Guardian reports that FS has consistently asserted that A has the capacity to make her own decisions, that she does not have dementia and that she has the physical capabilities to resume living independently in the community. FS is apparently willing to live with A and provide constant supervision with some medical support.
The Guardian notes that the treating team at the Facility reports that FS has taken A to see a general practitioner without reference to the Guardian (who has the authority to consent to medical treatment on behalf of A) or staff at the Facility. FS is also reported to have taken A to see another doctor for the purpose of obtaining a referral for psychiatric assessment, without the consent of the Guardian.
The Guardian submits that A needs a guardian as the decision about where she should live following her discharge from the Facility is not yet finalised and there is also a need for ongoing consent to medical treatment and healthcare on her behalf. The Guardian maintains that the need for a guardian is confirmed as FS has not supported the medical advice given by the team treating A, has continually questioned the medications prescribed for her and has sought alternative treatment options for her without consent.
Public Trustee's submissions
The Public Trustee reports that contact has been made by MF and family members about A's accommodation needs and that FS has been in regular contact regarding all aspects of A's affairs. The report notes that A has a pension income and funds in term deposits which, following adjustment by the trust manager, now provides an income stream for A so that her income is now in excess of her expenditure; prior to this, it had been in deficit. The Public Trustee raises concern about the continued payment of both A's accommodation fees at the Facility and the rental of her Department of Housing and Works property, albeit at a reduced rate.
Findings
Is A a person for whom a guardian and an administrator may be appointed?
A has a diagnosis of vascular dementia which is said to be progressive. The evidence of the health professionals and her family is that A is frequently noncompliant with the treatment for her diabetes. Her BSL is reported to be at times 'dangerously' high as a result. She wishes to return to her own home and does not recognise the need for additional support and assistance with monitoring her diabetes and the tasks of daily living. All this evidence rebuts the presumption of capacity of A in matters related to her person.
The Tribunal finds that A is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person and is in need of oversight and care in the interests of her own health and safety. A is therefore a person for whom a guardian may be appointed.
A's diagnosis of vascular dementia is a mental disability for the purposes of the GA Act. Medical reports refer to impairments in cognition and memory. Based on this evidence, the Tribunal finds that the represented person is unable to make reasonable judgments about her estate by reason of her mental disability. A is therefore a person for whom an administrator may be appointed.
Does A need a guardian and an administrator of her estate?
A is in need of a guardian to make personal decisions including the decisions about where she should live and the medical treatment to which she should have access. Related to where A should live are decisions about the services to which she should have access.
The professional evidence is that A has significant health problems and needs care and supervision, but that she has no insight into these needs.
There is conflict about where she should live as FS maintains that A can return to live in the community with support, while the health professionals and her family believe she requires residential care.
Because of the nature of her health problems, including insulindependent diabetes, there is a need for ongoing medical treatment. Since A is incapable of making these treatment decisions herself, there is a need for a substitute decisionmaker for health care.
There is also conflict about the nature and extent of the contact between FS and A; on the one hand, FS says that A should be free to leave the Facility at any time and on the other, her family says that visits should be limited because of what is said to be the impact on A's health and wellbeing. The family's view is supported by the staff at the Facility.
The Facility has a duty of care to A, but no legal authority to restrict the access of visitors or her movements if she left the Facility. Because A's capacity to deal with her personal matters is impaired and her decisions might place her at risk, there is a need for a guardian to deal with the contact that she has with others and the extent of that contact.
A has an estate to be managed including funds in term deposits, an income to be collected and liabilities to be paid including her accommodation charges. Once the decision is made that she remains in permanent care, her tenancy will need to be terminated so that she does not continue to pay unnecessarily for that accommodation. A is not able to do these things for herself. For this reason, she needs an administrator of her estate.
Wishes of the represented person
A has consistently expressed the wish to return to her own home rather than live in residential care. This view is supported by FS, but not by the health professionals or A's family as they consider she is not able to care for herself.
During the review hearing, the Tribunal understands A's expressed wish to be that a guardian not be appointed. Although the Tribunal is bound to ascertain her wishes, it is not bound to follow them if to do so would not be in her best interests. Since the Tribunal finds A in need of a guardian in the areas of decisionmaking outlined above, it cannot accede to her wish in this respect. In respect of the decision as to where A should live, it will be for the Guardian to determine this question taking into account the professional assessments of her care needs, her wishes and the overriding obligation to act in her best interests.
Dr T reported that A did not wish her family to be involved in the management of her financial affairs. As the Member said at the original hearing, it is not clear whether there is any real basis for this wish. Nonetheless, A has expressed this view and as it appears from the Public Trustee's report that the administration of A's estate by the Public Trustee is operating in her best interests, there is no reason to change this arrangement.
The Tribunal does not accept FS's view that A has been stripped of her assets, but it is true that her funds are now under the control of the Public Trustee. The Tribunal considers that this is appropriate and in A's best interests since it will provide for the proper management of her estate and protect her from any risk of financial exploitation.
Who should be appointed as guardian and administrator?
FS proposes himself as Guardian but the Tribunal does not find him suitable for appointment. His own evidence is that he does not accept that A suffers from vascular dementia which has impaired her capacity to look after her own health and safety, and to make reasonable judgments in respect of matters relating to her person or her estate. He asserts A is capable of managing her financial affairs in the face of clear medical and other evidence to the contrary.
The Tribunal accepts the submissions of the family and the Public Advocate and the evidence of MF that FS does not actively support the need to ensure that A maintains a diabetic diet and that her health is put at risk as a result. FS's insistence that A return home to live, albeit with his support, is contrary to the medical and other professional assessments of A's care needs and the risks to her if these needs are not met.
Since FS does not recognise A's incapacity to make decisions for herself, he fails to appreciate the need for decisions which, while being against her expressed wishes, provide for the proper protection of her health and welfare. Because FS does not recognise A's incapacity and her subsequent vulnerability both in respect of personal and financial matters, he is not suitable for appointment as guardian.
We accept KL's submission made at the original hearing that family members, in particular one brother and one sister, have been involved in planning for the care of A and have her best interests at heart. The family, in their submission, propose N be appointed as the Guardian.
The family acknowledges the length of time that A has had a relationship with FS and accepts that there will be contact between them in the future. We accept that there is a willingness on the part of the family to make decisions in the best interests of A, and to that end, they are willing to manage the contact arrangements. However, given the genuinely held concerns of N about contact between FS and A as expressed in the submission and the reported history of conflict, we consider that an independent guardian, at least in the short term, is required. This will go some way towards ensuring the relationship between FS and A is maintained through contact between them (within protective arrangements as determined by the Guardian). The background of conflict together with FS's apparent refusal to accept the authority of the Public Advocate's delegated Guardian since the order was made would make decisionmaking by family members difficult and might lead to an exacerbation of the existing conflict. Further conflict would not be in A's best interests.
Orders
The orders under review are confirmed as follows:
1.The Public Trustee of 565 Hay Street, Perth, Western Australia, be appointed plenary administrator of [A's] estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia, be appointed limited guardian of [A], with the following functions:
a)to decide where [A] is to live, whether permanently or temporarily;
b)to decide with whom [A] is to live;
c)subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of [A];
d)to determine what contact, if any, [A] should have with others and the extent of that contact; and
e)to determine the services [A] should access.
3.The Tribunal approves the delegation by the Public Advocate of her functions as [A's] guardian to an officer or employee in the Office of the Public Advocate.
4.These orders are to be reviewed by 20 November 2010.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT
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