AW and GL and MM
[2014] WASAT 156
•21 NOVEMBER 2014
AW & GL and MM [2014] WASAT 156
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 156 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1254/2014 | 5 AUGUST AND 9 SEPTEMBER 2014 | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) MR J MANSVELD (SENIOR MEMBER) DR H HANKEY (SENIOR SESSIONAL MEMBER) | 21/11/14 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Orders made appointing the Public Advocate as limited guardian and the Public Trustee as plenary administrator for the represented person | ||
| B | |||
| PDF Version |
| Parties: | AW & GL MM |
Catchwords: | Guardianship and administration Review by Full Tribunal Decision of a single Member Guardianship and administration orders Represented person a person for whom guardianship and administration orders can be made Need for guardianship and administration orders Who should be appointed When should orders be reviewed |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(3), s 4(4), s 17A, s 44(1), s 44(2), s 44(5), s 68(1), s 68(3), s 68(3)(a), s 84, Div 2 Pt 9C, Div 3 Pt 5 State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2) |
Case References: | Nil |
Summary | The applicants, who are close and longstanding friends of the represented person, sought review by a Full Tribunal of guardianship and administration orders made by a single Member. In those orders, the single Member appointed the Public Advocate as limited guardian for the represented person and appointed the Public Trustee as plenary administrator of the represented person's estate, both for a period of five years.,The applicants put themselves forward for appointment as guardians and administrators for the represented person.,The represented person is an older man with vascular dementia, ischaemic heart disease and asthma. Until the appointment by the single Member of a guardian and an administrator, one of the applicants had been caring for the represented person, with some support from the other applicant. In 2013, the represented person moved into an aged care facility, where he has lived since. The applicants continue to maintain close contact with him.,The Full Tribunal determined that the applicants should not be appointed as guardians and administrators for the represented person. The Full Tribunal considered that the applicants had already determined that the represented person would be moved from his current care facility due to previous disagreements which had arisen. The Full Tribunal did not consider that this would necessarily be in the best interests of the represented person.,The Full Tribunal also determined that the applicants should not be appointed plenary administrators of the represented person's estate. The Full Tribunal considered that this appointment would not be compatible with the appointment of the Public Advocate as guardian and were concerned that, if appointed as administrators, the applicants would exert undue control over the activities of the guardian.,Accordingly, the Full Tribunal determined that the Public Advocate should continue to be the limited guardian of the represented person and that the Public Trustee should continue to be the plenary administrator of the represented person's estate.,The guardianship and administration orders were both made reviewable within two years. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : AW & GL and MM [2014] WASAT 156 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT)
- MR J MANSVELD (SENIOR MEMBER)
DR H HANKEY (SENIOR SESSIONAL MEMBER)
- GAA 1255 of 2014
- Applicants
AND
MM
Represented Person
Catchwords:
Guardianship and administration Review by Full Tribunal Decision of a single Member Guardianship and administration orders Represented person a person for whom guardianship and administration orders can be made Need for guardianship and administration orders Who should be appointed When should orders be reviewed
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(3), s 4(4), s 17A, s 44(1), s 44(2), s 44(5), s 68(1), s 68(3), s 68(3)(a), s 84, Div 2 Pt 9C, Div 3 Pt 5
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)
Result:
Orders made appointing the Public Advocate as limited guardian and the Public Trustee as plenary administrator for the represented person
Summary of Tribunal's decision:
The applicants, who are close and longstanding friends of the represented person, sought review by a Full Tribunal of guardianship and administration orders made by a single Member. In those orders, the single Member appointed the Public Advocate as limited guardian for the represented person and appointed the Public Trustee as plenary administrator of the represented person's estate, both for a period of five years.
The applicants put themselves forward for appointment as guardians and administrators for the represented person.
The represented person is an older man with vascular dementia, ischaemic heart disease and asthma. Until the appointment by the single Member of a guardian and an administrator, one of the applicants had been caring for the represented person, with some support from the other applicant. In 2013, the represented person moved into an aged care facility, where he has lived since. The applicants continue to maintain close contact with him.
The Full Tribunal determined that the applicants should not be appointed as guardians and administrators for the represented person. The Full Tribunal considered that the applicants had already determined that the represented person would be moved from his current care facility due to previous disagreements which had arisen. The Full Tribunal did not consider that this would necessarily be in the best interests of the represented person.
The Full Tribunal also determined that the applicants should not be appointed plenary administrators of the represented person's estate. The Full Tribunal considered that this appointment would not be compatible with the appointment of the Public Advocate as guardian and were concerned that, if appointed as administrators, the applicants would exert undue control over the activities of the guardian.
Accordingly, the Full Tribunal determined that the Public Advocate should continue to be the limited guardian of the represented person and that the Public Trustee should continue to be the plenary administrator of the represented person's estate.
The guardianship and administration orders were both made reviewable within two years.
Category: B
Representation:
Counsel:
Applicants : Mr AU Elliot
Represented Person : N/A
Solicitors:
Applicants : N/A
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Introduction
1 This matter comes before the Tribunal by way of an application dated 24 March 2014 under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act). The application is made by AW and GL who seek a review of the decision made by a single Member of the Tribunal which was delivered on 17 March 2014. Details of that decision and the orders made by the single Member are set out later in these reasons. In essence, however, the matter under review is the Tribunal's appointment of the Public Advocate as the limited guardian of MM (represented person) and of the Public Trustee as the plenary administrator of the represented person's estate.
The represented person
2 The represented person was 84 years old at the time of the review hearing. The Tribunal is informed by the applicants that the represented person was, prior to his retirement, a high ranking officer of the British Diplomatic Service.
3 The represented person currently resides in an aged care facility located to the east of Perth where he has lived since 2013. Medical reports filed with the Tribunal indicate that the represented person suffers from, amongst other things, vascular dementia, ischaemic heart disease and asthma.
The applicants
4 The first applicant, AW, describes herself as a very close and longstanding friend of the represented person. She says that she and he were to be married 'until misfortunes happened'.
5 The second applicant, GL, also describes himself as a long-term friend of the represented person and also of AW.
The original application to the Tribunal
6 On 18 November 2013 a Senior Social Worker with Swan Hospital made an application to the Tribunal for the appointment of a guardian of the represented person and an administrator of his estate. The application contained a statement that the represented person had been 'brought into Swan Hospital Emergency department on 31/10/2013 due to carer stress'.
7 The matter was set down for a hearing on 3 January 2014.
The hearing of that application
8 That hearing eventually took place on 8 January 2014 before a single Member of the Tribunal. Neither the represented person nor either of AW or GL was in attendance at that hearing. At the conclusion of that hearing, the Tribunal appointed the Public Advocate as the limited guardian of the represented person and the Public Trustee as the plenary administrator of his estate. An existing enduring power of attorney was revoked.
9 The Tribunal specified in its orders that these appointments were to be reviewed within a relatively short space of time, on 25 February 2014.
The first review hearing
10 The hearing in respect of that review was listed to take place on 25 February 2014, but was subsequently heard on 13 March 2014, before the same single Member. Both applicants were among the people in attendance at that hearing and the applicants and other interested parties were all given an opportunity to make submissions. The Member then adjourned the hearing to consider his decision.
11 The decision and the Tribunal's reasons were delivered orally on 17 March 2014. It is that decision which is the subject of this review proceeding.
The decision under review
12 In the decision under review, the Tribunal addressed the following issues:
a) Does the represented person have the capacity to make reasonable decisions about his person and about his estate?
b) If not, is there a need for the appointment of a guardian and an administrator?
c) If so, who should be appointed as guardian and administrator and what powers should be granted to those persons?
13 In regard to the first issue, that of capacity, the Tribunal concluded that the represented person was incapable of making reasonable judgements about his person or his estate. The Tribunal found that the overwhelming evidence was that the presumption of capacity under the GA Act had been displaced.
14 In regard to whether there is a need for the appointment of a guardian or of an administrator, or whether informal arrangements could be used to assist the represented person, the Tribunal found that there was such a need. The Tribunal considered that the existing informal arrangements were ineffective and were not working in the best interests of the represented person.
15 The Tribunal then went on to consider who should be appointed as the guardian and as the administrator. The Tribunal noted that AW was available to be appointed as guardian and as administrator. However, the Tribunal considered that she was unsuitable for those roles. The Tribunal found that she had shown a lack of insight into the medical condition of the represented person and a lack of insight into his needs. The Tribunal noted in particular that she had previously taken steps that may have put the represented person at risk by removing him from home care services, by discontinuing services and not making arrangements for transitional care and by threatening to remove him from his current care.
16 The Tribunal also noted that GL could be available to act as administrator but did not consider him to be suitable to discharge the administrator's functions. The Tribunal considered that GL's denial of and lack of insight into the represented person's mental disability rendered him unsuitable for appointment. The Tribunal also observed that GL had assisted the represented person to execute an enduring power of attorney in favour of GL on the same day as a medical practitioner had assessed that the represented person was not capable to execute an enduring power of attorney.
17 The Tribunal concluded that the Public Advocate should be appointed as limited guardian of the represented person and the Public Trustee as plenary administrator of his estate.
18 The Tribunal's orders were made on 17 March 2014 and are essentially as follows:
The limited guardianship order
The Tribunal declares that [the represented person];
(a) is incapable of looking after his own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to his person;
(c) is in need of oversight, care or control in the interests of his own health and safety; and
(d) is in need of a guardian
and the Tribunal orders that:
1. The Public Advocate of Level 2, International House, 26 St Georges Terrace, 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 what contact, if any, the represented person should have with others and the extent of that contact.
2. This order is to be reviewed by 12 March 2019.
The administration order:
The Tribunal declares that [the represented person];
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b) is in need of an administrator of his estate,
and the Tribunal orders that:
1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the [GA Act].
2. The enduring power of attorney dated 4 November 2013 by which [the represented person] appointed [AW] and [GL] to be his attorney, is revoked.
3. This order is to be reviewed by 12 March 2019.
The review hearing
19 The applicants both sought a review of those orders under s 17A of the GA Act. The review was part heard on 5 August 2014 before a Full Tribunal consisting of a Deputy President of the Tribunal and two other members, one of whom was Senior Member Ms Taylor. In attendance at the hearing were both applicants and representatives from the offices of the Public Advocate and the Public Trustee. Also in attendance was a person who identified herself by name and stated to the Tribunal that she was a legal practitioner and a longstanding acquaintance of the applicants and of the represented person (Ms H). Ms H said that she intended to give evidence at the review hearing (T:18; 05.08.14) and therefore could not represent the applicants or the represented person. She said that she appeared 'as a friend of the Court' (T:3; 05.08.14).
20 Dr Pieter Oosthuizen, the represented person's general practitioner, provided a written medical report to the Tribunal dated 10 June 2014. He attended the hearing by telephone and gave oral evidence.
21 The represented person was not in attendance.
22 The Tribunal heard from both applicants and also heard medical evidence from the represented person's current general practitioner. The applicants at that point in the proceeding sought an adjournment, on the basis that they had applied to Legal Aid WA for legal assistance but were still to be advised as to whether that application had been successful. After due consideration, that adjournment was granted. The hearing was finally completed on 9 September 2014. The Tribunal was reconstituted for the hearing on 9 September 2014 due to the unavailability of Senior Member Ms Taylor. She was replaced by another senior member of the Tribunal, Mr Mansveld.
23 The represented person again was not in attendance. The applicants once more attended in person, and were now represented by counsel.
24 Others attending included representatives from the Office of the Public Advocate and of the Office of the Public Trustee, some friends and supporters of the applicants (including Ms H), a representative from the nursing home where the represented person resides and a representative from RSL Welfare. The represented person's sons attended the hearing but did not participate.
25 The Tribunal heard further submissions from the two applicants. Further medical evidence was provided orally by Dr Wise, who has previously treated the represented person as his general practitioner. Dr Wise is also AW's general practitioner. Ms H gave evidence, as did the representative of the nursing home where the represented person resides. Also, the representative from RSL Welfare gave evidence.
26 A written report from the Public Advocate as to her activities under her appointment was provided and was supplemented orally by her representative.
Scope of the review
27 A review under s 17A of the GA Act involves a fresh consideration of the matters that were before the single member and of any new material whether or not it existed at the time of the original decision; s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'; s 27(2) of the SAT Act.
Issues for determination
28 The following issues arise for determination in this review:
1) Is the represented person a person for whom guardianship and administration orders can be made?
2) Is there a need for guardianship and administration orders?
3) Who should be appointed to those positions?
4) When should the orders be reviewed?
29 We address each of those issues in turn.
Is the represented person a person for whom guardianship and administration orders can be made?
30 Every person is presumed to be capable of making reasonable decisions about personal and financial matters unless the contrary is proved to the satisfaction of the Tribunal; s 4(3) of the GA Act.
31 In this case, we find that the presumption of capacity is displaced. The represented person's general practitioner informed the Tribunal that the represented person was diagnosed in 2009 by a geriatric specialist with early cognitive impairment. He says that the represented person's mental condition has deteriorated over the last five years.
32 This general practitioner reports episodes of delirium and says that the represented person has suffered recently from lower respiratory infections. He says that in his opinion the represented person is unable to make reasonable judgments in respect of his own health and wellbeing and considers that he will progressively require more nursing care.
33 On the basis of that evidence, the substance of which was not challenged by either applicant, we find that the represented person:
1) is incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person and is in need of oversight, care and control in the interests of his own health and safety and for the protection of others; and
2) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to his estate.
34 The applicants through counsel conceded that this issue is not in contention (T:40; 09.09.14).
35 We therefore consider that the represented person is a person for whom guardianship and administration orders can be made.
Is there a need for guardianship and administration orders?
36 It is clear that the represented person cannot make decisions as to where and with whom he is to live, with whom he has contact or treatment decisions. He is also unable to manage his income and pay his expenses. In terms of treatment decisions, although AW may be a person who can make those decisions for the represented person under Div 2 of Pt 9C of the GA Act, it would be unfortunate not to take this opportunity to make an express appointment for that purpose.
37 Under s 4(4) of the GA Act, a guardianship or administration order 'shall not be made if the needs of the [represented person] could, in the opinion of [the Tribunal], be met by other means less restrictive of the person's freedom of decision and action'.
38 The Tribunal has considered whether there are other means of meeting the represented person's needs and concludes that there is no less restrictive alternative in the circumstances of this case to the making of guardianship and administration orders. The report from the general practitioner indicates that the represented person is incapable of executing an enduring power of attorney or an enduring power of guardianship.
39 The Tribunal's decision is that the represented person needs a guardian and an administrator to make decisions for him in relation to those functions conferred by the orders in March 2014. AW positively concedes this point (T:5; 05.08.14).
Who should be appointed to those positions?
40 This is the principal concern of the applicants and what gives rise to the review application. The applicants contend that they should have been and should now be appointed jointly as guardians and administrators.
The relevant legislation
41 Sections 44(1) and 44(2) of the GA Act state as follows:
Who may be appointed guardian
(1) A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a) will act in the best interests of the person in respect of whom the application is made;
(b) is not in a position where his interests conflict or may conflict with the interests of that person; and
(c) is otherwise suitable to act as the guardian of that person.
(2) For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible
(a) the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b) the compatibility of the proposed appointee with that person and with the administrator (if any) of that person’s estate;
(c) the wishes of the person in respect of whom the application is made; and
(d) whether the proposed appointee will be able to perform the functions vested in him.
Who may be appointed administrator
(1) An administrator (including a joint administrator) shall be
(a) an individual of or over the age of 18 years; or
(b) a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal
(c) will act in the best interests of the person in respect of whom the application is made; and
(d) is otherwise suitable to act as the administrator of the estate of that person.
…
(3) For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible
(a) the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b) the wishes of that person; and
(c) whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
43 The Public Advocate recommends that her appointment as limited guardian should continue. She also supports the continuation of the appointment of the Public Trustee as plenary administrator of the estate of the represented person.
44 The Public Advocate reports that, following her appointment, she has decided that the represented person should remain in his current accommodation and that there should be for the time being no change in respect of where the represented person is to live. She confirms that AW has requested that she consider alternative care facilities for the represented person and that AW considers that the represented person should reside with her prior to any move to another facility.
45 She has met twice with the represented person since the date of the first review hearing on 13 March 2014. She reports that on the first occasion the represented person told her that he was happy at his current place of residence and enjoyed listening to music. He was unable to recall whether he had received visitors and, if so, who they were. On the second occasion, when AW was also present, he reported that he was unhappy there, although he did not elaborate on this.
46 The Public Advocate's view is that any decision to move the represented person to another facility will require careful consideration and planning, in particular with regard to his current health concerns and financial circumstances.
47 The Public Advocate also reports that she had no need to make any treatment or healthcare decisions other than to provide consent to an influenza vaccination.
48 With regard to deciding who has contact with the represented person, the Public Advocate has made the decision that the represented person should not have visitors prior to 9 am on each morning. She also consented to AW and GW accompanying the represented person on an outing in May 2014. In the longer term, the Public Advocate considers that a contact plan for the represented person needs to be developed to ensure that the represented person can receive visitors and telephone calls at an appropriate time and provide family members with the opportunity to visit him.
49 The Public Advocate concludes that she should continue to be the decisionmaker with regard to where the represented person is to live, treatment and healthcare and contact. The Public Advocate does not consider that the proposal from the applicants to move the represented person to another facility has been properly considered. In her view, the applicants have not taken into account the represented person's current health issues and financial circumstances. She said that she is not opposed to a move, but she needed to be assured that it would be 'medically in [the represented person's] best interests' (T:163; 09.09.14). She is aware, for example, of one of the alternative facilities being considered by AW, and her concern is whether that particular facility has the capacity to provide the high level of medical care that the represented person requires (T:164165; 09.09.14). There are also cost issues to be considered because of the required level of medical care (T:166; 09.09.14).
50 She advised that the represented person's children 'want to be part of that decision, and their views to me are that they feel that [the represented person's current place of residence] is a suitable facility currently' (T:164; 09.09.14).
51 She informed the Tribunal that she has already requested a medical assessment in preparation for the possibility of a move (T:164; 09.09.14).
52 The Public Advocate remains firmly of the view that it is necessary that an independent decision maker continues to be responsible for health and treatment decisions.
The Public Trustee's report
53 The Tribunal has been provided with and has considered a report from the Public Trustee with regard to the represented person's estate. The represented person's finances are relatively simple. He has a modest income and his outgoings are limited to accommodation and pharmaceutical expenses. He also has an outstanding accommodation account of approximately $2,000.
54 The RP's income comprises a Veteran's Affairs pension and a United Kingdom state pension. There is a possibility that the represented person is also entitled to a further United Kingdom pension through the British Veteran Services which was being paid into a UK bank. This is being investigated.
55 The Public Trustee considers that the represented person still requires an administrator but does not offer an opinion as to the appropriate appointment.
The applicants' position
56 AW presented the case for her and GL's joint appointment. She said that their appointment is 'essential for the correctiveness of our life of 24 [years of] inseparable friendship … family integration, mental stability … as his fiancée' (see the applicants' application dated 24 March 2014). She said in her application that she and the represented person had a longstanding agreement to take care of each other 'in every way until either's passing'.
57 AW expanded on this in oral submissions made to the Tribunal on 9 September 2014. She said that the represented person had looked after her during her own period of incapacity in or around 2001. She had been bedridden and he took care of her by providing meals and organising medical assistance. She said that during and around that time and following her recovery they saw each other every day (T:51; 09.09.14). They intended to marry, although that plan was apparently thwarted with the represented person suffered a heart attack (T:51; 09.09.14).
58 Turning to the present, she says that she has seen the represented person 'every day in the last seven months barring four or five days where it was not possible' (T:56; 09.09.14).
59 She had noted a deterioration in the represented person's both physical and mental condition from around 2006 (T:57 and 58; 09.09.14).
60 AW is aware that the represented person has siblings and children. When asked whether they ever visited the represented person, she said 'They were very casual, like English people are … [t]hey all lived their own life, but we would go up there … Christmas, birthdays and things like that' (T:62; 09.09.14).
61 She says that she has had experience in caring for other people, including her mother, her father, her sister and her former husband's grandfather (T:63; 09.09.14).
62 When asked whether the represented person knows the second applicant, GL, AW said yes. When asked if the represented person trusted GL, AW said that GL is someone whom the represented person trusts 'in many areas' (T:66; 09.09.14).
63 She says that she no longer needs to look after the represented person because most or all of his care needs are met by the staff at the facility where he resides. However, in the past, until that role 'was taken off me', she has washed and dressed him, changed his bedding, cooked and cleaned for him and decided what clothes he wore (T:67 and 68; 09.09.14).
64 She continues to press that she would like to be the represented person's guardian (T:68; 09.09.14). She says that she understands some of the responsibilities of a guardian and describes those responsibilities to include taking him out, taking him to his doctor regularly and having the 'speech therapist lady checked out to see whether she's doing the right thing, all that, the medical side of it' (T:69; 09.09.14). However, she says that she is unclear about the responsibilities of guardianship beyond that 'because they've all been taken off me for seven months and I'm confused about what has happened, because I took my responsibilities full on and I don't understand what has happened' (T:69; 09.09.14).
65 When asked about her future plans for the represented person if she 'became guardian … in charge wholly and solely', AW responded:
Medical and the right place for him to live.
(T:70; 09.09.14)
66 She says that the represented person has told her that he is 'not happy' with the appointment of the Public Advocate as his guardian (T:76; 09.09.14). She says that he has told her that he 'wants to be under my decision-making and caring' (T:77; 09.09.14).
67 AW informed the Tribunal that the represented person had made a will 'some years back' (T:77; 09.09.14). She said that she believed that under the terms of the will, GL was to be the represented person's executor.
68 At this point, counsel tendered a copy of a document purporting to be the represented person's will dated 16 January 2012, along with a copy of a letter from the person who prepared that document.
69 AW described an occurrence towards the end of 2013 at the facility where the represented person resides. She said that on a particular day she and GL were visiting the represented person and GL had brought with him a meal for himself. However, according to AW, because she had previously expressed dissatisfaction with the quality of the food being provided to the represented person, describing it as 'mush', she was accused of providing him with food. That same day, she says that another person had been 'causing a lot of noise all morning' and that it was 'made out that I caused that and they called the police in'. She said that she had done nothing wrong (T:82; 09.09.14). She said that the represented person found the whole incident very upsetting.
70 AW then spoke about her personal health situation and says that, while she has some issues, she does not consider them to be an impediment to her appointment as guardian (T:84; 09.09.14).
71 AW confirms that if appointed, she would not necessarily have any immediate intention to remove the represented person from where he currently resides although she continues to stress that she considers that he 'would be much better in a different, happier situation. The [current facility] is not a happy place for him' (T:97; 09.09.14).
72 When pressed, however, she was not prepared to discount the possibility that, if appointed as guardian, she would try to care for the represented person at her home (T:99-100; 09.09.14).
73 GL then made oral submissions to the Tribunal.
74 He describes himself as a close friend of the represented person and has known him since around 1994 (T:104; 09.09.14). He said that the represented person has entrusted him in the past with overseeing some of his financial affairs, including paying his bills (T:109; 09.09.14).
75 He is aware that the represented person had made the will referred to by AW but, in contrast to AW's understanding of the contents of that document, he knows that it was in fact AW who had been named as executor and that he would be executor only if AW failed to take up that appointment. He also confirms his understanding that AW was the sole beneficiary under the will, and failing her then one of the represented person's sons (T:111112; 09.09.14).
76 GL was questioned on how he proposes to reach decisions in the event that he and AW are appointed joint guardians and administrators. He said that in every case the issues would be dealt with by way of consensus but he was unclear as to whose view would prevail in the event that a mutually agreeable decision could not be reached (T:123124; 09.09.14). However, he did state that he would not defer to AW's decision that the represented person should live at home and that he believes that the represented person needs a nursing home environment (T:124; 09.09.14).
77 He was also questioned on his understanding of the difference between, on the one hand, acceding to the express wishes of the represented person and, on the other, making a decision which is in the best interest of the represented person. He said that he is aware that it is the appointed guardian or administrator who will ultimately make the relevant decision, taking into consideration any expressed or known views of the represented person (T:127; 09.09.14).
78 Finally, GL was asked about the observation made by the single Member, in his reasons for the decision under review, that GL had assisted the represented person to execute an enduring power of attorney in favour of GL on the same day that a medical practitioner had assessed that the represented person was not capable of executing an enduring power of attorney. GL informed the Tribunal that he was in fact unaware that the represented person lacked the capacity to sign the enduring power of attorney on the relevant date (T:131132; 09.09.14).
79 At this point, Mr Adamson, the representative of RSL Welfare, requested leave to address the Tribunal. No objection was raised and leave was given.
80 Mr Adamson said that on the day when the enduring power of attorney was executed by the represented person, he had told GL that the represented person 'has already been declared dementia' (T:139; 09.09.14).
81 GL's s response was that by the time he got that message, the enduring power of attorney had already been signed (T:143; 09.09.14).
Other evidence
82 Dr Melanie Wise gave oral evidence to the Tribunal. As mentioned earlier in these reasons, the represented person had been a patient of the medical centre from where Dr Wise practises since late 2011 or early 2012. AW was and continues to be a patient of the same medical centre.
83 Dr Wise testified that the represented person came to see her in October 2013. She said that he was as usual accompanied by AW on that visit. She diagnosed him as having viral gastroenteritis and then wrote to the local hospital concerning his proposed admission. When asked whether she had any concerns on that particular occasion about the represented person's mental capacity, she said that the represented person had at that stage already been assessed at Royal Perth Hospital as having cognitive decline associated with dementia (T:148; 09.09.14).
84 She also informed the Tribunal that on every occasion when the represented person attended at her practice he was accompanied by AW and she confirmed that in her view AW had what she described as an appropriate interest in the represented person's health. She said that AW 'had a pretty good capacity to know what [the represented person] needed' (T:149; 09.09.14).
85 Finally, Dr Wise opined to the Tribunal that the represented person had what she referred to as high level, 24 hour care needs (T:152; 09.09.14).
86 Ms H's evidence was merely that she had known the represented person for some time and had on a number of occasions seen him in the company of AW. She believed that they were happy together.
87 The representative from the nursing home where the represented person resides gave evidence and reminded the Tribunal that she was speaking on behalf of the nursing home. She reported that the represented person had settled in well after some initial difficulties over the first few weeks. She describes this 'settling in' period as normal. She said that his behavioural issues had completely stabilised (T:169; 09.09.14). She regards the represented person's medical condition as complex and expressed confidence that the nursing home had the necessary staff and facilities to deal with that.
88 She made the point that the needs and requirements of people in the represented person's situation are constantly changing and those things required constant monitoring. She mentioned, for example, the long conversations that the represented person and AW used to have when she visited him. She said that in her view the represented person now needed to sleep longer in the morning and that his visitors needed to accept and adapt to these changing needs (T:169; 09.09.14).
The applicants' final submissions
89 The applicants through counsel then made their final submissions to the Tribunal.
90 The applicants say that AW has been misrepresented to the Tribunal as being a person who has failed to take care of the represented person. On the contrary, the applicants say, AW's occasional behavioural abnormalities can be explained as being a reaction to 'what she saw as being the government coming in and taking away her man in circumstances which were not explained' (T:176; 09.09.14).
91 The applicants say that while they concede that there is some 'danger' that the applicants might put their own interests ahead of the interests of the represented person, they say that this is 'explicable on the basis of carer's guilt'. They assert that they have a strong appreciation of what would be required of them as guardians and administrators (T:178; 09.09.14).
92 The applicants accept that a joint appointment may have some difficulties but they consider this to be the preferable approach. They say that both AW and GL have the represented person's interests at heart and respect each other's judgment. They say that GL is 'perhaps more matter of fact and practical' and that he would 'be the check on [AW's] perhaps more devoted side. And on the other side of the coin her devotion will be the check on his practical' (T:179; 09.09.14).
93 The applicants remind the Tribunal of the importance of preserving an existing relationship, particularly between AW and the represented person.
94 The applicants then clarified their desired outcome of their application by saying that they were seeking the appointment jointly of AW and GL as guardians for the purpose only of deciding where the represented person is to reside and to make medical and other health decisions for him (T:180181; 09.09.14).
95 They also confirm that they are seeking the appointment of GL alone as plenary administrator (T:183; 09.09.14).
The Tribunal's decision guardian
96 The Tribunal considers that the represented person is still in need of a guardian, but only to the limited extent specified in the current order, namely to make decisions as to where and with whom the represented person should live, with whom he should have contact and, subject to Div 3 of Pt 5 of the GA Act, to make treatment decisions for him. With regard to treatment decisions, as previously observed, it may be that AW is the 'person responsible' for the represented person under Div 2 of Pt 9C of the GA Act. However, as we have mentioned earlier in these reasons, we consider that it is in the represented person's interests to ensure certainty if urgent treatment is required by making an express appointment.
97 The question is then whether the applicants should be appointed as joint guardians, or whether that appointment should be in favour of the Public Advocate.
98 Under s 44(5) of the GA Act, the Public Advocate can only be appointed as a guardian if there is no other person suitable and willing to act.
99 We have concerns about GL's suitability to act jointly with AW. His evidence indicates that he sees his role as joint guardian as being no more than a consultative one. As a friend of both AW and the represented person, we consider that GL can already provide that consultative role without the need for a formal appointment.
100 A more suitable appointment might be AW alone. However, we are concerned that AW's objectivity as a decisionmaker will be clouded by her undoubted love for and devotion to the represented person. Despite any advice which she may receive from GL on the subject, we are not assured that AW will not remove the represented person from his current place of residence and instead care for him at her home. AW gave evidence that she herself has not ruled out that possibility and the Public Advocate reports that AW has suggested that the represented person live with her while she looks for alternative nursing home care. Dr Wise gave evidence of the represented person's need for high level, round the clock care which in our view is at least unlikely to be fulfilled in a home environment. We note in this regard the observations of the single Member at the first review hearing on 17 March 2014 about AW's inclination to cancel services suddenly while the represented person was living with her and her 'interventions' when those services were being provided (T:6; 17.03.14).
101 We are not persuaded that GL will act to temper the wishes and aspirations of AW. This is because AW has been, since the onset of his illness and until the appointment of the Public Advocate, making decisions for the represented person. She clearly views this as her right and duty alone because she is, effectively, the represented person's partner.
102 We also have concerns that AW still does not fully appreciate the significant care required by, and the complex medical needs of, the represented person at the present time, as well as the inevitable ongoing deterioration of his health and mental capacity. By way of example, AW has expressed suspicions about the represented person's speech pathologist (T:69; 09.09.14) and the assessment that he has dysphagia and cannot eat solid food (T:100; 09.09.14).
103 Another issue of concern to us is the reported disturbances caused in the facility during some of the applicants' visits. As we have observed earlier, counsel for the applicants explains this in the context of, particularly, AW's emotional response to the represented person being confined to a nursing facility, but it is clear that AW is overwhelmed by the fact that the represented person needs that care.
104 On balance, we consider that it is likely that AW's appointment as guardian will place an unnecessary strain on her relationship with the represented person, which is unquestionably important to the wellbeing of the represented person. A more appropriate role for AW, and one which is in keeping with the Tribunal's preferred outcome of maintaining AW's relationship with the represented person, is as the represented person's friend and companion.
105 We conclude that there is no person whom we consider to be suitable to act as guardian and we will order that the Public Advocate remains as the represented person's guardian, limited to the extent specified in the current order. Although we have not heard any evidence from the represented person himself, we do not consider that this would be in any way contrary to his wishes. He would undoubtedly recognise the limited nature of the guardian's role and we are satisfied that his wishes are simply to maintain his contact with AW and GL. The applicants currently have unrestricted contact with the represented person within the confines of the proper rules of the facility where the represented person currently resides. It has not been suggested that the failure to appoint the applicants as guardians will result in any change to these arrangements.
The Tribunal's decision administrator
106 The Tribunal also considers that the represented person is in need of a plenary administrator.
107 While the applicants are able to manage the represented person's day to day affairs, GL's explanation about the circumstances of the execution of the power of attorney did not satisfy the concerns of the Tribunal.
108 Further, s 68(3)(a) of the GA Act requires the Tribunal to take into account the compatibility of a proposed administrator with a represented person's guardian. We remain unconvinced that GL as administrator could work effectively with the Public Advocate. Given AW's express dissatisfaction with the represented person's current accommodation, it would be undesirable if any decision of the guardians about accommodation could be influenced by the applicants or GL alone having control of the represented person's finances. On that basis we do not consider that an appointment of the applicants or either of them is compatible with the appointment of the Public Advocate as guardian.
109 There has been no-one else who is suitable and has consented to act as the represented person's administrator. Accordingly, the Tribunal considers that the Public Trustee should be appointed as plenary administrator of the represented person's estate and we will so order.
When should the orders be reviewed?
110 Section 84 of the GA Act provides that the Tribunal, when making a guardianship or administration order, must specify a period, not exceeding five years from the date of the order, within which the order or orders shall be reviewed.
111 In our view, it is in the best interests of the represented person that we minimise any further disruption in his life by specifying as long a period as possible before the orders are reviewed. However, having said that, our present concerns about appointing the applicants to the role of guardians and administrators revolve to a certain extent around AW's heightened emotional state about the represented person's need for a guardian and an administrator. A review period of something less than five years would be appropriate to allow time to conduct a further assessment to establish that AW has become more objective about the needs of the represented person.
112 On balance, we consider that our orders should be reviewed in two years from their date.
Declarations and orders
113 The orders made by the Tribunal on 17 March 2014 are affirmed, save to amend the review date. The orders now read:
114 In proceeding GAA 1254 of 2014 (relating to administration) we declare that the represented person:
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b) is in need of an administrator of his estate,
- and the Tribunal makes the following orders:
1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2. The administration order is to be reviewed by 21 November 2016.
3. The enduring power of attorney dated 4 November 2013 by which [the represented person] appointed [AW] and [GL] to be his attorney is revoked.
(a) is incapable of looking after his own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to his person;
(c) is in need of oversight, care and control in the interests of his own health and safety; and
(d) is in need of a guardian,
- and the Tribunal orders that:
1. The Public Advocate of Level 2, International House, 26 St Georges Terrace, 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 Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA) to make treatment decisions for the represented person; and
(d) to determine what contact, if any, the represented person should have with others and the extent of that contact.
I certify that this and the preceding [116] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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