BJ and DJ
[2006] WASAT 143
•1 JUNE 2006
BJ and DJ [2006] WASAT 143
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 143 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:983/2006 | 4 APRIL 2006 | |
| Coram: | MS D DEAN (MEMBER) | 1/06/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | The applicant was given leave to apply for review of the guardianship order. The guardianship order appointing the Public Advocate plenary guardian was confirmed and the application for administration was dismissed. | ||
| B | |||
| PDF Version |
| Parties: | BJ DJ |
Catchwords: | Guardianship and administration Application for review of a guardianship order Leave to apply to review granted Application for an administration order Least restrictive alternative |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 64(1), s 86, s 87, s 87(5)(a), s 87(5)(b), s 90 |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : BJ and DJ [2006] WASAT 143 MEMBER : MS D DEAN (MEMBER) HEARD : 4 APRIL 2006 DELIVERED : 1 JUNE 2006 FILE NO/S : GAA 983 of 2006 BETWEEN : BJ
- Applicant
AND
DJ
Represented Person
Catchwords:
Guardianship and administration Application for review of a guardianship order Leave to apply to review granted Application for an administration order Least restrictive alternative
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 64(1), s 86, s 87, s 87(5)(a), s 87(5)(b), s 90
(Page 2)
Result:
The applicant was given leave to apply for review of the guardianship order.
The guardianship order appointing the Public Advocate plenary guardian was confirmed and the application for administration was dismissed.
Category: B
Representation:
Counsel:
Applicant : N/A
Represented Person : N/A
Solicitors:
Applicant : N/A
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal’s decision
1 In this case, the applicant is a young woman with a profound intellectual disability and limited communication skills. She lives in a purposebuilt home in the community with 24hour care. Her parents are separated, and both have repartnered. Her father lives in a country town several hundred kilometres from the country town where she resides. Her mother is currently living outside Western Australia. The Public Advocate is the plenary guardian and her mother informally manages her estate.
2 The father made applications to the Tribunal for a review of the guardianship order and for the appointment of an administrator. He proposed himself as both guardian and administrator, based on his belief that the represented person should have a person who is interested in her welfare in these roles. He argued that the represented person should move to the country town where he resides to allow easy access to her extended family.
3 After hearing evidence from a variety of parties, including the parents, extended family, the carer co-ordinator and the Public Advocate, the Tribunal found that the informal financial management by the mother was working in the best interests of the represented person. The Tribunal dismissed the application for administration on the basis that the informal arrangement was a less restrictive alternative to the making of an administration order.
4 The Tribunal confirmed the order appointing the Public Advocate plenary guardian, based on the finding that decisions were being made in the best interests of the represented person.
Background
5 The represented person's parents are separated, and both have repartnered. The represented person lives in a country town several hundred kilometres south of Perth, her father lives in a country town several hundred kilometres north of Perth, and her mother is on an extended holiday outside Western Australia. The mother's usual place of residence is the country town where the represented person lives.
6 On 22 January 2004, an order was made appointing the Public Advocate plenary guardian of the represented person for a period of five years.
(Page 4)
7 On 18 January 2006, the father made applications to the Tribunal for a guardianship order and an administration order. As there was already a guardian, appointed at the hearing, the applicant withdrew the application for guardianship and made an application for review of the guardianship order. Under s 86 of the Guardianship and Administration Act 1990 (WA) (GA Act), the father is a person who requires leave to apply to review. Leave was granted at the hearing.
8 The represented person is a severely disabled young woman with a profound intellectual disability and limited communication skills. She requires 24hour care.
9 After the separation of her parents, the represented person lived with her mother while her brother and sister went to live with the father. More recently, the represented person moved into a purposebuilt home in the community with a funding package which allows her to have 24hour care.
Information before the Tribunal
Medical and other reports provided prior to the hearing
10 In addition to the written application, the following written material was received by the Tribunal prior to the hearing:
• A report from Gary Miller, the support coordinator of the Community Living Association, stating that the represented person has a diagnosis of cerebral palsy. She requires 24hour care, lives in her own home in the community and is "totally dependent on her carers for all her needs including communication". Mr Miller said that the represented person is wellknown in the community, and as a result, has a strong support network who understand and cater to her needs.
• A lengthy, detailed report from the delegated guardian from the Office of the Public Advocate. The guardian stated that after extensive investigation and consultation with others, the decision had been made that the represented person should continue to live in her present accommodation.
11 After a request by the father that the represented person move to the country town where he lives with his family, the guardian undertook
(Page 5)
- a review of the original accommodation decision, and again found that it was in the represented person's best interests to remain in her present accommodation.
12 Unfortunately, because of the represented person's complex medical needs, the general practitioner (GP) has advised that it is not possible for her to travel by plane or to undertake long car journeys. This means that contact with her father and family requires them to travel to her home town to visit her.
13 In her report, the guardian refers to the request made by the father, because of his concerns that she is not maintaining a suitable body weight, for a percutaneous endoscopic gastrostomy (PEG) feeding tube to be inserted to supplement the represented person's nutrition. The represented person's GP, who reviews her regularly, advised the guardian that although she has a low body mass, the represented person enjoys her food and eats well with the assistance of her carers.
14 The father had raised the following concerns with the guardian about the care of his daughter:
• lack of appropriate equipment in her home to meet her needs;
• lack of access to finances;
• inconsistency of care arrangements;
• lack of daily activities;
• lack of furniture;
• lack of clothes; and
• no access to therapy services.
15 These concerns were investigated by the guardian and found to provide no basis for concern.
16 In summary, the guardian referred to the fact that the represented person has no verbal communication and limited nonverbal communication, making it impossible to ascertain if she enjoys particular activities or misses people. Even when in pain, it is difficult for her to communicate to her carers what is wrong.
(Page 6)
Hearing
17 The hearing was attended by:
• the delegated guardian from the Office of the Public Advocate;
• PJ, brother of the represented person;
• HJ, sisterinlaw of the represented person;
• JA, mother of the represented person, attended by teleconference;
• Mr Miller and Kathy Hough from the Community Living Association, and the represented person attended by teleconference; and
• BJ, father, ED, stepmother, and AJ, sister of the represented person, attended by video conference.
Guardianship issues
Accommodation
18 The father made an application to the Tribunal to have the guardianship order reviewed because he disagrees with the decision of the guardian to support the represented person to continue to live in the country town where she currently resides.
19 The father said that because his daughter has been deemed unable to travel the distance between her home town and where he lives with her sister, stepmother and stepsiblings, there is little contact between them. He argues that, because her mother is away indefinitely, the represented person is isolated from all members of her family and would be more comfortable living either with him and his family or in accommodation in the town where he lives.
20 The guardian referred to reports and assessments which have been conducted to ascertain the best accommodation options for the represented person. She also referred to a medical assessment which indicates that the represented person cannot travel the long distance from her home town to visit her father and family.
21 Prior to the appointment of a guardian, the represented person had undertaken car trips of several hours duration, but in recent years,
(Page 7)
- her health had deteriorated, making these trips less viable. The guardian said that the doctor's report states that increased pressure on the base of the represented person's spine makes it impossible for her to sit for long periods, and trips longer than one or two hours should be avoided unless for medical purposes.
22 The father said that before his daughter moved into her present accommodation in the community, he could see her whenever he wished and she could visit him and his family. The father was informed during the hearing that he could still see the represented person whenever he wished but because of her inability to travel, this would necessitate him travelling to her home town.
23 There was lengthy discussion about the history of the relationship between the father and the represented person with whom he appears to have had little contact in recent years until his visit to her in December 2005. It transpired during the hearing that no family members have had recent contact with the represented person in recent years other than the December visit by the father.
24 The father made it clear that he is not in favour of his daughter living independently in the community, and expressed concern that the decision to move her from her mother's home had been made without consultation with him.
25 He said that he wants his daughter living close to, or with family, either himself or her mother. He said he is applying to be her guardian because she "needs a family member to be there to oversee" things for her to ensure she has optimal care. Because her mother is on an extended stay outside the State, there is no family member available to act in this role other than himself.
26 The father said that he does not believe that the guardian is acting in the best interests of his daughter because she "is not looking at [the represented person] on a daytoday basis - You need to be there on a daytoday basis so you can sort things out, that need to be done - by the time you go through all the channels to the Public Advocate, you know, it could take three months". The father proposes that if appointed guardian, he will move the represented person to live with him and his family or at least to live in the same town.
27 The guardian advised that the Public Advocate has twice thoroughly explored the proposed move to the father's town and has decided both times that even though she has extended family in the proposed
(Page 8)
- country town, it is in her best interests to remain living where she is. This decision was made after thorough investigation, discussions with various parties and visits to the represented person.
28 The guardian explained that moving would be emotionally and physically difficult for the represented person. She has longstanding relationships with her carers who have known her for a long time and are able to communicate with her, despite her very limited communication skills. She is familiar with, and is known in the country town, and she has a generous funding package which would be at risk if she moves, making replication of her independent living situation problematic, if not impossible.
PEG feeding tube
29 The father raised his concerns that the represented person "is terrible to feed". He proposed that this problem could be resolved by the insertion of a PEG feeding tube. The guardian said that this proposal had been explored and the recommendation from the represented person's doctors, including her specialist, was that this was not necessary at the moment.
30 Further, the represented person may not tolerate the procedure to insert the PEG, as this would require a general anaesthetic and she has not tolerated these well in the past. It is reported that the represented person "eats better for carers that she knows well, and as long as she's given plenty of time, she will eat as well as she can".
31 The mother pointed out that the represented person "enjoys taste" and with a PEG inserted she will be deprived of the pleasure of food. Mr Miller said that the majority of the carers are in agreement with the mother and do not see the need for a PEG.
Administration issues
Informal management of the estate
32 The father said he made the application for administration, and proposed himself as administrator, because he is concerned that the mother, who is managing the estate of the represented person, is out of the State, with no definite date for her return. He said that being geographically removed, she can't possibly be in touch with the represented person's needs, and it is therefore inappropriate for her to manage the estate.
(Page 9)
33 The mother explained that she has trusted friends and contacts in her home town who keep her informed about, and attend to, the represented person's financial needs. This was disputed by the father, who said he had been informed by the carers that it is difficult to get money to purchase necessities for the represented person. Discussion around this point revealed that any problems had been due to misunderstandings between the carers and the financial manager and had long since been resolved.
34 The mother explained that the represented person has an account in her own name which has three signatories to it. She receives a Centrelink pension and currently has approximately $3500 in savings. Two signatures are required for withdrawals from her account. While she is away, the mother has put a system in place whereby her friend, after ensuring that requests for purchases are appropriate, gets the locally resident two signatories to sign a withdrawal for the money to pay for the purchases.
35 The father made the point that he believed whoever was to administer the represented person's estate should live close by to ensure that money was available when required. Mr Miller said that there was no problem in obtaining money for purchases for the represented person.
Clothing, equipment and furniture
36 The father raised concerns about the provision of clothes and equipment, which he perceived as being inadequate for the represented person's needs. He said these concerns were based on information he had received from the carers, one in particular.
37 The father said that when he visited the represented person in December, the first time for some years, he found her living conditions to be quite "clinical", in that the home was furnished inadequately, resulting in him purchasing a wardrobe, "rugs and curtains and stuff".
38 Mr Miller said that the home is well equipped with a refrigerator, washing machine, dryer and other household items. It was purposebuilt for a person dependent on a wheelchair and 24hour care, and is equipped accordingly. He and the guardian described the represented person's "lovely bedroom … with lots of mobiles", and said that everything had been done to make the home as comfortable as possible.
(Page 10)
Relevant legislation
39 The principles to be observed by the Tribunal when making determinations in relation to applications are set out in s 4(2) of the GA Act.
40 These principles are:
"(2)(a) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b) Every person shall be presumed to be capable of
(i) looking after his own health and safety;
(ii) making reasonable judgments in respect of matters relating to his person;
(iii) managing his own affairs; and
(iv) making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c) A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d) A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e) An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the
- circumstances on the person's freedom of decision and action.
- (f) In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions."
41 It was agreed by those at the hearing, and reinforced by the medical reports, that the represented person does not have the capacity to make reasonable decisions for herself and is in need of others to do so for her. She therefore continues to satisfy the provisions of s 43 of the GA Act.
42 On receipt of an application for review under s 86 of the GA Act, except in the case of the Public Advocate, a represented person or a guardian or an administrator, the Tribunal must give leave under s 87 to an applicant to apply for review. In this case, the father was a person to whom leave must be granted under s 87.
43 Section 87(5)(a) and s 87(5)(b) provide:
"(5) The State Administrative Tribunal may
(a) refuse the request; or
(b) if it is satisfied that because of a change of circumstances or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review."
45 Section 90 of the GA Act outlines the powers of the Tribunal to confirm, amend or revoke an order and to appoint a new or additional guardian or administrator.
"90. Powers of State Administrative Tribunal on review
- (1) Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order
(a) amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;
(b) revoke the order, or revoke the order and substitute another order for it; or
(c) without limiting paragraphs (a) and (b)
(i) revoke the appointment of any guardian or administrator;
(ii) appoint a new or additional guardian or administrator;
(iii) appoint an alternate guardian.
46 Section 64(1) of the GA Act states that before an administrator can be appointed the Tribunal must be satisfied the person:
"(a) is unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b) is in need of an administrator of his estate."
Findings and reasons
Guardianship
47 The Tribunal accepts that the father wishes to be involved in the daytoday care of the represented person and feels that he has been denied this opportunity, initially by the mother who, after the marital separation, chose to take on the full care of the represented person, and more recently by those charged with the care of the represented person.
(Page 13)
48 The Tribunal also accepts that the father loves the represented person and wants what he feels is best for her. Unfortunately, what the father believes is best for the represented person is at odds with many of the decisions made by those charged with her care.
49 Neither the father, the mother nor the extended family visit the represented person on a regular basis, the mother not having seen her for two years, and similarly her brother, sister and father, who visited in December last year, the first time for some years.
50 The Tribunal accepts that the people with whom the represented person is most familiar and comfortable are her carers, some of whom have been with her for many years.
51 The Tribunal heard that the father, if appointed guardian, would move the represented person to the town where he resides. This would remove her from surroundings and a care regime with which she is comfortable and familiar. Further, a move to another town would put the generous care package, which allows the represented person to receive the 24hour care she requires, at risk. The Tribunal is satisfied that the decision for the represented person to continue to reside in her current accommodation has been made after appropriate investigation and consultation by the guardian and has been made in the best interests of the represented person.
52 The father expressed his concerns about the health of the represented person in respect of her eating difficulties. The Tribunal accepts the evidence provided by the guardian that the decision not to insert a PEG feeding tube has been made after consultation with appropriate medical practitioners. Further, the evidence provided by the mother and Mr Miller about the represented person's enjoyment of food, particularly when fed by carers she knows well, convinced the Tribunal that the decisions in relation to a PEG feeding tube have been made after due consideration and in the best interests of the represented person.
53 In summary, the Tribunal finds that all guardianship decisions discussed at the hearing have been made after appropriate consultation and are based on evidence that they are in the best interests of the represented person. The current guardianship order appears to be working well and there is no evidence to suggest that it will not continue to do so.
(Page 14)
Administration
54 The father raised concerns about the fact that the mother was out of the State with no firm date of return. He highlighted the difficulties the carers had had in the past in accessing money to pay for necessities for the represented person. It transpired, on further discussion about these concerns, that they were due to misunderstandings between the carers and the person given the responsibility for accessing the represented person's funds. If she was initially a little overzealous in her monitoring of expenditure, by all accounts, this had since been resolved and, according to Mr Miller, there are no ongoing concerns in this regard. Whenever money is required for necessities for the represented person, it is appropriately and readily accessible.
55 The Tribunal finds that the mother has managed the financial affairs of the represented person in a manner which ensures that the represented person's accounts and household expenses are paid, and has put in place a workable and satisfactory system while she is out of the State.
56 After consideration of the evidence provided at the hearing, particularly by the father and some other members of the represented person's family about what they consider inadequate clothing and a lack of adequate furniture in the represented person's home, the Tribunal accepted the evidence provided by the guardian and Mr Miller that the represented person's living conditions are appropriate to her situation and requirements.
57 Given the above, the Tribunal finds there is no reason to change a system which is a less restrictive alternative to an administration order, is working in the best interests of the represented person and is likely to continue to do so.
Orders
58 The Tribunal considered all the evidence available at the hearing and is satisfied that the represented person is a person for whom orders can be made and that there is the need for a guardianship order. The following orders were made:
1. The application for administration is dismissed.
2. The guardianship order appointing the Public Advocate plenary guardian of the represented person is confirmed. The order is to be reviewed by 25 May 2011.
(Page 15)
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN
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