CK - [2012] WASAT 189

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: CK [2012] WASAT 189

MEMBER: MS F CHILD (MEMBER)

HEARD: 14 FEBRUARY 2012, 1 MAY 2012 AND 18 JULY 2012

DELIVERED : 10 SEPTEMBER 2012

FILE NO/S: GAA 4059 of 2011
GAA 913 of 2012
GAA 914 of 2012

BETWEEN :CK
Represented person

Catchwords:

Guardianship and administration - Review of orders - Allegations of failure of duty by guardian - Failure to contact family members - Suitability for reappointment - Best interests of represented person that someone with knowledge of her medical history make treatment decisions

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43, s 43(1)(b), s 44, s 44(2), s 64, s 84, s 109, s 109(1)(a), s 109(1)(b), s 110ZD, Div 3 Pt 5
State Administrative Tribunal Act 2004 (WA), s 35

Result:

Appointment of Public Trustee confirmed on review
Appointment of guardians confirmed on review

Category: B

Representation:

Counsel:

Represented person : Council of Official Visitors (Acting as Agent)

Solicitors:

Represented person : N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On review of orders made for an elderly woman with a diagnosis of dementia, the administration order appointing the Public Trustee as plenary administrator of her estate was confirmed. Guardianship orders were also made reappointing her daughter as limited guardian to make decisions about treatment and restraint. The Public Advocate was reappointed as guardian to determine where the elderly woman was to live, as this remained one of the points of conflict between the woman's son and daughter.
The son of the woman had sought review of the guardianship order which had appointed his sister as guardian for treatment decisions. The guardianship and administration orders fell due for periodic review in the course of that proceeding. He said that his sister had failed in her duty as guardian, and proposed himself as guardian. He also said that he could do a better job as administrator than the Public Trustee at no cost to his mother's estate.
The Tribunal found that the daughter had not contacted her brothers about a significant care issue for the represented person as she had agreed to do. It found, however, that she was suitable for reappointment as guardian to make treatment decisions, and it was in the represented person's best interests that she be reappointed. The Tribunal accepted that the daughter had knowledge of her mother's health problems and history, and could bring this knowledge to any discussions with health professionals about the represented person's care. It was in the best interests of the represented person that treatment decisions for her be made in this way.
The reappointment of the daughter was supported by the Public Advocate, who was appointed limited guardian to make accommodation decisions. The Public Advocate did not support the appointment of the son, either as guardian or administrator.
The Tribunal accepted that there had been difficulties with the guardianship order; a lack of contact by their sister with the sons of the represented person about a significant issue, and a lack of clarity on the part of the nursing home about who had authority to make treatment decisions for the represented person. However, the Tribunal was satisfied that, taken as a whole, the order appointing the daughter had operated in the best interests of the represented person and should not be revoked.
The significant degree of distrust and ongoing conflict between all three children of the represented person supported the reappointment of an independent administrator to manage her financial affairs. While the son could continue to play an advocacy role in relation to his mother's financial affairs, the Tribunal determined that, despite the costs to the estate, it was in the represented person's best interests that her affairs be managed by the Public Trustee as the independent administrator. This was supported by her daughter and the Public Advocate.

Background

CK (represented person) is a 79yearold widow with a diagnosis of dementia. She has three children; her sons, RP and WP (RP being the elder), and her daughter, SL. Until June 2011, the represented person was living in her own home with services and the support of her daughter, sons and longterm friends. An Aged Care Assessment Team (ACAT) assessment dated 20 December 2010 reports that she was, at that time, eligible for services as a 'low care recipient'. An enduring power of attorney (EPA) was executed by the represented person on 13 December 2010, appointing SL as sole attorney.
WP made applications to the Tribunal in April 2011 in respect of his mother's affairs. In early June 2011, WP reports that he became more concerned about his mother's inability to care for herself at home. He took her to his own home overnight, but, because of her disturbed sleep pattern and behaviour, arranged for her admission to a care facility in an area close to his home the next day. WP apparently did not consult with his siblings about the move, and they were advised of the placement once it had occurred. SL objected to the placement on the basis that it was, she believed, not a respite placement but a permanent high care placement. She also said that she had identified other aged care accommodation, either closer to where their mother had lived, at which she might be able to keep her pet dog and enable her elderly friends to visit, or in the metropolitan area where both other children of the represented person lived. Once placed in the nursing home, the represented person reportedly became distressed and agitated. The records show that she was given significant sedating medications to manage aggressive and agitated behaviour. She was later reassessed by ACAT as a high care recipient.
The Public Advocate, as guardian for accommodation decisions, determined that it is not now appropriate for the represented person to be moved from the facility, despite the distance from her other children, because of the likely disruption to the represented person.
Although there has been a high level of conflict between the children of the represented person about a range of matters regarding the represented person in the proceedings before the Tribunal, all three children said that their conflicts and the poor communication have existed for many years and predate the represented person's loss of capacity to manage her own affairs.

Applications and history of orders

Following applications filed on 29 April 2011 by WP, the son of the represented person, for guardianship and administration orders and for intervention in an EPA, the Tribunal convened a hearing on 23 June 2011, at which all three of the represented person's children, RP, WP and SL, attended. By the time of the first hearing, the represented person had been placed at the facility in which she now lives, and she did not attend that, or subsequent, hearings. RP participated in the mediation which followed the first hearing and a subsequent hearing on 12 August 2011. However, following the appointment of the Public Trustee as administrator, he has not attended any further hearings before the Tribunal or made any written submissions. Records from the nursing home indicate that he and his family have visited his mother at the facility.
At the hearing on 23 June 2011, guardianship orders were made which appointed the Public Advocate as limited guardian to make decisions about where and with whom the represented person should live. This was because, although there was agreement that the represented person needed residential care, there was conflict about the location of that care.
SL was appointed as limited guardian to make treatment decisions on behalf of the represented person. WP said, at that hearing, that he would 'prefer' his sister to his brother, RP, to be involved in medical decisionmaking for their mother 'simply because of her background' (T:67; 23.06.11). RP, as the eldest child of the represented person, is at the top of the hierarchy of nearest relatives, pursuant to s 110ZD of the Guardianship and Administration Act 1990 (WA) (GA Act) and, as such, is potentially able to make treatment decisions for the represented person. RP had earlier agreed that independent decisionmakers should be appointed (at T:52; 23.06.11) in an effort to reduce the conflict which he said was impacting on the represented person. However, he later said that he would 'probably support' his sister's appointment as guardian (T:67; 23.06.11).
The support of the brothers for SL's appointment as guardian was conditional on consultation with them by SL. The guardianship orders were set for review by 23 June 2012.
The applications for the appointment of an administrator and intervention in an EPA were adjourned to mediation on 30 June 2011 before a Senior Member of the Tribunal. The purpose of the mediation was to ascertain if some agreement could be reached between the children of the represented person regarding the management of her financial affairs. Following their inability to reach any agreement, and because of the obvious continuing conflict and lack of effective communication between them, when the matter came back on for hearing on 12 August 2011, the Tribunal appointed the Public Trustee as plenary administrator of the estate, with review of the order by 23 June 2012 to bring it into line with the review of the guardianship orders made.
At the hearing on 12 August 2011, the Tribunal revoked the EPA executed by the represented person on 13 December 2010, which appointed SL as sole attorney. This was done as the specialist medical opinion given just prior to the execution of the EPA cast doubt on the represented person's ability to capably execute an EPA. Given this doubt and the high degree of conflict between the children of the represented person, the Tribunal found that the EPA was not an appropriate vehicle for the management of her financial affairs and, in any event, was inconsistent with the order made appointing the Public Trustee as administrator.
In respect of the applications made pursuant to s 109(1)(a) and s 109(1)(b) of the GA Act (s 109 applications), the orders made on 12 August 2011 directed the Public Trustee, as the administrator of the estate, to review the management of the estate by the attorney and make recommendations as to whether orders for the filing of records of the attorney, and for audit of those records, should be made. The hearing of the applications for intervention in the EPA was adjourned to 14 February 2012 for a report from the Public Trustee to be filed by 12 January 2012.
On 16 August 2011, WP filed an application, pursuant to s 17A of the GA Act, for review of the order appointing the Public Trustee as administrator of the estate.
At the hearing of that application by the Full Tribunal on 26 October 2011, the administration order was confirmed. In the oral reasons given for the decision by the Full Tribunal, reference was made to the Tribunal's need to consider compatibility between a proposed administrator and any appointed guardian (T:40; 26.10.11). Noting the 'animosity' between WP and SL, the Full Tribunal concluded that it could not appoint WP as administrator.
On 4 November 2011, WP filed an application for leave to apply for review of the guardianship order dated 23 June 2011, by which SL was appointed limited guardian. In his application for leave and for review, WP asserts that he and his brother were 'extremely unhappy with the job' that their sister was doing as their mother's limited guardian. He said that '[t]here has been a total lack of communication between our sister and mum's doctor and our sister and ourselves, which has caused much concern'.
Leave was granted in December 2011, on the condition that the only question to be determined on review was who should be appointed the represented person's guardian to make treatment decisions. The review was listed for hearing on 14 February 2012 to be heard together with the adjourned s 109 applications.
In respect of the s 109 applications, the Public Trustee had filed, as ordered, a report of the findings of the investigation of the management of the estate by SL, as donee of the EPA, in January 2012. However, WP had not inspected the report until just before the February 2012 hearing.
In summary, the Public Trustee reported that, although SL had not provided receipts for the period, the unaccounted for expenditure appeared reasonable for the represented person's needs over that time and an audit of accounts was not warranted.
At the February 2012 hearing, WP challenged the report and said that the investigation had been incomplete, as expenditure he had made with his mother's funds had not been examined and that the investigation was deficient overall. Further programming orders were made, including a further investigation and report by the Public Trustee.
In respect of the application for review of the guardianship order, at the February 2012 hearing, the Public Advocate's representative (Public Advocate) recommended that there be no change to the order appointing SL as 'medical guardian'. The Public Advocate reported having spoken directly with Dr G, the general practitioner managing the represented person's care:
… [Dr G] said that he had been in contact with [SL], that she did contact him and he has contacted her on occasion. There seems to be ongoing consultation about medication and the Public Advocate understands that [SL] is involved in this with the staff at [facility name deleted]. (T:22; 14.02.12)
The Public Advocate confirmed that it was not the practice of the Public Advocate, when appointed with authority to make treatment decisions, to regularly update family members about the represented person's condition. The Public Advocate said that:
… The Public Advocate would wait for family members to contact our office if they were concerned, or were requiring an update, otherwise we would touch base regularly with the facility if we felt there was a need. (T:22; 14.02.12)
WP did not accept the position as reported by the Public Advocate of her conversations with Dr G. He said '… without some sort of evidence of that contact, I do not believe there has been ongoing regular contact between the doctor and my sister' (T:25; 14.02.12).
All the applications were adjourned for further reports from the Public Trustee and the Public Advocate.
When the hearing was reconvened in May 2012, representatives of the Public Trustee attended and spoke to the report filed. The Public Trustee confirmed the recommendation that there was no need, in the opinion of the appointed administrator, for orders to be made, pursuant to s 109 of the GA Act, for the filing and audit of records maintained by the former attorney. WP was invited to consider the recommendation that orders were not required. His applications for intervention were adjourned to allow him to consider the Public Trustee's report. He was invited to make a decision as to whether he wished to proceed with the applications and, if so, to file a written submission with the Tribunal. Alternatively, he was invited to withdraw his applications, in writing, if he did not wish to proceed. Nothing was received from WP in the intervening period, and so those applications were again listed for hearing on 18 July 2012.
In respect of the guardianship review, at the May 2012 hearing, the Public Advocate reported on the contact between SL, as the 'medical guardian', and the doctor as follows:
[Dr G] reports that he has spoken to [SL] on numerous occasion[s] regarding geriatrician appointments, referral to a geriatrician to which [SL] supported that referral. [Dr G] said that he didn't have any concerns with [SL] acting as [the represented person]'s medical and treatment decisionmaker. He found it easy to contact her and he didn't identify any issues there. (T:58; 01.05.12)
However, she went on to say that nursing home 'staff were quite confused about what a guardian meant …'.
The Public Advocate reported that, in January 2012, a speech pathologist referral was made, as the represented person had a choking incident at the facility. The Public Advocate said that Ms W (clinical nurse manager) could not confirm whether SL's consent for the referral for a speech pathologist assessment was obtained. The Public Advocate reported that Ms W had indicated that there might be some communication difficulties between staff and SL, and this could be attributed to the geographical distance between SL and the facility, or 'it might simply just come down to a personality clash' (T:59; 01.05.12).
Ms W is reported to have said that WP 'gets things done for [the represented person]' and, again, 'she feels that this is a result of him being close by'.
The Public Advocate submitted that SL is making medical decisions appropriately for the represented person. She said that the general practitioner is reported to be comfortable with the communication between himself and SL. The facility indicates that it does have some 'small issues', but that is mainly about staff seeing WP, rather than having to contact SL to talk to her about the represented person. She went on to say that:
… The Public Advocate would only recommend changing the current order to appoint the Public Advocate as medical decisionmaker and that would be to minimise further conflict between family members that could eventually result in [the represented person]'s health care and treatment being jeopardised. (T:59; 01.05.12)
WP did not accept that contact had occurred with the doctor, and made allegations about SL's relationship with staff at the facility.
Because of the continued conflicting assertions about the contact SL had had with the doctor and the facility, the application was again adjourned for the production of the integrated progress notes (notes) from the facility, pursuant to s 35 of the State Administrative Tribunal Act 2004 (WA).
The administration order, having been confirmed by the Full Tribunal, was due for review by 23 June 2012. The guardianship orders made on 23 June 2011 also fell due for statutory review, pursuant to s 84 of the GA Act, by 23 June 2012. These reviews were heard together with the application for review of the guardianship order made by WP.
At the hearing on 18 July 2012, leave was granted to WP to withdraw his applications for intervention in the EPA.
The notes produced by the facility were considered, and further submissions were made by WP, SL and the Public Advocate.
At the conclusion of the 18 July 2012 hearing, the Tribunal reserved the decisions on review of the guardianship and administration orders and indicated that orders would issue as soon as a decision was made. Written reasons would then be produced, but this would take some time. Following the orders issuing, the Tribunal received further written submissions from WP. However, as the proceedings have been concluded, the material was not considered by the Tribunal and documents were returned to him.
These written reasons are of the decisions made on review of the guardianship and administration orders.

The reviews

The grant of leave in December 2011 for review of the guardianship order, which appointed SL as guardian, was limited to the consideration of the person to be appointed guardian for treatment decisions. However, on statutory review, pursuant to s 84 of orders made under the GA Act for the appointment of a guardian of the represented person and the appointment of an administrator of her estate, the Tribunal must be satisfied of all of the statutory criteria in s 43 and s 64 of the GA Act.
These provisions are subject to the principles in the GA Act, set out at s 4, which, in summary, provide that the primary concern of the Tribunal is the best interests of the represented person, orders should only be made if there are no less restrictive means by which the represented person's needs may be met, and any orders made should be in the least restrictive terms possible. Finally, the Tribunal should attempt to ascertain the wishes of the represented person.

Capacity

On review of the orders, there is no challenge to the earlier findings of the Tribunal, based on the medical reports then available, that the represented person has dementia and is unable to make reasonable judgments about her estate (s 64 of the GA Act), and that she is incapable of looking after her own health and safety, is unable to make reasonable judgments about her person, and is in need of oversight and care in the interests of her own health and safety (s 43(1)(b) of the GA Act). She is therefore a person for whom both administration and guardianship orders may be made.

Need

There is also no challenge to the need of orders. There are no less restrictive alternatives to the making of orders. The EPA made by the represented person has been revoked. She is, according to the medical evidence, incapable of executing an EPA.
Although her house has been sold to meet the aged care accommodation ingoing costs and her estate consists primarily of cash, the represented person has no capacity to manage any aspect of her financial affairs and needs someone to play that role.
In respect of decisionmaking for personal matters, there remains conflict between WP and SL about where the represented person should live, and therefore there is a need for an independent guardian to make decisions about her accommodation.
The represented person is unable to make treatment decisions for herself because of her dementia. It is reported that she has experienced heart problems in the past, including a heart attack, and has high blood pressure and other health problems.
Informal arrangements available for medical consent, pursuant to s 110ZD of the GA Act, were not supported at the original hearing. There is a need for a guardian to be appointed to make treatment decisions on the represented person's behalf.
The notes obtained from the facility in the course of the proceedings show that the represented person has been subject to significant levels of sedating medications since her admission, including injected antipsychotics for the purpose of chemical restraint. The first reference to PRN (as required) medication is on the day of admission to the facility (3 June 2011). The notes record the distressed, agitated and sometimes aggressive behaviour of the represented person. She is reported, on occasions, to have assaulted or attempted to assault staff and other residents.
Throughout the notes, there are a number of references to PRN medications for sedation. A review of the notes records the use of the following medications: Risperidone, Ativan, Temaze, Lorazepam, Serequel, Midalzolam and Serenace (by injection) after a psychotic episode, and Risperidal Consta by injection every 14 days. Haloperidol by injection is also noted. Some dates refer to the use of PRN medication without an apparent precipitating behaviour or cause. For example, on 4 June 2011, 0.5 milligrams of Risperdal is given to 'ensure that she remained calm'.
In the hearing in July 2012, the Public Advocate reported that medication which was prescribed as 'PRN' was given regularly, rather than 'as required', resulting in oversedation of the represented person. The notes dated 23 June 2011 record that '[Dr G] would like [the son and daughter] to come and see him in the rooms to discuss mum's care further[,] after last night's psychotic episode' as 'all phones [are] going to [message] bank'. It is unclear whether this message was passed on to either WP or SL.
There are numerous references to PRN medication being given to the represented person throughout the notes and in the period following the appointment of the guardian on 23 June 2011, but there is no record of consent from the guardian being obtained.
The notes on 12 August 2011 refer to a referral of the represented person for specialist assessment. On 17 August 2011, the notes state that '[Dr G] has ceased some of [the represented person]'s meds after speaking to the daughter last night. … [The represented person] is due to see the psychogeriatrician next week'. On 20 August 2011, the notes include the following:
… resident was 'very unwell', = resident slumped over in wheelchair[,] lips cynosed [sic] = I supported her head to increase airway, resident colour immediately improved, resident had vomit down the front of her clothes. … resident reviewed by [registered nurse] who has attempted to ring her [next of kin].
Later notes on the same evening record: 'Resident was a full staff feed tonight due to her being sleepy and unable to coordinate utensils …'. The note concludes: '? seizure'.
On 24 August 2011, the notes state that a geriatrician reviewed the represented person, who 'wants us to withhold her Risperdl constra [sic] injection'.
There is also reference to the trial of a lap restraint at meal times on 25 April 2012; the note concludes '… consult with [registered nurse] tomorrow re use of restraint and then seek family permission'. SL said, at the July hearing, that she had been asked to 'sign' for the use of the lap restraint for meal times in the weeks before the hearing, and had done so. She said that she was familiar with the use of restraints from her previous work experience and considered that physical restraints would be unnecessary, but that 'a small dose of some sort of sedative' would be all that the represented person required (T:60; 18.07.12).
There is a clear need for a guardian to make treatment decisions and to have oversight of, and make decisions regarding, chemical and other forms of restraint in the represented person's best interests.
The only question in issue before the Tribunal on review of the orders is who should be appointed guardian and administrator of the represented person's estate. WP proposes that he be appointed in both roles. SL opposes those orders and supports the appointment of the Public Trustee as administrator, and proposes that she be reappointed as guardian to make treatment decisions. The Public Advocate proposes that SL be reappointed for treatment decisions and supports the reappointment of the Public Trustee as plenary administrator. The Public Advocate supports her reappointment to decide where the represented person is to live.
A copy of an email dated 30 April 2012, submitted by WP from RP, states that RP now supports the revocation of SL's appointment as guardian for treatment decisions. He says, amongst other things, that she has been 'derelict' in her duty.

WP's applications

In his submissions, WP contends that SL has neglected her duty as guardian. He has withdrawn his earlier support for her appointment. Although WP makes wideranging allegations regarding the conduct of SL, particularly in respect of the operation of the EPA executed by their mother in 2010, in essence, as they relate to the guardianship order, they can be summarised as:
•SL did not contact the represented person's doctor in a timely way following her appointment as guardian, alleging that direct contact was not made with him until mid August 2011, despite her appointment on 23 June 2011.
•SL failed to contact him (or his brother) regarding their mother's condition. WP says that there had been no communication from SL to him regarding medical matters for their mother.
•SL had not established lines of communication with the facility where the represented person lives, that there is poor communication between them, and that she did not know the name of the clinical nurse manager.
WP also complains that his sister had not advised him that his mother had had a fall, that she had been assaulted by a male resident, and that there had been a choking incident in January 2012. He later conceded that SL had communicated to him by email about the choking incident. A copy of an email exchange, dated 13 January 2012, is before the Tribunal regarding this matter.
Regarding the lack of contact from SL, at the 12 August 2011 hearing, while later critical that his sister had, in his view, dealt with nursing staff and not the doctor directly, WP said:
With regards to [SL] and both my brother and myself being in agreement that she should look after the medical or medication aspect of my mother, I have no problem with that. I'll bow to her knowledge on that any day of the week. Needless to say, there has been no consultation back from her since she's been appointed with regards to what is happening with my mother's medication; just a small point I wanted to make. (T:12; 12.08.11)
It was clear, however, from WP's submissions that he, at least, was not relying on information from SL about this aspect of the represented person's care, since he said that he had '… spoken to the nursing staff repeatedly about Mum's medication right from the very start …' (T:16; 12.08.11).
WP says that he has a friend, an experienced nurse, who could assist with information and understanding of medical matters regarding his mother's care, should he be appointed guardian.
WP submits that the Public Advocate should not be reappointed to make decisions about accommodation, and was critical in his submissions in the July hearing regarding the performance of the Public Advocate.

SL's response

SL's written response to WP's application was read out at the February hearing, which said:
Contrary to what [WP] has claimed, I have also rung and spoken to [Dr G], who is managing her care. He has assured me [that] appropriate care is being taken and hasn't reported anything to me that warrants passing on. I have told [Dr G] and the nursing staff that I would like to be contacted at any hour if Mum experienced any problems. Should there be any problems requiring attention, I would be happy to inform my brothers. (T:16; 14.02.12)
SL says that, during the period of the guardianship, she has contacted both the nursing home and the doctor regarding the represented person. She advises that she was not told of the fall or the assaults on her mother to which WP refers, but that, if she had been, she would have let her brothers know.
SL says that her main contact with the facility is by telephone to the clinical nurses caring for her mother, and that she accepts that she did not know the name of the clinical nurse manager. She says that she was concerned about the level of sedation used on the represented person and the interaction of medications, and addressed this, both with the nursing home staff and the doctor. She became concerned because the represented person appeared to be asleep when she called, and appeared to be sedated, and had an unsteady and stooping gait when she saw her.
SL does not accept the suggestion from WP that she has poor communication with the staff. She says that she found the nursing home staff compassionate. She says that she had regular communication with them. SL takes issue with the lack of contact with her to advise her of matters of which WP says she should be aware. SL states:
… I do communicate with them regularly and every time I speak to them I've also said that I am more than happy for them to contact me at any time of the night or day, whether it's in the middle of the night or whatever, and tell me of any problems or run anything by me, so I can't see again how, if they don't choose to acknowledge their responsibilities or contact me, how [sic] I'm supposed to do anything about it. (T:67; 01.05.12)
If reappointed as guardian, SL says that she would 'front' the facility and provide the paperwork and make clear her role (T:47; 18.07.12). She is also critical that WP did not pass on to her information of which he was aware about their mother's care.
SL says that she is a nurse and is able to communicate appropriately and professionally, both with the doctor and the nursing home staff. She says that, at times, telephone contact with her mother was difficult. She says that she is at a considerable physical distance, living about three hours away by car, but that she can make contact by telephone with the doctor and the staff, and has done so, and visits her mother fortnightly and speaks directly to the staff while she is there.
SL says she has an understanding of her mother's medical history, as she accompanied the represented person to major medical treatments and appointments, and is best placed to communicate with health professionals about her mother's ongoing care. She spoke about a discussion she had with Dr G regarding sedation of her mother:
I told him I mentioned to him that she was exceedingly what I considered exceedingly sedated, and I asked him what she was on. He told me that she was supposed to be on certain medications, that they'd started her on a high dose which I don't necessarily agree with anyway, but that was his call started her on a high dose, and then their plan was that[,] as her condition allowed, it would be weaned down.
As you've said, there were certain medications that were supposed to be PRN, which means 'only as necessary'. I alerted him to the fact that she was getting one of these antipsychotic medications. Now, she could barely talk, she could barely walk, and she'd gone from picking her own underclothes and dressing herself et cetera, to being placed into nappies when she first went there, because of the state of sedation that she was in … (T:39; 18.07.12)
SL says that she also discussed with Dr G the interaction of cholesterollowering medication and medication for sedation. She says that high cholesterol 'was the predominant reason for [the represented person] having the heart attack' (T:70; 01.05.12). She reports that Dr G had agreed that the represented person would again have the cholesterollowering medication.
In respect of contact with her brothers, SL says that she did contact them about an incident at the facility in which the represented person choked on food. She said that she understood that the choking incident was able to be resolved quite quickly at the facility. WP states that the incident was more serious, as the represented person '… almost choked to death on a large piece of chicken which hadn't been properly cut up for her …' (T:17; 14.02.12). Whatever the correct position, SL says that she sent an email to both RP and WP. WP concedes that he received an email, but states that he was already aware of the incident.
At the hearing on 12 August 2012, SL agreed that she would contact her brothers to keep them informed regarding the discussion she planned with the general practitioner about the sedating medication. From WP's submissions, it does not appear that she did so.
SL states that, because of the antagonism shown to her by her brothers when there is contact, she will not contact them to simply update them if there have not been significant changes in the represented person's condition. She says that, if reappointed, she will contact them by sending an email if something significant occurs but, in an urgent situation, such as a hospital admission, she would telephone them.
SL agreed that she would consult them about end of life decisionmaking for the represented person by contacting them by email (T:49; 18.07.12).
In relation to communication with the facility, the Public Advocate reports that, despite a copy of the guardianship orders being held by the facility, there was uncertainty among some of the nursing home staff as to who had authority to make decisions for the represented person. The Public Advocate reports that, when asked, Ms W could not confirm whether consents had been sought from SL, despite knowledge of the orders in place.
Although there are a number of references to contact by SL with the facility, and the notes record that she is informed of various matters as 'next of kin' by staff, from a review of the notes as a whole, it is clear that many decisions, which could be regarded as treatment decisions, were made for the represented person at the facility without reference to, or consent from, the guardian appointed for this purpose.
It may have contributed to the uncertainty on the part of the nursing home staff that WP, too, was actively involved in medical matters for the represented person. For example, he asked for xrays of the represented person's back following a fall, apparently without consent of the guardian and, according to the notes, signed the ACAT referral request on 6 July 2011, at the request of staff. When asked by a staff member on 14 September 2011 about end of life decisionmaking for the represented person, WP is reported to have said that the Public Advocate was the guardian.
The notes of 14 September 2011 report the following:
[The represented person]'s son [WP] has been in today to state that he is unable to complete the end of life wishes[,] as the Public Advocate is being appointed at this time. He will know in October who will be the contact for [the represented person] after this. He did state that she has a funeral plan, and he will try to find it and tell us her wishes.
It was put to WP, in the hearing on 18 July 2012, that the true position at 14 September 2011 was that SL was the guardian for medical matters. He made the following comments:
[WP]: No, she was not the she was the medical guardian.
[MEMBER]: Yes.
[WP]: Nothing to do with her I don't even know what an end of life thing is, to tell you the truth. I have no idea. It was something to do with the management of mum and I said to them straight out, 'I don't know anything. I cannot do anything about this, I don't know anything about it'. I told them that the [P]ublic [T]rustee was appointed as her administrator.
When asked about his understanding of the role of SL as guardian, WP said that a 'full explanation' had not been given to him. Despite this, he agreed that he had a clear understanding of his expectations of SL's performance in the role of guardian.

Administration

WP says that he could do a better job of the management of his mother's estate without cost to the estate. He says that it was through his intervention that the Public Trustee was prevented from selling the house property of the represented person at a lower price than was finally achieved.
WP is critical of the Public Trustee's performance regarding the sale of the represented person's house property and her motor vehicle, and dealing with the facility about funds said to be owed as interest on the ingoing fee. He is also critical that funds had been advanced to the facility for items of clothing which he said the represented person does not need. He submits that the main reason errors have been made by the Public Trustee and the Public Advocate is that they do not love or know his mother.
WP says that both his sister and brother are too busy in their work and personal lives to give the attention that their mother needs. He says that he has resigned from work, about two years before, because of 'work[]related stress', and says that his problems at work cost him '… severely, financially and from a stress point of view …' (T:30; 18.07.12). However, since he is not working, he says that he has the time to act as both administrator and guardian for the represented person without any charge to her estate.
SL does not support the appointment of WP as administrator. She states that her mother chose her to manage her finances. Through the execution of the EPA in December 2010, and prior to that with assistance with her banking, SL states that the represented person did not want WP involved. On the other hand, both WP and SL allege that their mother has, at different times, made critical comments about the other. Because of the antagonism between them, weight cannot be placed on their reports of their mother's wishes. However, the report of the Public Advocate for the original hearing notes that the represented person had agreed that she was comfortable with SL continuing to manage her finances.
RP's current view regarding the administration of the represented person's finances is unknown. However, at the hearing on 12 August 2011, he expressed strong views, and opposed the appointment of WP as administrator.

RP referred to WP's submissions as 'laughable' and 'a whole lot of untruths' (T:7; 12.08.11). Later, regarding the proposals for WP's appointment as administrator, RP said:
… He invents some of these statements sometimes, I believe, to make his case. I think he thinks he's a lawyer. But unfortunately he colours things. He will take control of the situation. There will be no negotiation. It is his way or the highway and that is my biggest fear, that there will be no ongoing consultation and we will have an ayatollah running the situation. (T:10; 12.08.11)
When referring to his manner and communication with others, WP said, in his final submissions on 18 July 2012, that:
I make no apologies for being forthright, and if people are offended by that, they need to get over it. … (T:36; 18.07.12)
The Public Advocate supports the reappointment of the Public Trustee as administrator of the estate because of the ongoing conflict between the children of the represented person.

Conclusion

SL did not contact her brothers about her concerns about overmedication of the represented person, which was a significant issue and should have been communicated to them after the discussion she had with Dr G in August 2011. She communicated to them about the choking incident, although she accepted the explanation by the facility that it had been resolved. It is difficult to understand why she did not communicate in the same way on the issue of sedating medication used with the represented person. The medication issue was obviously a matter of concern to her, and yet she did not pass on the information to her brothers, despite her stated willingness to do so.
What is clear is that WP was not dependent on SL for information about their mother's condition, as he is able to visit frequently (because of his geographic closeness to the facility) and speak directly to staff. However, RP is not in this position. The notes show that his visits have been much less frequent. It is incumbent on a guardian to maintain supportive relationships by keeping family members informed of significant information. The Tribunal considers that it was a failure on the part of SL that her concerns about overmedication were not passed on to the sons of the represented person, as it was a significant issue and she had knowledge of it.
The allegations that she has failed in her duty as guardian, by not being aware of the fall and the assaults on the represented person, is not accepted. SL was reliant on the facility to inform her of significant matters. It is accepted that, due to uncertainty on the part of staff, SL was not always informed of incidents by staff, such as the assaults on the represented person, as she could have expected. SL's view expressed in the hearing is that staff were keeping her informed about issues for the represented person. WP was in possession of information about their mother which, no doubt, could have contributed to good decisions being made, but it appears that he did not share that information with SL as the guardian.
The failure of SL to 'keep her brothers informed' more generally can be attributed both to her reluctance to have contact with them and also to the fact that she was simply not informed of many significant matters by the facility. The evidence of the Public Advocate, which is accepted, is that there was confusion among some staff about the role of SL as guardian, and sometimes, it appears from the notes, that the facility did not appreciate the need to refer treatment decisions to her. WP, too, does not appear to have understood the scope of the role, but is highly critical of what he says are failures on the part of the SL to meet her responsibilities. In his email, RP echoes that view.
It is not unusual for there to be what might be described as teething problems in the appointments of guardians (or administrators), with lack of understanding or acceptance of the role by others and/or lack of certainty and apprehension about the assertion of their authority on the part of the appointee. It is certainly not unusual that residential care facilities take some time to recognise the authority of an appointed guardian. This can be the case even when the Public Advocate is the appointed guardian.
The complaints of WP are that there was a delay of some weeks between SL's appointment as guardian and her direct contact with the doctor about the medications used with the represented person, and a failure to establish lines of communication with the facility. SL does not accept that she did not have lines of communication with the facility. Even if there was a delay in contacting the doctor (and this is not accepted by SL), this might be explained by SL's lack of experience in the role of guardian. However, in any event, by the time WP made his application in November 2011 seeking review of the guardianship order, he acknowledges contact had occurred between SL and the doctor some months previously in August 2011.
At the hearing in July 2012, SL accepts that she needs to involve her brothers in a discussion about end of life decisionmaking for the represented person. She says that she will do so by emailing them to seek their views. If this consultation does not occur, the Tribunal is in no doubt that further applications for leave to seek review of the order will be made.
The Tribunal accepts that there have been problems with the order; the lack of contact from SL with her brothers about a matter of significance, being the overmedication of the represented person, and uncertainty on the part of the nursing home about who had authority to make treatment decisions, which appears to have resulted in treatment decisions being made without lawful authority.
Despite these shortcomings, the Tribunal considers that, overall, the order for medical treatment decisions has operated in the best interests of the represented person. This is so, particularly in relation to advocacy of SL regarding the sedation given to the represented person in the facility and her communication regarding the drug interactions with the doctor.
SL has knowledge about her mother's medical history and understanding of medical and nursing processes, and, despite the distance from the facility, according to the evidence of the Public Advocate, can communicate cooperatively and appropriately with the doctor and the carers. In the hearing in July 2012, SL reiterated her views about oversedation of her mother, but said that the represented person could not be put in the position of placing herself, other residents or staff at risk, due to her behaviour. In these circumstances, she supports the use of some sedation. She also had consented to the use of a lap restraint to be used at meal times. It is apparent, from her expressed views, that she will monitor these issues.
The GA Act provides that the Public Advocate should not be appointed unless there is no one else suitable or willing to act as guardian. In relation to the question of accommodation decisionmaking, the need for independence is clear. However, in relation to treatment decisions, according to Dr G as reported by the Public Advocate, SL has been making appropriate treatment decisions for the represented person. The question is whether SL's failure to contact her brothers means that she is unsuitable for appointment. The proposal of WP must also be considered for his suitability and the best interests of the represented person. The Tribunal does not accept that it is the duty of the guardian to update the sons of the represented person, but it is appropriate that she communicate treatment decisions and care issues to them.

Who should be appointed guardian

Section 44 of the GA Act provides for who may be appointed guardian, and provides as follows:
(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.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
Section 44(2)(a) of the GA Act refers to the desirability of preserving existing relationships within the family of the represented person when considering suitability of any proposed guardian. The children of the represented person said that the conflicts between them existed prior to the matters coming before the Tribunal. The preservation of relationships, as they exist with the represented person, is of critical importance, as is the management of conflict, such that it does not impinge on the interests of the represented person.
With regard to the other factors in s 44(2) of the GA Act of compatibility with the represented person and any appointed administrator, the wishes of the represented person and the ability to perform the functions as guardian, the Tribunal finds the following.
SL is compatible with the appointed administrator, as she supports the appointment of the Public Trustee as administrator and her appointment as medical treatment guardian is supported by the Public Advocate (s 44(2)(b) of the GA Act).
Although the represented person's wishes cannot now be ascertained, it is consistent with the reported previous actions of the represented person that SL is involved in decisions about medical treatment and care. The original support of her brothers, albeit on the proviso that she consulted with them, supports this to some extent (s 44(2)(c) of the GA Act).
With respect to the ability to perform the functions of making treatment decisions, SL is able to perform the function of making treatment decisions for the represented person, as she knows the represented person's medical history and has the skills and knowledge to make informed decisions about medical treatment for the represented person (s 44(2)(d) of the GA Act).
Conversely, in respect of WP's proposal for his appointment as guardian, while RP, in an email dated 30 April 2012, now supports the revocation of SL's appointment and the appointment of WP as guardian for treatment decisions, the Public Advocate, the existing guardian for accommodation decisions, and SL do not. WP opposes the appointment of the Public Trustee and is critical of the administration of the estate.
Although WP is a strong advocate for what he believes are his mother's best interests, it is not clear that he would be able to perform the functions of making treatment decisions. He says himself that he does not have a complete understanding of the role of a guardian: for example, he did not appreciate that the consent of the guardian, and not that of the doctor, is required for xrays of the represented person, and he says he has 'no idea' about what 'end of life decisionmaking' means. Although it is accepted that WP believes that he can make treatment decisions in the best interests of the represented person, his lack of experience and knowledge in these matters is evident, as he says that he will obtain assistance from a friend who is an experienced nurse regarding medical matters. It is unknown whether the friend has any direct knowledge of the represented person's medical history.
Taking into account the factors in s 44(2) of the GA Act, the Tribunal is not satisfied that WP is suitable for appointment as guardian for treatment decisions.
Considering the principles in s 4 of the GA Act, the appointment of SL is less restrictive than that of the Public Advocate. In terms of the wishes of the represented person, the history points to the involvement of SL in medical treatment decisions for the represented person consistent with her wishes. Finally, despite the deficiencies in SL's contact with her brothers regarding the overmedication of the represented person, the overriding obligation of the Tribunal is to make an appointment of a guardian for treatment decisions in the best interests of the represented person. The Tribunal considers that it is in the best interests of the represented person that treatment decisions be made for her by someone who is familiar with her medical history and background, and who has sufficient medical knowledge to be an advocate for her. For the reasons given, the appointment of SL as guardian for treatment decisions is confirmed, with the additional function to make decisions about restraint.
It is clear from the history of the applications before the Tribunal and WP's submissions in all of the proceedings, including the final hearing in July 2012, that WP has strong views about the management of his mother's financial affairs, first by SL as attorney, and then by the Public Trustee as administrator. He is highly critical of both the circumstances of the execution of the EPA and the management of the finances, pursuant to the EPA, by SL. It appears to the Tribunal that these concerns have been a driver of the proceedings before the Tribunal. These proceedings have increased the sense of distrust and conflict between family members.
Although WP submits that he should be appointed administrator, which would result in savings to the estate of fees paid to the Public Trustee, the fees charged by the Public Trustee cannot be a barrier to the appointment of the Public Trustee if it would otherwise be in the best interests of the represented person that her affairs be managed in that way. The extreme conflict and distrust among the children of the represented person regarding financial matters from the beginning of the proceedings before the Tribunal indicates that a professional and independent appointment is needed.
It is appropriate, given the progressive nature of the condition of the represented person and in the interests of the reduction of conflict, that longterm orders be made.

Orders

For these reasons, the Tribunal makes the following orders:

Guardianship

1.The order is revoked and a guardianship order in the following terms is substituted for it:
The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East 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; and
(b)to decide with whom the represented person is to live.

2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
[SL] of [address deleted] is appointed limited guardian of the represented person with the following functions:
(a)subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person; and
(b)to consent to the use of chemical or physical restraint in respect of the represented person and to decide matters incidental thereto.

3.This order is to be reviewed by 18 July 2017.

Administration

1.The order is confirmed as follows:
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 Act.
2.This order is to be reviewed by 18 July 2017.

I certify that this and the preceding [117] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER