CS and NS
[2015] WASAT 116
•16 OCTOBER 2015
CS and NS [2015] WASAT 116
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 116 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:3755/2014 | 4 AUGUST 2015 | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) MR J MANSVELD (SENIOR MEMBER) MS C WALLACE (MEMBER) | 16/10/15 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Limited guardianship order amended Plenary administration order amended | ||
| B | |||
| PDF Version |
| Parties: | CS NS |
Catchwords: | Review under s 17A of Guardian and Administration Act 1990 (WA) Represented person with diagnosis of dementia Whether represented person is a person for whom a guardianship or administration order can be made Whether represented person is in need of a guardian and administrator Suitability for appointment as guardian or administrator |
Legislation: | Guardian and Administration Act 1990 (WA), s 4, s 4(2), s 4(3), s 4(5), s 4(6), s 4(7), s 17A, s 44, s 44(2), s 68(1), s 68(3), s 84, Pt 5, Pt 6, Div 3 of Pt 5 State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(3) |
Case References: | Nil |
Summary | This proceeding involved a review under s 17A of the Guardian and Administration Act 1990 (WA) by a Full Tribunal of a decision of a single member to appoint the Public Trustee as plenary administrator of the estate of NS and to appoint the Public Advocate as the limited guardian of NS.,The Tribunal found on the evidence, that NS was a person for whom orders could be made. The principal matter in issue was whether CS, the applicant and the son of NS, should be appointed as guardian and administrator.,Based on the medical evidence before it, the Tribunal determined that CS, who has a diagnosis of vascular dementia, did not have capability of making reasonable judgments in her own best interests and was in need of a guardian and administrator.,The Tribunal was not satisfied that CS was a suitable person to be appointed as either the guardian of NS or as the administrator of her estate. No other party proposed themselves for these appointments.,The Tribunal therefore reappointed the Public Trustee as plenary administrator for NS's estate and the Public Advocate as limited guardian of NS. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : CS and NS [2015] WASAT 116 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT)
- MR J MANSVELD (SENIOR MEMBER)
MS C WALLACE (MEMBER)
- GAA 562 of 2015
- Applicant
AND
NS
Represented Person
Catchwords:
Review under s 17A of Guardian and Administration Act 1990 (WA) Represented person with diagnosis of dementia Whether represented person is a person for whom a guardianship or administration order can be made Whether represented person is in need of a guardian and administrator Suitability for appointment as guardian or administrator
Legislation:
Guardian and Administration Act 1990 (WA), s 4, s 4(2), s 4(3), s 4(5), s 4(6), s 4(7), s 17A, s 44, s 44(2), s 68(1), s 68(3), s 84, Pt 5, Pt 6, Div 3 of Pt 5
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(3)
Result:
Limited guardianship order amended
Plenary administration order amended
Summary of Tribunal's decision:
This proceeding involved a review under s 17A of the Guardian and Administration Act 1990 (WA) by a Full Tribunal of a decision of a single member to appoint the Public Trustee as plenary administrator of the estate of NS and to appoint the Public Advocate as the limited guardian of NS.
The Tribunal found on the evidence, that NS was a person for whom orders could be made. The principal matter in issue was whether CS, the applicant and the son of NS, should be appointed as guardian and administrator.
Based on the medical evidence before it, the Tribunal determined that CS, who has a diagnosis of vascular dementia, did not have capability of making reasonable judgments in her own best interests and was in need of a guardian and administrator.
The Tribunal was not satisfied that CS was a suitable person to be appointed as either the guardian of NS or as the administrator of her estate. No other party proposed themselves for these appointments.
The Tribunal therefore reappointed the Public Trustee as plenary administrator for NS's estate and the Public Advocate as limited guardian of NS.
Category: B
Representation:
Counsel:
Applicant : In Person
Represented Person : N/A
Solicitors:
Applicant : 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 two applications made under s 17A of the Guardian and Administration Act 1990 (WA) (GA Act). The first application was made by CS on 6 September 2014 seeking review of a decision made by a single member of the Tribunal on 20 August 2014 appointing the Public Trustee as plenary administrator of the estate of NS. The second application was made by CS on 9 February 2015, seeking a review of a decision made by a single sessional member of the Tribunal on 18 December 2014 to appoint the Public Advocate as the limited guardian of NS.
2 In order to provide proper context to the current applications, it is useful to provide a brief history of the prior proceedings in the Tribunal.
History of proceedings in the Tribunal
3 Applications seeking the appointment of a guardian and administrator for NS were made to the Tribunal in June 2014 by her son CS. What appeared to precipitate the initiating of those applications was the recent passing away of the husband of NS and a difference of opinion amongst the three children of NS as to whether informal arrangements of support were operating in the best interests of NS.
4 At the time of the original applications, NS was an 88yearold lady with a diagnosis by a treating geriatrician, Dr K, of vascular dementia precipitated by a stroke that NS suffered in August 2007. The medical evidence before the Tribunal was that NS lacked capability to make reasonable decisions of both a personal and financial nature and also that she lacked capacity to execute an enduring power of attorney.
5 There had been some attempts to support NS informally. They included her daughter JW managing some aspects of her financial affairs as joint signatory to one of her bank accounts, and her granddaughter, JS, and her partner providing full time care for NS in her home, supported by other family members and community services.
6 It appears that conflict began to emerge between the children of NS following her hospital admission in early 2014. The two daughters of NS became concerned as to whether JS could continue to provide the high level of care NS required in order to remain at home. In addition, at the hearing before the Tribunal, the Tribunal was informed that JS was exhibiting signs of carer's stress and feelings of being overwhelmed by the responsibility of being a fulltime carer for NS (T:15-16; 20.08.2014).
7 The substance of the original applications made by CS to the Tribunal was that CS believed that his mother required a formal guardian and administrator and that he ought to be appointed in both roles. He was concerned that JW was not properly managing his mother's financial affairs. In particular, he expressed the view at the hearing that his daughter ought to be paid full remuneration in respect of her role as fulltime carer.
8 In relation to the guardianship application, the main concern of CS related to whether NS could remain supported in her own home or whether she required a residential care facility. The view expressed at the hearing by CS was that his mother ought to remain in her own home and that any accommodation decision should rest with him as legal guardian.
9 The Tribunal dismissed the original guardianship application on the basis that it was not satisfied that there was a need for a guardian to be appointed based on its view that the informal arrangements could continue to operate in the represented person's best interests. In relation to the original administration application, the Tribunal found that, by reason of a mental disability, NS was unable to make reasonable judgments in respect of matters relating to all of her estate, and that she needed a plenary administrator to be appointed, particularly to address estate issues following the death of her husband.
10 The Tribunal appointed the Public Trustee as administrator, in light of the apparent conflict between the children of NS as to how her financial affairs ought to be managed. In addition, the Tribunal considered that CS was not the appropriate person to determine whether the estate could and should pay remuneration to his daughter and if so, in what amount.
11 The administration order was made subject to review by the Tribunal by 20 August 2015.
12 The Tribunal then received a further application seeking the appointment of a guardian in November 2014, this time initiated by the represented person's daughter JW. The concerns precipitating the making of this application appear to relate to the level and appropriateness of the care NS was receiving in her home and a view that she now required a higher level of care that could only be provided by a residential care facility.
13 The second guardianship application was heard by a single sessional member of the Tribunal on 18 December 2014. At the hearing, the Tribunal was informed by JW that NS had recently been admitted to hospital exhibiting low iron and severe dehydration. JW informed the Tribunal that the care needs of NS had increased, that JS and her partner were no longer capable of continuing as fulltime carers, and that CS had declared his intention to step into this role. JW informed the Tribunal of her concerns in respect of this arrangement. The two daughters of NS informed the Tribunal that the treating team involved in the care of NS and the service providers were all of the view that NS required 24 hours a day, seven days a week supervision which could only be offered at a residential care facility.
14 CS expressed views to the Tribunal at this hearing that his mother had capacity to make her own decisions. He informed the Tribunal that NS was improving, did not have a diagnosis of dementia, and simply had a problem with her speech (T:4; 18.12.2014). He informed the Tribunal that NS could make her own decisions (T:9; 18.12.2014). CS said that NS ought to remain at home and that if she was placed into a residential care facility that it 'would destroy her' (T:19; 18.12.2014).
15 The Tribunal found that NS lacked the capability of making personal decisions in her own best interests and that there was a need for a guardian to make decisions about accommodation, medical treatment and to determine the services to which the represented person should have access. The Tribunal determined that the Public Advocate be appointed as an independent guardian based on the following findings:
a) a clear conflict existed between CS and his sisters in relation to what decisions ought to be made for NS and by whom; and
b) the unsuitability of CS as a proposed guardian given his reluctance to take into account and give any weight to his siblings' views, and his inability to make an accommodation decision objectively because of his fixed view that NS ought to remain living in her own home.
16 The appointment of the Public Advocate as guardian was subject to review by 20 August 2015.
17 The current applications seek review of both decisions to appoint the Public Trustee as administrator and the Public Advocate as guardian. Hearing dates in October and November 2014 and April 2015 were vacated at the request of CS. The applications were ultimately heard by a full Tribunal on 4 August 2015.
Issues for determination
18 A review under s 17A of the GA Act involves a fresh consideration of the matters that were put before the single member including consideration of any new material presented whether or not it was before the single member 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.
19 In review matters the Tribunal may either affirm the decision being reviewed, amend the decision being reviewed or revoke the decision and make a new decision; s 29(3) of the SAT Act. Regard must be had in review matters of this nature to the provisions in Pt 5 and Pt 6 of the GA Act and also to the principle set out in s 4 of the GA Act.
20 The issues to be determined in this review application are:
1) Is NS is a person for whom a guardianship or administration order can be made? and
2) Is there a need for a guardianship or administration order?
21 If both of the above questions are answered in the affirmative, then the following additional issues for determination arise:
3) Should any order made by the Tribunal be plenary or limited in nature?
4) If limited, what decision making functions ought to be conferred on the appointed guardian and/or administrator?
5) Who is willing and suitable to be appointed as guardian and/or administrator?
6) When should the order(s) be reviewed by the Tribunal?
22 When considering the issue as to whether any order made by the Tribunal should be plenary or limited in nature, regard must be had to the statutory requirement in s 4(5) of the GA Act. Effectively, the Tribunal ought not to appoint a plenary guardian in circumstances where the appointment of a limited guardian would be sufficient. Further, any order appointing a guardian or an administrator must be in terms that reflect the least restrictive option available; s 4(6) of the GA Act.
23 In determining the application as a whole, including each of the above issues for determination, the Tribunal is required to have NS's bests interests as its primary concern; s 4(2) of the GA Act. In addition, it is necessary where possible, to ascertain the views and wishes of NS in relation to the matters raised by these applications; s 4(7) of the GA Act.
Issue 1: Capacity
24 The Tribunal is required to start from the position of a presumption of capability which must be displaced in order to appoint a decision maker for a person; s 4(3) of the GA Act.
25 With the exception of CS, all of the interested parties participating at the review hearing were in agreement that NS lacked capability and was in need of a guardian and administrator.
26 The following question was put to CS at the hearing:
MANSVELD MR: So do you think that your mother would understand and be able to make a decision about her care needs, and whether at a certain point she might require care in an aged care facility?
CS: Yes, definitely (T:34; 4.08.2015).
27 The medical evidence before the Tribunal is the report of Dr K previously referred to. Dr K is a specialist in the area of geriatrics and has diagnosed NS with vascular dementia, being a progressive impairment to her cognitive ability. The opinion of Dr K was that as a result of this diagnosis the represented person was not able to make reasonable judgments in her own best interests.
28 Although at the hearing before the full Tribunal, and on prior occasions at the Tribunal, CS has disputed the medical evidence of Dr K, including the diagnosis, he has not provided the Tribunal with any capacity evidence which contradicts that of Dr K. In the circumstances, the Tribunal cannot accept the contention made by CS that NS has capacity. The Tribunal is satisfied that the presumption of capability in favour of NS can be displaced on the basis of the medical information before us.
Issue 2: A need for Orders
29 All parties before the Tribunal were in agreement that NS was in need of both a guardian and an administrator.
30 As far as administration was concerned all parties agreed that someone was required to manage NS's financial affairs on her behalf given that there was no less restrictive alternative available, such as an enduring power of attorney.
31 In respect of guardianship, although the family had attempted to make decisions together in an informal manner, at the hearing the children of NS had conflicting views as to what decisions would be in her best interests, particularly in relation to accommodation. In those circumstances, we agree with the single member of the Tribunal that the less restrictive arrangement which had been operating cannot continue.
32 In relation to guardianship, it also became clear during the course of the hearing that accommodation was a continuing area that required a decisionmaker, as were services and medical treatment. In addition, it was raised for the first time at the hearing that contact may be a required decisionmaking area for a guardian. CS submitted that a guardian was required to make a decision as to when and how often contact occurred between family members and NS and that contact issues could not be resolved by any less restrictive arrangement (T:44; 04.08.15).
Issues 3 and 4: Scope of Orders
33 In relation to administration, we have come to the conclusion that a plenary administrator is still required. The medical evidence before us is that NS is not capable of making decisions in relation to the entirety of her estate. In the context of that evidence it is not appropriate for the Tribunal to make a limited order.
34 In relation to guardianship, we do not find a need for the appointment of a plenary guardian because decisions of a guardianship nature are only required to be made in the areas of where and with whom NS lives, ongoing treatment and health care decisions and whether NS continues to require services. We are of the view that family members can continue to make contact decisions on an informal basis.
Issue 5 - Who should be appointed
35 This issue is the primary motivation for the current review applications being brought by CS. He contends very strongly, assuming his mother requires an administrator and a guardian, that he is the most suitable person for both roles. The daughters of NS both contend that CS is unsuitable and that independent appointments ought to be made again.
36 Although the Public Advocate is a guardian of last resort under the GA Act, she contends in this matter that she ought to be reappointed as guardian for NS and that the Public Trustee is reappointed as plenary administrator.
The relevant legislation
37 Section 44 of the GA Act relevantly provides 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.
…
(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.
38 In relation to administration, s 68(1) and s 68(3) of the GA Act provide:
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.
40 Section 44(2) of the GA Act relevantly sets out four factors for the Tribunal to consider when determining whether CS would be suitable to act as guardian for NS. We will address each of those factors below.
CS's compatibility with the Public Trustee
41 It became clear during the course of the hearing that CS had difficulty in accepting a number of decisions made by his mother's administrator, including the decision not to pay full remuneration to his daughter as fulltime carer and the decision not to allow CS to undertake certain maintenance works at the home (T:13; 04.08.15 and T:39; 04.08.15). His submissions about these decisions reflects a lack of appreciation of the role and authority of the administrator.
42 Given that any significant decision made by CS as guardian would require coordination and facilitation with the administrator, we are not satisfied that CS, if we were to re-appoint the Public Trustee, would have a good working relationship with the Public Trustee in order to facilitate decisions made by him as guardian.
The desirability of preserving existing relationships
43 We are also concerned that CS would have difficulty in preserving effective relationships with significant people in NS's life. Of primary concern is the high level of conflict which exists between CS and his two siblings. In the view of the Tribunal it would be impossible in these circumstances for CS to fulfil one of the obligations of the guardian, being to preserve existing relationships. The Tribunal questioned CS directly about this point at the hearing. Senior Member Mansveld asked, at T:39-40; 04.08.2015, the following:
MANSVELD MR: Just finally, what current communication do you have with your sisters?
CS: None.
MANSVELD MR: No communication at all?
CS: No. They won't speak to me.
MANSVELD MR: So no discussion about how your mother is doing or …
CS: No.
MANSVELD MR: … whether her care needs are increasing; anything like that?
CS: No.
MANSVELD MR: Ok.
CS: They just say that her care needs are increasing. Whenever they need to, they try and get mum into care.
MANSVELD MR: No, but there's no discussion with your sisters, and you're on the ground, so to speak; you're there.
CS: Yes.
MANSVELD MR: So you see more of your mother than your sisters do. There's no communication between you and them as to how your mother is going?
CS: No.
44 We are satisfied that all of the children of NS are important in her life. It is therefore a clear requirement of any guardian to encourage the preservation of NS's relationship with her daughters. We are not satisfied that CS is able to satisfy that obligation.
NS's wishes in respect of guardianship
45 Given NS's extreme difficulty communicating, resulting in her inability to participate in the hearing, it was not possible to ascertain her views on who should be appointed guardian.
Would CS be able to perform the functions vested in him as guardian?
46 We have particular concerns about CS's ability to perform three of the functions allocated to the guardian, namely to:
1) make treatment decisions for NS;
2) decide where NS is to live; and
3) make contact decisions for NS.
47 As previously mentioned, a geriatrician has diagnosed NS with a progressive cognitive impairment being that of vascular dementia. CS's attitude to this diagnosis appears from the following exchange:
MANSVELD MR: … nearly a year ago – this was in response, I think, to the carer wage issue, or when you put the carer wage issue to the public trustee, you said:
Mum isn't demented. She has her moments, but understands what is going on. She just can't communicate properly.
CS: That's it.
MANSVELD MR: Is that still your view?
CS: It's still my view, yes. (T:34; 04.08.2015)
48 Further during the hearing the following discussion took place:
WALLACE MS: Have there been any decisions that you've needed to make at those appointments? How are, sort of, treatment decisions being managed?
CS: Well, basically, I have to interpret what mum says and – and then the doctor will decide what medication or, you know, whatever. The last one was actually the blood pressure tablets which she didn't need any more.
WALLACE MS: Okay. So you're taking basically the doctor's advice, or just following the doctor's advice, or is your mum communicating to you her wishes?
CS: She will communicate to me and I will communicate – excuse me – to the doctor.
WALLACE MS: So are you saying to us - I'm going to try and interpret what you're saying about your mum's level of capacity, and I think what you're saying to us is for simple decisions you feel that she can still make decisions, but more complicated - - -
CS: Yes. Open and – and closed are sort of, you know, fairly clear, yes.
WALLACE MS: So for simple medical decisions, she's in fact making the decisions, and you're interpreting her wishes to the doctor?
CS: Yes, basically.
WALLACE MS: But if it was a more complex medical decision, are you proposing to the Tribunal that you could make that decision as her next of kin?
CS: Well, you know, mum could make the decision but, you know, she would generally listen to me anyway. (T:42-43; 04.08.2015).
49 It is troubling to the Tribunal that CS appears to reject the diagnosis of dementia which has been made in respect of his mother, extending to a refusal to accept the medical evidence that his mother is no longer able and capable of making reasonable judgments in respect of treatment decisions. These views are likely, in our view, to prevent him from making an informed decision on his mother's behalf in relation to treatment, as they are indicative that he would either attempt to interpret her wishes, or simply follow medical advice. We do not think that someone who does not accept a serious diagnosis made in respect of a represented person would be able to properly exercise the functions of a treatment guardian.
50 In addition, given the high level of conflict which exists between CS and his sisters, he would not be able to satisfy the requirement of communicating with all significant family members. This was a concern raised at the hearing by the independent guardian of NS, and a concern which we share (T:50; 04.08.2015).
51 Turning to the accommodation decision making function, a guardian needs to be able to take an objective view and not come to any decision with a closed mind. As we have noted, CS appears to have the fixed view that his mother should continue to live at home with assistance. CS is hampered in making any accommodation decision by his refusal to accept that his mother has a progressive cognitive impairment diagnosis which will effect her level of care needs over time.
52 The following discussion took place at the hearing in respect of CS's views as to whether there would be a need for his mother to, at some point, be moved into a residential care facility:
MANSVELD MR: Do you see a point in the future where your mother may not be able to be cared for at home?
CS: Possibly, but dad was worse, and - - -
MANSVELD MR: Yes. Well, how would that point be reached? What would influence you to come to that sort of view?
CS: Well, if mum wasn't happy, if she wanted to go into care, or – or anything like that, then I'm quite happy to do what she wants. Her staying home is not what I want, but I've known mum all my life, and I know she wouldn't want to go into care anyway.
MANSVELD MR: No, but do you think a point might be reached in the future whereby her care needs are greater than what can be given at home?
CS: Well, I wouldn't consider at home that much different than in aged care.
MANSVELD MR: So you don't see that point being reached?
CS: Hopefully not, no. I would rather her get sick and then go into hospital.
MANSVELD MR: No. I'm asking you whether you think – no. I'm asking you whether you have a view that if her care needs increase, she won't be able to be looked after at home any more.
CS: Well, it depends on the care needs really.
MANSVELD MR: Yes. So her care needs might increase where the care can't be given at home.
CS: I – I don't understand that one. I'm quite capable of looking after mum. I know enough about, you know, the human body and medical stuff. I can call the doctor any time. If something is serious, an ambulance I can get, and the same thing would happen in aged care. They would have to get an ambulance. They haven't got people that can do that sort of stuff anyway.
MANSVELD MR: So you are saying that care in a - - -
CS: I would care for her as long as I could.
MANSVELD MR: Yes. Care in a nursing home is no different to care that can be given at home?
CS: As far as care goes. It's not the same though, obviously.
MANSVELD MR: No. But do - - -
CS: It's like there – they're structured.
MANSVELD MR: For lots of people there is a point reached where the care they would be given at home, the service provision and so on, is not enough to meet their needs, and they - - -
CS: Well - - -
MANSVELD MR: Just wait a minute. And they require therefore, to go into an aged care facility. Do you have a view about whether that point would be reached for your mother?
CS: Well, I would like to know what point you're talking about.
MANSVELD MR: Well, I'm asking you what you think that point might be.
CS: Well, are you saying that we can't care for mum because her ability to walk in time - - -
MANSVELD MR: Well, do you accept the possibility that that might happen?
CS: Yes, and I've got rails at home.
MANSVELD MR: Okay.
CS: There's a wheelchair. I can do all that sort of stuff.
MANSVELD MR: Yes. So - - -
CS: It won't be fun but I can do it. If she wants to stay at home I would suggest that, you know, once she's fed up she will want to go into care and – and go.
MANSVELD MR: But just put to one side whether your mother wishes or doesn't wish to stay home. Do you think there's a potential for there to come a time when her care needs are so great that your mother will need to go to a nursing home?
CS: The only time the care needs will be so great is if she was mentally incapable of understanding or recognising people and – and all that sort of stuff. Then it becomes difficult. Then obviously I would have to put her into care.
MANSVELD MR: Alright.
CS: So I'm you know, I'm – I'm quite happy to put mum in care if she wants to or it has to be, but not if she doesn't want to go.
(T: 36-38; 04.08.2015)
Is CS a suitable person to be appointed as administrator?
53 Section 68(3) of the GA Act prescribes three factors for us to take into account when considering the suitability of a proposed administrator. We will address each of those factors in turn below.
CS's compatibility with the current delegated guardian
54 As mentioned previously, appointed administrators and guardians must be able to work effectively together. Decisions made by an appointed guardian will often require funding by the appointed administrator.
55 Given the very fixed views held by CS, particularly in relation to the accommodation decision making function of the guardian, we do not believe that CS would be able to work effectively with the Public Advocate if reappointed. If the Public Advocate decided that NS needed to move into a residential aged care facility, we do not believe that CS, if he were appointed as plenary administrator, would facilitate that decision. In addition, we also hold concerns about a situation where the Public Advocate as limited guardian decides that additional services are required, or that CS's daughter was no longer able to meet the care needs of NS and other service providers were required. In these circumstances, it is unclear whether CS would facilitate those decisions if funds from the estate were required.
NS's views on who should be administrator
56 As previously mentioned, given the extreme limitations on the ability of NS to communicate and her absence at the review hearing, the Tribunal is unable to obtain NS's views on who should be appointed as her administrator.
CS's ability to perform the functions of a plenary administrator
57 It is clear to the Tribunal that the financial situation of NS is of concern. The trust manager from the Public Trustee informed the Tribunal at the hearing that the estate had a significant deficit and that the budget showed a yearly deficit of just over $20,000 (T:11; 04.08.2015). Despite this position of the estate, CS continued to maintain that his daughter ought to be paid full remuneration, in addition to the carer's pension which she was receiving, from the estate of NS. CS was questioned on this issue at the hearing:
MANSVELD MR: - - - so you were saying to me, then, that if you were the administrator, you would work out a carer wage, and that carer wage would become a debt to the estate, which would be paid when the house was sold?
CS: Precisely.
MANSVELD MR: So you would bring into place a carer wage?
CS: Yes.
MANSVELD MR: It just wouldn't be paid straight away?
CS: No.
MANSVELD MR: Alright.
CS: And, you know, I would see an accountant or – or whoever would decide exactly what that wage would be. I'm not going to, you know, go overboard and besides, the estate could certainly afford it, and I think for the work that they've done, besides a medal, they – they should get some sort of reimbursement. You know, they're missing out on, you know, the prime of their life. You know, they – they can't study or get a job to get ahead so – and I told them that if the – the estate didn't pay it, then I would – I would pay anyway (T:39; 04.08.2015).
58 In relation to the question as to whether JS should receive a carer's wage, the trust manager for the Public Trustee contended to the Tribunal the following:
MANSVELD MR: … [I]n your report there seems to be a fairly large gap between her yearly income and expenditure.
PAULUS, MR: That is right. There is a - - -
MANSVELD MR: In excess of 20 - - -
PAULUS, MR: … there's a significant deficit there which is obviously one of the reasons why we couldn't explore payment of a carer wage, as such, for – for A and JS.
MANSVELD MR: Because that – that budget shows a – a yearly deficit of just over $20,000.
PAULUS, MR: That's right. But we have - I - - -
MANSVELD MR: And that's still with – that's still the situation.
PAULUS, MR: It's current. So I anticipate that the cash that we hold will be exhausted in about three years' time.
MANSVELD MR: Okay. And, as you say, that's the reason you give – for not being able to entertain a – a carer – a carer wage if you like.
PAULUS, MR: That's exactly right. So if we were to entertain that idea - - -
MANSVELD MR: Yes.
PAULUS, MR: … then those funds would be exhausted within nine months, for example (T:11-12; 04.08.2015).
59 It is clear that, CS, being the father of JS, would have a conflict of interest if required to determine whether and how much remuneration JS should be paid.
60 A second possible conflict arises in relation to a caravan owned by NS. The caravan is located at a leased lot in Point Preston and is incurring ongoing costs. NS herself is unable to use the caravan, which is used from time to time by JS and her partner (T:11; 04.08.2015). Part of the role of the plenary administrator will be to determine how long it remains viable to continue paying the lease. Again, CS would be in position of conflict in making such a decision given that his daughter and her partner are deriving the only benefit from that asset.
61 For the above reasons we are not satisfied that CS would be able to effectively perform the functions of a plenary administrator.
Conclusion
62 Given our findings regarding CS's lack of suitability to be appointed as administrator and guardian and the fact that no other party proposed themselves to be considered for appointment, the Tribunal continues to hold the view that independent appointments are appropriate.
Issue 6: When should orders be reviewed?
63 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.
64 The medical evidence before the Tribunal is that NS has been diagnosed with a progressive condition which is permanent and which will deteriorate over time. In our view, review of the orders in five years is therefore appropriate.
Declaration and orders
65 In relation to matter GAA 562 of 2015, which relates to guardianship, the Tribunal makes the following order:
The Tribunal declares that the represented person:
(a) is incapable of looking after her own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to her person;
(c) is in need of oversight, care or control in the interests of her own health and safety; and
(d) is in need of a guardian;
and the Tribunal orders that:
1. The order is amended as follows:
The Public Advocate of Level 2, International House, 26 St George's 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 decide which services the represented person requires.
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.
3. This order is to be reviewed by 16 October 2020.
66 In relation to matter GAA 3755 of 2014, which relates to administration, the Tribunal makes the following 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 her estate; and
(b) is in need of an administrator of her estate;
and the Tribunal orders that:
1. The order is amended 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 Guardianship and Administration Act 1990 (WA).
2. The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
3. This order is to be reviewed by 16 October 2020.
- I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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