DB and DB - [2007] WASAT 205

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: DB & DB [2007] WASAT 205

MEMBER: MR M ALLEN (SENIOR MEMBER)

HEARD: 10 JULY 2007

DELIVERED : 10 JULY 2007

FILE NO/S: GAA 955 of 2007
GAA 956 of 2007

BETWEEN:
DB
Proposed Represented Person
DB
Applicant

Catchwords:

Guardianship and administration - Proposed represented person is suffering from cerebral dementia and is unable to make reasonable judgments in respect of matters relating to his estate and matters relating to his person, is incapable of looking after his own health and safety, and is in need of oversight, care and control in the interests of his own health and safety - Proposed represented person unwilling to have a family member act as administrator and guardian in relation to accommodation decisions - Consideration of whether two persons can be appointed as limited guardians with different functions - Appointment of limited guardians and plenary administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2), s 43, s 43(1), s 43(1)(b), s 44, s 44(5), s 64, s 64(1)(a), s 68, s 68(3), s 84, s 90(1), s 119

Result:

Limited guardians and a plenary administrator are appointed

Category: B

Representation:

Counsel:

Proposed Represented Person : N/A
Applicant: N/A

Solicitors:

Proposed Represented Person : N/A
Applicant: N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications for guardianship and administration orders were made by the Director of Care of a nursing home in respect of a 79‑year‑old man. The Tribunal was satisfied that, by reason of vascular dementia secondary to multiple cerebral vascular accidents, the man was unable to make reasonable judgments in respect of matters relating to his person and all of his estate, was incapable of looking after his own health and safety, and was in need of oversight, care and control in the interests of his own health and safety. The Tribunal was also satisfied that the man needed an administrator to manage his financial affairs and a guardian to make decisions in relation to accommodation, services, and healthcare and medical treatment. Accordingly, the Tribunal was satisfied that the man was in need of a guardian and an administrator.
The man did not want his brother, who was the only family member prepared to undertake the role of administrator, to be involved in the management of his financial affairs. The Tribunal, accordingly, appointed the Public Trustee as the man's plenary administrator.
Similarly, the man did not want his brother to be involved in decision-making for him in relation to accommodation and services, but did not object to his brother being involved in making decisions regarding healthcare and medical treatment. The Tribunal was satisfied that it has the power to appoint two different guardians with different limited powers and ordered that the Public Advocate be appointed as limited guardian with functions in relation to accommodation and services, and the man's brother be appointed as limited guardian with functions in relation to healthcare and medical treatment.

Background

Mr DB is a 79‑year‑old man in respect of whom Ms DB (who is the Director of Care at the nursing home in which Mr DB resides) made application for guardianship and administration orders. In these reasons, because Ms DB's initials are identical to Mr DB's, I will refer to Ms DB as "the applicant" and Mr DB as "Mr DB". The applications were heard on 10 July 2007 and on that day the Tribunal made orders that:
a)The Public Trustee be appointed plenary administrator of Mr DB's estate;
b)Mr EB (who is Mr DB's brother) be appointed limited guardian of Mr DB with the function of consenting to any medical treatment or healthcare of Mr DB;
c)The Public Advocate be appointed limited guardian of Mr DB with the functions of making decisions about where and with whom Mr DB is to live, and to determine the services to which Mr DB should have access. The Public Advocate was authorised to delegate her functions to an officer or employee of her office.
d)All of the above orders are to be reviewed by 10 July 2012.
The Tribunal subsequently received a request from the Public Advocate for a statement of written reasons for the decisions made and this statement of reasons is published accordingly.
The Tribunal hearing on 10 July 2007 was attended by the applicant, Mr DB, Ms B (who is Mr DB's aunt), Mr EB (who is Mr DB's brother), Mrs RB (who is Mr EB's wife) and Ms Keene, an officer of the Office of the Public Advocate.

Statutory framework and issues to be determined

Section 43(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) provides that the Tribunal may appoint a guardian for a person if it is satisfied that the person concerned:
"(a)has attained the age of 18 years;
(b)is -
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian … "
Section 64 of the GA Act provides that an administration order can be made in respect of a person if the Tribunal is satisfied that the person:
"a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
b)is in need of an administrator of his estate … "
A "mental disability" is defined in s 3 of the GA Act to include "an intellectual disability, a psychiatric condition, an acquired brain injury and dementia".
Section 4(2) of the GA Act sets out principles that must be observed by the Tribunal when dealing with proceedings under the GA Act. In summary, those principles are:
a)The primary concern shall be the best interests of the person in respect of whom the proceedings relate;
b)Every person is presumed to be capable of looking after his own health and safety, managing his own affairs, and making reasonable judgments in respect of matters relating to his person and his estate until the contrary is proven;
c)Orders should not be made if the needs of the person could be met by other means less restrictive of the person's freedom of decision and action;
d)A plenary guardian should not be appointed if the appointment of a limited guardian would be sufficient to meet the needs of the person concerned;
e)An order appointing a limited guardian or an administrator shall be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action;
f)In considering any matter the Tribunal shall as far as possible seek to ascertain the views and issues of the person concerned as expressed, or as gathered from the person's previous actions.

Consideration

"Capacity" - s 43(1)(b) and s 64(1)(a)

It was not in dispute at the hearing that Mr DB had been brought to hospital in Perth from a country town following several strokes and had subsequently resided in a nursing home. In a report to the Tribunal dated 11 May 2007, Dr IJ Waite, who has known Mr DB as his general practitioner for about 1.5 years, said that Mr DB suffered from probable vascular dementia with a poor prognosis and that he lacked insight into his condition and was unrealistic in regards to his own needs and abilities. Dr Waite considered that Mr DB was incapable of making reasonable decisions about his personal healthcare, living situation and financial affairs.
A report was also provided to the Tribunal from Dr G Atartis, a psycho‑geriatrician, dated 5 June 2007. Dr Atartis had seen Mr DB in March 2007 for assessment and diagnosed vascular dementia as a result of multiple cerebral vascular accidents. He noted that Mr DB minimised his current physical disabilities and current care needs, that he had no insight about his physical and cognitive deficits, and his judgement was impaired. Dr Atartis expressed the opinion that Mr DB was incapable of making reasonable decisions about personal health care or living situation and was incapable of executing a valid enduring power of attorney. Dr Atartis was unsure whether Mr DB was capable of making reasonable judgments about his financial affairs. In a report to Dr Waite in March 2007, Dr Atartis said that he had attempted to do a cognitive assessment of Mr DB but Mr DB had not cooperated with some aspects of the test. He thought that Mr DB was quite unrealistic with respect to his needs and current abilities, and that he required nursing home placement and the appointment of a guardian and possibly an administrator.
At the hearing, Mr DB said that he had trouble remembering things (such as he could not remember seeing Dr Atartis) and he had trouble making plans. On the other hand, he said that he would have a "good go" at looking after himself in future, believing that he could find a place to rent.
The applicant informed the Tribunal that Mr DB required general assistance with all his daily needs, needing prompting and reminding and a high level of care. Because of his memory impairment, Mr DB had increasing difficulty in processing information. It was recognised that Mr DB did not like living at the nursing home and he had suffered a significant injury on one occasion when attempting to leave the nursing home.
On the evidence referred to above I am satisfied that Mr DB suffers from a mental disability for the purposes of the GA Act, namely vascular dementia secondary to cerebral vascular accidents. I am also satisfied that, as a result of that condition, Mr DB has difficulties understanding and processing information and does not appreciate the severity of his cognitive decline. As a consequence Mr DB has no understanding of his needs and his own limitations in being able to meet them.
I am satisfied that, for the purposes of s 64 of the GA Act, Mr DB is unable to make reasonable judgments in respect of matters relating to all of his estate by reason of his mental disability.
For the purposes of s 43 of the GA Act relating to guardianship orders, it is not necessary to establish a causal connection between any mental disability and the three estates of affairs referred to in s 43(1)(b). Nevertheless, I am satisfied that Mr DB is incapable of looking after his own health and safety, is unable to make reasonable judgements in respect of matters relating to his person, and is in need of oversight, care and control in the interests of his own health and safety – and that those incapacities are a consequence of his physical and mental disabilities referred to above.
It follows from the above that Mr DB is a person in respect of whom a guardianship order and an administration order could be made.

Need for a guardian and/or administrator

The next issue to be addressed is whether or not Mr DB has a need for a guardian and/or an administrator.
Mr DB's financial position is relatively straightforward. He has a bank account with a considerable amount of money in it, but which he has not operated for several years (he said since the time of his admission to hospital). Mr DB's only income is an old‑age pension of approximately $500 per fortnight, which is paid directly into a trust account operated by the nursing home. His accommodation charges and medication costs are deducted directly by the nursing home from that account and the balance is available to Mr DB to use for other minor expenses (such as cigarettes). Mr DB said he was not happy with that arrangement and he believed that the nursing home was overcharging him for accommodation and medication and were not giving him information about his money.
Although his finances are not complicated, in my opinion there is a need for a person to take control of them and there is a need for an administrator with plenary powers that cannot be met by other informal means. The informal trust account operated by the nursing home is not a desirable long‑term option and the bank account needs to be managed to Mr DB's advantage.
In relation to whether there is a need for a guardian, it was apparent at the hearing, as mentioned above, that Mr DB was not happy living at the nursing home and that he wished to return to the country town. It was also apparent that Mr DB had made no effort to obtain alternative accommodation and was unable to do so. I was advised by Ms Keene that enquiries indicated that a placement at a nursing home in the country town may be available in the relatively near future and decisions would have to be made about whether to have a trial of Mr DB at those facilities.
If Mr DB were to be relocated to another nursing home then, as Dr Atartis mentioned in his report, Mr DB may benefit from a "befriender" service who could take him out of his nursing home on outings as a way of trying to provide him with some sense of freedom and outdoors.
Because of Mr DB's various medical conditions there will be a need in future for decisions to be made about medical treatment and, accordingly, there is a need for a person to give consent for such treatment. The less formal procedure provided by s 119 of the GA Act would not seem to be feasible in the current circumstances. Mr DB's nearest relative is his eldest sister and he said at the hearing that he did not wish to have anything to do with her – and had not had any contact with her for some time. I am satisfied that Mr DB is in need of a guardian for the purposes of making decisions about accommodation and services, and for the purpose of consenting to medical treatment.

Who should be appointed as guardian and administrator?

The next issue that must be addressed is who should be appointed as guardian and administrator for Mr DB.
Section 44 of the GA Act provides that the Tribunal must consider that, to be appointed as a guardian, a person will act in the best interests of the person concerned, will not be in a position where his interests will or may conflict with the interests of the person concerned, and is otherwise suitable as a guardian of the person concerned. In determining suitability the Tribunal is to take into account as far as possible the desirability of preserving existing family relationships, the compatibility of the guardian with the person concerned and any administrator, the wishes of the person concerned, and whether the person to be appointed will be able to perform the functions vested in him.
In the case of an administrator, s 68 requires the Tribunal to be of the opinion that the proposed appointee will act in the interests of the person concerned and is otherwise suitable. Similar considerations as those mentioned for determining suitability for a guardian are set out in s 68(3).
In addition, and as noted above, one of the guiding principles set out in s 4 of the GA Act to be observed by the Tribunal is to seek to ascertain the views and wishes of the person concerned in relation to any matter to be determined.
The only member of Mr DB's family who is possibly available to act as an administrator of Mr DB's estate is his brother, Mr EB. Mr DB said at the hearing that he did not want Mr EB to be involved in looking after his financial affairs, and Mr EB expressed the view that it may be preferable for somebody other than a family member to act in that role. Although I consider that Mr EB would be suitable to perform the role of administrator, in the light of his reluctance to do so and the wishes of Mr DB I consider that the Public Trustee should be appointed as Mr DB's administrator.
In relation to who should be appointed guardian for him, Mr DB said that he did not want Mr EB to make accommodation decisions for him. Ms Keene submitted that a family member may be able to undertake the role of locating accommodation, but Mr EB expressed the view that he did not want to fall out with his brother about accommodation matters and supported the idea of the Public Advocate being appointed in relation to accommodation and services.
Mr DB did not have the same objection to his brother in relation to the making of medical treatment decisions, and Mr EB was willing to undertake that role. Ms Keene informed the Tribunal that the Public Advocate would not normally accept a joint guardianship role but, in the circumstances, an appropriate way to proceed might be to appoint the Public Advocate for accommodation and services functions with Mr EB being appointed as guardian for healthcare and medical treatment decisions.
The GA Act, by its terms, provides for the appointment of "a guardian" (with plenary or limited functions), joint guardians (with plenary or limited functions), and for one person to be an alternate guardian for another guardian. The GA Act does not explicitly provide for the appointment of one person to be a guardian with limited functions and a second person to also be appointed with limited, but different, functions. I am aware that the Tribunal has on occasions made such appointments, and I consider those appointments to be entirely consistent with the overriding objective of the Act to provide appropriate assistance in decision-making in the best interests of the person concerned, but in ways that are least restrictive of the person's freedoms and which pay the greatest regard possible to the person's wishes. The situation may well arise where there is a need for a guardian with various functions to perform but where a person's wishes are that different people should perform different functions. The various functions may require different skills. Such a situation may arise at the time of the initial appointment of a guardian or it may arise at later times as the represented person's needs change. I note that on a review of a guardianship order under Pt 7 of the GA Act, s 90(1) authorises the Tribunal to appoint a new or "additional" guardian. That provision is, in my view, consistent with the notion that more than one person can be appointed as guardians with limited and different functions. It would be, I suggest, an unsatisfactory outcome if the GA Act only permitted one person (or two persons jointly) to perform all the functions of a guardian. Obviously, care must be taken to ensure that the functions conferred on two or more limited guardians were not inconsistent or in conflict.
I am satisfied that it is possible to appoint two persons as limited guardians of a person with differing functions.
Section 44(5) of the GA Act prevents the Tribunal appointing the Public Advocate as a guardian unless there is no other person who is suitable and willing to act. Although Mr EB would be otherwise suitable and able to perform the functions of a guardian in relation to accommodation and services, he is unwilling to act in that role and Mr DB does not wish him to take on that role. In the circumstances I am satisfied that it is appropriate to appoint the Public Advocate as Mr DB's limited guardian with powers to make decisions in relation to accommodation and access to services. Mr EB should be appointed as limited guardian with powers in relation to healthcare and medical treatment.
Section 84 of the GA Act requires the Tribunal to specify a period (not exceeding five years from the date of the order) within which guardianship and administration orders shall be reviewed. Although it is possible or even probable that Mr DB's living circumstances will change if suitable accommodation can be found for him in the country town from which he has come, the timing of that is by no means clear. In the circumstances I consider it appropriate to specify five years as the review period. Any party can, of course, request an earlier review if circumstances change.

I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M ALLEN, SENIOR MEMBER