DMA
[2005] WASAT 21
•10 MARCH 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: DMA [2005] WASAT 21
MEMBER: DR G HAMILTON (SENIOR SESSIONAL MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
MS R CARROLL (SENIOR SESSIONAL MEMBER)
HEARD: 16 DECEMBER 2004
DELIVERED : 10 MARCH 2005
FILE NO/S: GU 265 of 2004
BETWEEN: DMA
Applicant
Catchwords:
Guardianship Accommodation decisions Need Family disagreement on placement
Legislation:
Guardianship and Administration Board 1990, (WA) s 40(1), s 43, s 44(1), s 44(2), s 44(5), s 119
Result:
NM appointed Limited Guardian for the functions: to decide where the represented person is to live, whether permanently or temporarily; to decide with whom the represented person is to live
Category: B
Representation:
Counsel:
Applicant: Self Represented
Solicitors:
Applicant:
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
DR G HAMILTON (SENIOR SESSIONAL MEMBER), MS J STANTON (SENIOR SESSIONAL MEMBER), MS R CARROLL (SENIOR SESSIONAL MEMBER):
REASONS FOR DECISION
Background
The applicant is the son in law of the proposed represented person. In making the application he sought for his wife, NM, a daughter of the proposed represented person to be the guardian for her mother. The application was lodged on the 22 October 2004. DMA previously lived with her husband at Meath Care and was transferred to McDougall Park Nursing Home on 30 September 2004. She had been assessed in January 2004 as needing high care accommodation which Meath Care did not provide. McDougall Park Nursing home is one kilometre from Meath Care. DMA's husband, RHA was also the subject of a guardianship application which was heard at the same time. The reason for the application was concern that CC may seek to remove DMA from her present accommodation if she could find alternative accommodation to house both husband and wife.
DMA has two daughters NM and CC from her first marriage. They have different views about where the couple should reside. NM believes the current arrangement is appropriate given the different care needs of RHA and DMA and CC believes they should both be moved to a different facility, Rowethorpe, where their different care levels could be accommodated on the same site, making visiting easier.
Both sisters wanted the best for RHA and DMA but had different views on how this could be achieved. CC had lodged a complaint with the Department of Aged Care and had contacted Advocare because she was concerned about the separation and because in her view visiting was not sufficiently regular. At the time of the hearing external agencies were no longer involved. NM was proposing herself as guardian and CC was seeking the appointment of the Public Advocate. NM was the donee of an Enduring Power of Attorney executed by DMA in 1993.
Family members opted to sit in separate rooms with NM and her family in one room and CC and a friend in a second room. The hearing utilised a conference telephone to connect the two rooms. DMA did not attend.
Capacity
Before an Order can be made under s 43 of the Guardianship and Administration Act 1990 (WA) ("the Act") the Board must be satisfied that a person in respect of whom an application for a guardianship order is made:
(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 judgements in respect to 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
Under s 44(1) and s 44(2) an appointed guardian should be someone who, in the opinion of the Board:
(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 guardian to that person
The Board 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 an 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.
In addition under s 44(5)
(5)Except where he is appointed to act jointly with another person or other persons, the Board shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
Medical and health care reports were received from Dr Shane Morley GP, Geraldine Riordan Director of Nursing, McDougall Park Nursing Home, Dr Ian Puddy a consultant at Royal Perth Hospital and Dr Donaldson a consultant at Bentley Health Service. The reports indicate DMA has severe dementia and is unable to make decisions on her own behalf. Geraldine Riordan indicated further that she was not sure that DMA recognised visitors. The Public Advocate noted following a visit that DMA was unable to give any meaningful comment. Family members did not dispute the medical findings.
The Board was satisfied that a guardian could be appointed for DMA.
Need
The application arose because NM and her family were concerned that CC wanted to move RHA and DMA to a new facility which could accommodate both high care and low care residents. Family members thus had different views about where DMA should reside and with whom. NM was listed as next of kin and as the eldest daughter she had been involved in making decisions of a medical nature for her mother, she was prepared to take advice and was listed as next of kin with McDougall Park.
It was clear to the Board at the hearing that family members had very different views as to where DMA should live. DMA was able to have weekly visits from her husband and once accommodation issues were agreed these visits could be more often. The Board was of the view that a guardian was needed to make decisions in respect to where and with whom DMA should reside.
Evidence
Family Members
NM indicated she had been making decisions for her mother for a long time. She was the donee of an Enduring Power of Attorney and had arranged the move to Mc Dougall Park when it became evident that DMA needed to move because she needed a higher level of support. She had taken advice from professional staff. NM indicated she had always told her sister about admissions to hospital and about the move to the nursing home and would be prepared to let CC know of any changes in DMA's situation. If DMA was required to move she indicated she would be prepared to talk to CC about it. She had no problems with CC visiting whenever she wanted to do so. KM, husband of NM quoted from a letter from CC indicating she did not want to be contacted. However they had made contact when RHA and DMA moved from their home. DM and KH, children of NM supported their mother as Guardian indicating that their parents had been heavily involved with RHA and DMA for a long time and that they responded to professional advice in seeking the best care available. NM indicated she was prepared to talk with CC prior to making major decisions if she was Guardian for her mother.
CC indicated she was always told of decisions after they were made, she did not dispute that her sister has looked after DMA well but indicated she was prepared to help and wanted to be involved and informed before things happen rather than afterwards. She acknowledged that she and her sister while both wanting the best for their mother had different views on how this should be achieved. She acknowledged past personal problems and tensions between the families. CC proposed the Public Advocate be appointed to make decisions for DMA.
Public Advocate
The Public Advocate noted that DMA was unable to make meaningful comment about her wishes. She noted that an Enduring Power of Attorney had been signed in favour of NM as donee and noted that she had received information about NM and her family having extensive involvement with DMA over many years.
She noted NM was identified as next of kin at the nursing home and that she could consent under s 119 to medical treatment. The area that a guardian was needed was in relation to accommodation decisions as the two daughters of DMA had different views as to where and with whom she should reside.
The Public Advocate's report indicated that DMA needed high care and that the move to McDougall Park followed an ACAT assessment and reports of RHA becoming aggressive towards his wife at Meath Care. It was reported that NM had consulted with the care manager and Chief Executive Officer at Meath Care about whether DMA should be moved to a facility that could accommodate both her and her husband and were advised against this in the best interests of DMA. While the conflict between the parties was noted, the recommended appointment was for NM to be limited guardian with authority to make decisions about where DMA shall reside and with whom. She indicated that if the Public Advocate was appointed it was unlikely she would go against the advice of professional staff in relation to accommodation decisions. She also noted that the Public Advocate should not be appointed if there was a family member who was suitable and willing to act.
The Board noted comments by JH from the Office of the Public Advocate in relation to consultation opportunities offered through the nursing home and hostel processes and meetings but did not direct that these be part of the Order.
Order of the Board
The Board ordered that NM be appointed limited guardian with the functions:
1.to decide where the represented person is to live, whether permanently or temporarily; and
2.to decide with whom the represented person is to live;
The Order was to be reviewed in 5 years from the date of hearing.
I CERTIFY that this and the preceding six pages comprise the reasons for decision of the members who heard this matter.
__________________________
Ms Jo Stanton
Senior Sessional Member (SAT)
(Presiding Member of the Board at the hearing on 16 December 2004).
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