EDN
[2016] WASAT 34
•23 JULY 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: EDN [2016] WASAT 34
MEMBER: MS H LESLIE (MEMBER)
HEARD: 23 JULY 2015
DELIVERED : 23 JULY 2015
PUBLISHED : 6 APRIL 2016
FILE NO/S: GAA 2202 of 2015
GAA 2203 of 2015
BETWEEN: EDN
Represented Person
Catchwords:
Guardianship and administration Extreme family conflict Independent administrator and guardian
Legislation:
Guardianship and Administration Act 1990 (WA)
Result:
Public Trustee appointed plenary administrator
Public Advocate granted limited guardianship for five years with authority for decisions about accommodation, treatment decisions, services and contact
Summary of Tribunal's decision:
The matter involved competing claims for appointment as administrator and guardian of an elderly woman with an acknowledged serious dementia. There was dispute in a divided family as to whether the woman required nursing home care or should be allowed to return to her home of 50 years to be cared for by a granddaughter. The granddaughter who had lived with the woman for a long period, who had been the main carer for the woman before her hospitalisation and who had informally assisted with finances, sought sole appointment as administrator and guardian. Other family members who had sought their own appointment moved to a position where they requested independent appointments. There was significant longstanding and unresolved personal animosity and conflict between the two sides of the family. Cross accusations of neglect and financial abuse of the woman existed, as well as allegations between the two sides of verbal abuse and assaultive behaviour by each other.
In the circumstances, the Tribunal appointed an independent plenary administrator and an independent limited guardian to determine the accommodation question, the provision of services, medical treatment decision and arrangements regarding contact between the woman and her various family members.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Application
The Tribunal had before it applications for guardianship and administration orders from DO, the daughter of the proposed represented person (EDN). It also had before it a document that might be regarded as a 'crossapplication' from MG, a granddaughter of EDN. That application also seeks guardianship and administration orders.
At the time of the applications being lodged, EDN was in hospital. The applications were made in the context of an apparent dispute within the wider family as to whether or not EDN should return to her home from hospital, or should go into nursing home care.
DO and MG each sought for themselves to be appointed to the roles of guardian and administrator. MG sought sole appointment. DO sought appointment jointly with her brother, BN.
On 23 July 2015, the Tribunal heard the matter and made orders appointing the Public Trustee as administrator and the Public Advocate as limited guardian. At the time, an oral summary of reasons for decision was provided, with the Tribunal to publish written reasons for decision thereafter. These are the written reasons for decision in relation to these orders.
Background
EDN is an 84yearold woman, who, prior to being hospitalised, was living in a Homeswest house with one of her daughters, MDG. EDN had nine children, seven of whom are living. Five of these participated in the hearing, being DO, supported by her brothers BN and PN, and sister DN. Another daughter MDG, who is MG's mother, attended the hearing. Reference was made during the hearing to another son, TN, who, it is said, from time to time resided with EDN. He did not participate in the hearing. Nor did the seventh child, P, to whom no reference was made. The hearing was also attended by DO's two daughters, EO and SO, who are granddaughters of EDN.
The family members essentially fell into two camps: MG and MDG on the one side, and DO and all other named family members on the other. The conflict between the members of the two camps was readily apparent, and is longstanding, although the basis for this was unclear.
For the last two years, or thereabouts, MDG has lived with EDN in her Homeswest home. EDN has also been supported by MG who lives elsewhere but who is EDN's main carer and claims the carer's allowance. Her position is that she visits daily and supports EDN with shopping, medication, meals, appointments and social outings, and that at all times, between herself and MDG, along with the occasional visits by TN, EDN always has had someone with her supporting her. Prior to the last two years, it is uncontested that MG also resided in the home with EDN. MG claims that for approximately the 10 years leading up to that point, she did so, and supported EDN. She referred to EDN as having played a significant role in supporting her in her younger years and saw her support of EDN during the last 12 years as a means of repaying that earlier kindness and support.
The degree of support provided by MG during these years, and particularly in more recent times, is the subject of dispute. DO and the family members supporting her, allege that on the occasions when they visited, it was evident that EDN was not being cared for properly, that she was often alone and unsupported and that her medication was not supervised and administered properly, particularly in the lead up to some eye surgery she required.
In the report of the hospital social worker provided to the Tribunal on 15 July 2015, it is clear that DO had earlier raised these concerns, plus concerns that MDG is often under the influence of alcohol, that she often yells at EDN, that EDN is the subject of financial abuse, that her bed is constantly cluttered and she is unable to sleep in it. There are allegations of drug use and contact with 'random people with unsavoury interests' and that MG and MDG 'mimic' EDN, laugh at her and degrade her.
MG denies all of these allegations and claims that she visits daily and assists EDN with her activities of daily living, that she has appropriately managed her finances and her medication, that the household bills are split between EDN and MDG, save for the rent which is paid by EDN, consistent with her longtime refusal to take rent contributions from family members staying with her.
The applicant's position
The application by DO seeks the appointment of herself and BN as administrators and guardians. At the hearing, they both made it clear that they in fact sought independent appointments in view of the conflict between the various family members. DO maintained her claims that up until quite recently, various members of the family participated in the support of EDN and that it was not just MD. She confirmed that she has 'never seen [EDN] so happy' as she is now in the transition facility. DO claimed that EDN was 'at peace'. She, DO, did not believe that EDN was expressing a wish to return to her previous home and that it was in her interest to remain in supported accommodation where she will get proper care. DO continued to maintain that EDN had not been receiving proper care prior to being hospitalised and would not receive proper care if she returned home, even if, as was proposed, MD moved back into the home on a fulltime basis to provide that care.
MD's position
The contrary position put by MD was that EDN did wish to return to her home, that she had deteriorated since moving into the transition facility and that she would be able to be managed properly and would be happier if she was allowed to return home into the care of MG. MG confirmed that it was the proposal of herself and MDG that MDG would move out of EDN's home and that MG would move back in and would be the fulltime carer for EDN.
The submission made on MG's behalf by her counsel was that she had lived with EDN for approximately eight years, moving out only two years previously, that EDN sees MG as a daughter, that EDN has lived in that property for more than 50 years and that she sees it as her home, that MG has been the person to support and assist EDN for all of that time and that the continuance of this arrangement would be in the best interests of EDN.
MG stated that the allegations made by DO were untrue, that other members of the family rarely visited and were simply not in a position to say what was occurring in the property. She expressed the view that the claims that were made were made out of jealousy because of the position occupied by herself and her mother in EDN's life. She confirmed that after she moved out of the property, MDG had taken the principal role of caring for EDN but that approximately a year ago, she had resumed that role, although not living at the property. MG insisted that contact with other members of the family could still be facilitated despite the conflicts that exist and that she was well able to make arrangements to leave the property to facilitate visits by other family members and that such arrangements could easily be made using electronic contact to avoid the need for personal contact which might be conflictual.
Other family members
In response to this, BN insisted that if his mother returned home, she would not get proper 24/7 care. He insisted that TN in fact also continues to reside at the property and that he is involved to a more substantial extent in EDN's care than MG was admitting and that TN had also told him that he was in fact meeting many of the bills. MG disputes this. BN agreed that the family had worked around the conflict for many years, but that in recent times things had worsened, in his view, to the point where if EDN returned home it would be essentially impossible for the family members, other than MG and MDG, to have a meaningful relationship with her. Reference was made to altercations between family members, to threats and to previous assaults.
AO spoke of the occasions when she would visit EDN, which she described as being perhaps every couple of months. She claimed that there was never anybody at the house supporting EDN other than DO. She spoke about her grandmother's distressed demeanour on occasions. CO claimed that on the occasion when EDN was hospitalised, it appeared to her (that is, to CO) that MDG was oblivious to EDN's deteriorated condition. DN spoke briefly about family members having been attacked at the house and her having been locked out to prevent contact with EDN.
Capacity evidence
There is little dispute as to EDN's medical condition. Both applicants state that she suffers from cognitive impairment and is unable to make decisions for herself and needs a guardian and an administrator appointed.
A report to the Tribunal from Dr R, EDN's general practitioner, confirmed that EDN suffered an impairment in her mental function, particularly in relation to shortterm memory. Dr R expressed the view that EDN had lost capacity to manage her financial affairs, but she was unsure about EDN's capacity to make decisions in other areas. She noted in her report that EDN was distressed by the conflict between family members and that she 'appears to provide information to keep the attending family member happy i.e. not angry or upset with her'.
A further medical report was provided by Dr G at the hospital in which EDN was an inpatient. In that report, Dr G expressed the view that EDN suffered from dementia, which is a progressive illness and that she had no capacity to make decisions about her medical care, her finances or her lifestyle. Dr G noted that EDN tends to be happy to defer decisions to others, and, as such, she is vulnerable to being taken advantage of. He noted that on a mini mental state examination, EDN scored only 12/30. This is indicative of severe dementia.
In a report prepared by CD, an inpatient social worker at the hospital, EDN's circumstances of admission were summarised, as was her domestic and family situation. CD's report confirms that EDN had been assessed by a consultant, Dr K, as not having capacity to make lifestyle, medical or financial decisions. The report from CD noted the extreme conflict between various family members, particularly between the two applicants, the conflict being such that a family meeting to discuss discharge planning could not be arranged. The report indicates that this conflict at times manifested itself during family visiting at the hospital. The social worker was provided with conflicting information by family members as to how EDN has been cared for in the past.
CD confirmed that EDN has a diagnosis of dementia and presents as 'pleasantly confused on the ward', and that she has regular difficulty with her shortterm memory, has no insight into her cognitive deficits and how they impact on her functional ability, provides vague answers and can forget the questions asked. CD noted conflicting advice from the two applicants as to EDN's condition in hospital relative to how she had presented prior to hospitalisation. The report noted that EDN required full assistance on the ward with all her activities of daily living and had been approved for transfer to transition care pending a determination on guardianship and administration. CD recommended the appointments of an independent guardian and an administrator due to ongoing family conflict.
EDN was indeed transferred to transition care from hospital, and after that transfer was cared for by Dr C, a general practitioner. Dr C provided a report to the Tribunal in which he confirmed the conclusions drawn about EDN's lack of capacity at the hospital and then he himself provided the view that EDN was incapable of making decisions in relation to her financial affairs, her living situation or her personal healthcare and that she could not execute a power of attorney. He also expressed the view that '[t]he hearing would distress and confuse her. The family have huge conflict and this would be detrimental to her well-being'.
The Tribunal also had the benefit of the Aged Care Client Record (Record) that had been completed for EDN. It notes, as well as the cognitive impairment and an inability to make decisions, the occurrence of a stroke in 2012. The Record confirms that EDN was admitted to hospital by DO because of concerns about a 'general decline in [EDN's] health'.
The Tribunal also had a report from JA, the social worker at the transition care facility to which EDN was moved. That report refers to longstanding conflict between the two applicants and it expresses the view that an independent guardian and administrator should be appointed because of the unresolved and ongoing family conflict. The report summarises EDN's presentation referring to her as 'pleasantly confused, disorientated to time and place and unaware of her cognitive deficits'.
The position of the Public Advocate
The Public Advocate was asked to investigate EDN by the Tribunal. The Public Advocate's investigator, BT, in her report to the Tribunal dated 17 July 2015, expressed the view that there is clear evidence of EDN's need for a legally appointed guardian and a legally appointed administrator and that neither of the proposals put forward by the various sides of the family were appropriate as, in her view, neither party would be able to effectively manage the roles, to act objectively in decisionmaking, to consult with other relevant parties and to put aside personal animosity of each other in the making of decisions.
In view of the entrenched conflict between the various family members, the view of BT was that there was a need for a guardian to make decisions in relation to where and with whom EDN was to live so that the accommodation issue could be resolved; that there was a need for an authority over the issue of contact so that sensible arrangements could be put in place to allow EDN to have contact with all of her wider family; and that the authority should extend to services to allow the other decisionmaker to assess and determine whatever support EDN might require in whatever accommodation setting she resides in.
In the report, BT expressed the following:
The issue of deciding on EDN's health care and treatment has also been one of contention within the family with a claim and counterclaim of various areas of perceived neglect or inadequate support and decisions. There is claim and counterclaim as to who has been assisting EDN the most to access her medical appointments and claim and counterclaim as to who has organised and assisted with medication being purchased and administered. Ultimately, the [Public Advocate's] representative considers this arrangement to not work in EDN's best interests and that while the GA Act allows for family members to be medical decisionmakers without being appointed guardians, this is not a viable less restrictive mechanism in this instance. Thus the [Public Advocate's] representative considers that the authority of making treatment and health care decisions in EDN's best interests needs to be included in a guardianship order.
As to who is to be appointed, BT, having weighed the comments of all parties, expressed the view that an independent appointment was better, particularly given the difficulty in ascertaining the reliability of the various allegations made by the various parties concerning the care, or lack of care of EDN to this point.
Findings capacity
The Tribunal finds that EDN is a person for whom both guardianship and administration orders can be made and that she meets the criteria under the legislation for the making of both orders. This is not substantially in dispute and the professional evidence is clear and unambiguous.
Need for independent guardianship
In relation to the question of need for a guardian, there is a clear dispute as to the future arrangements to be made for EDN's care. Family members hold entrenched positions that reflect longheld animosities which still exist and, whilst it is the case that the existence of conflict on its own does not necessarily require the appointment of an independent guardian, in this case, it is the view of the Tribunal that the conflict and mistrust is so entrenched that it is necessary for there to be an independent appointment to assess all options for EDN and then make an independent judgment in EDN's best interests that is not clouded by past history and longheld conflict.
The Tribunal accepts the comments made by BT that, overall, all parties are concerned about EDN's best interests and individually exhibit great care and concern for her future. However, the ongoing and deepseated conflict between the various family members adversely affects their respective abilities to see situations in an objective light. The decisionmaking by an appointed family member is likely to occur with limited objectivity, and with that conflict and illwill impacting upon that objectivity.
The appointment of a family member additionally will have inherent difficulties communication is extremely strained and most family members cannot be even civil to each other, even in front of EDN; there are claims and counterclaims of alleged abusive and assaultive behaviour. If a family member was appointed he or she would have great difficulty in consulting, as they ought, with all relevant family members in making the best decisions for EDN. It is acknowledged that MG indicated that she would act consultatively, but given her reported fear of parties and other alleged abusive incidents, in the Tribunal's view, it highly unlikely that this could be adequately achieved.
The Tribunal accepts the proposition advanced by BT that neither proposed party could easily or adequately take on board the other proposed party's views.
Further, preserving what is left of the family relationships for the benefit of EDN, or at least taking all steps that can be taken to minimise further conflict, is ultimately in EDN's best interests, particularly given her reported distress about family disharmony.
The Tribunal accepts that one family member being appointed over another will entrench the rivalry and illfeeling and will likely inflame a highly contentious situation and will not work in EDN's best interests. This is reflected in the comments of DO's husband, T, when he talked about it not being 'fair' for one side to be appointed over the other. Such an appointment would allow one party to consider that they have 'won' in a situation of perceived competition.
The Tribunal notes in BT's report, reference to EDN's statement that she would prefer her son BN to be appointed. It is noted that it is in fact BN's proposal that an independent appointment occur.
The Tribunal finds that the appointment of an independent guardian is in EDN's best interests.
Need for independent administrator
In relation to the need for an administrator, MG claims to have appropriately overseen EDN's finances in the time that she has been assisting her and particularly in the last 12 months.
There are a number of questions that have been raised in the Public Advocate's investigation, including the paying of all of the rent payment by EDN even when the property was being jointly occupied by MDG. Additionally, it appears that MDG has had uncontrolled use of EDN's bankcard and there are a number of unexplained cash withdrawals where it appears that funds may have been used for purposes other than EDN's expenses. MG claims that if she were appointed, she would rectify both of these arrangements by taking control of the credit card and because of the change in occupation of the property, that she in fact would be making a contribution to rent, even though her mother may not have been. It is legitimate to ask the question whether, in overseeing her grandmother's affairs in an informal way (as she claims to have done), MG should have done more previously to rectify these matters. It is of course also alleged by the other 'side' in the family that other financial abuse has taken place. MG claims to have full records of all of the bill payments made by her. Those documents have not been independently assessed, although it is true that MG has attended at the hearing with the paperwork and on the assumption that the documents would be considered in detail. Without a full investigation and audit of the financial records, it is not possible for the Tribunal to make findings as to the truth or otherwise of the claims of either 'side'. However, in the view of the Tribunal, for the same reasons as are articulated above with respect to the need for an independent guardian, the Tribunal's view is that the significant conflict and the fractured family dynamics demand an independent appointment in this instance.
Scope of orders
The Tribunal accepts the recommendations of BT as to the scope and functions of the orders that are required. All aspects of EDN's finances require management. The Tribunal finds there is no less restrictive alternative to a plenary order.
Lifestyle decisions, accommodation, medical treatment, the selection of appropriate services and supports and the oversight of contact arrangements with family, are the areas which the Tribunal finds require decision by a guardian.
Orders
1.The Public Trustee is appointed as plenary administrator.
2.The Public Advocate is appointed as limited guardian, to make decisions in relation to the areas of accommodation, medical care and treatment, contact and services.
3.Both orders will be reviewed in five years.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS H LESLIE, MEMBER
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