EEM
[2006] WASAT 94
•11 APRIL 2006
EEM [2006] WASAT 94
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 94 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2097/2005 | 31 JANUARY 2006 | |
| Coram: | MR E LEIPOLDT (SENIOR SESSIONAL MEMBER) | 11/04/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | 1) Guardianship order made appointing Dr CA and Dr GM as joint limited guardians with the function to give consent to medical treatment 2) Administration order made appointing AJM as plenary administrator of the represented person's estate | ||
| B | |||
| PDF Version |
| Parties: | EEM CA |
Catchwords: | Guardianship – Administration – Consent to medical treatment – Accommodation – Plenary administrator – Joint limited guardians |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43, s 43(1), s 43(1)(b), s 64, s 119 |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : EEM [2006] WASAT 94 MEMBER : MR E LEIPOLDT (SENIOR SESSIONAL MEMBER) HEARD : 31 JANUARY 2006 DELIVERED : 11 APRIL 2006 FILE NO/S : GAA 2097 of 2005
- GAA 2197 of 2005
- Represented Person
CA
Applicant
Catchwords:
Guardianship – Administration – Consent to medical treatment – Accommodation – Plenary administrator – Joint limited guardians
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 43(1), s 43(1)(b), s 64, s 119
Result:
1) Guardianship order made appointing Dr CA and Dr GM as joint limited guardians with the function to give consent to medical treatment
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2) Administration order made appointing AJM as plenary administrator of the represented person's estate
Category: B
Representation:
Counsel:
Represented Person : N/A
Applicant : N/A
Solicitors:
Represented Person : N/A
Applicant : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 EEM is a 90-year-old man with cognitive impairment. He is currently well accommodated in a high-care facility. He has stated he does not wish to leave there. A friend of the proposed represented person lodged a guardianship application with support of some members of the family after learning that his wife attempted to move him to a facility closer to her. The applicant alleged that while the wife had authority under s 119 of the Guardianship and Administration Act1990 (WA) to give consent to medical treatment, another person should be appointed as guardian for this purpose, as the wife had inadequate communication with the care facility. The applicant alleged also, that the wife was not properly managing her husband's money and that someone else should be appointed as administrator. The Tribunal appointed the applicant and the represented person's son as limited joint guardians with the power to give consent to medical treatment. It appointed the wife as plenary administrator of his estate.
Introduction
2 EEM has been in supported care for some years and had been moved to a high care facility approximately one year ago. He has been married twice. There is a long-standing conflict between his current wife, AJM, and others in the family. Communication between these parties has been difficult, or non-existent, for some years.
3 Under these conditions, some family members became indirectly aware of EEM's wife's attempt to move EEM to a facility closer to her. They do not believe this to be in his best interest. The family questions AJM's commitment to EEM's financial and broader wellbeing. The applicant, Dr CA, a family friend, seeks for her to be appointed as guardian for purpose of making decisions about where EEM should live. AJM opposes this application. She had withdrawn her application to move her husband, as she knew he wishes to remain where he is and accepts this. The Public Advocate's position is that there is no accommodation issue to be decided by a guardian and therefore that no guardian should be appointed for this reason.
4 EEM's wife is the registered next of kin at EEM's facility, pursuant to s 119 of the Guardianship and Administration Act 1990 (WA) (the Act). The applicant does not think that this is in EEM's best interest, given her, and the family's, concerns about EEM's wife's availability to give such
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- consent and about her commitment to her husband's welfare. EEM's wife and EEM's step-daughter oppose this application. The Public Advocate proposes a continuation of the status quo under a trial period, with involvement of the wider family.
5 The application for administration is brought out of the applicant's, and some of the family's, concern that AJM is not acting in EEM's best financial interests. Allegedly some items are not being provided to EEM by his wife, who is a signatory to EEM's bank account. AJM and EEM's step-daughter oppose this application. The applicant seeks to be appointed as administrator. The Public Advocate supports AJM's appointment as administrator.
6 The Tribunal must decide whether EEM is incapable of making his own reasonable decisions with regard to accommodation and consent to medical treatment, whether he is in need of a guardian, if so who that guardian should be and under which terms. Similarly, with regard to administration, the Tribunal must decide whether EEM is incapable of making his own reasonable decisions about his estate, whether he is in need of an administrator, if so, who that administrator should be and under which terms. It must also consider whether there are less restrictive alternatives to any guardianship or administration order.
Present at this hearing were
7 AJM, wife of the proposed represented person EEM, attending by telephone; LM, step-daughter of EEM; Dr GM, son, attending by telephone link from the USA; BH, eldest daughter of EEM; DEF, sister of EEM; KF, brother in law of EEM; HL, social worker, care facility where EEM resides; AB, care manager; Dr CA, friend and the applicant; GC, representative Public Advocate; PJA, son in law; TP, grand-daughter of EEM. EEM's attendance had been excused upon advice from Dr R, his treating medical practitioner.
Background
Capacity
8 The Tribunal must consider the issue of capacity as a precursor to the consideration of application for orders relating to an adult person.
9 Section 4 of the Act states:
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- "(1) In dealing with proceedings commenced under this Act, the Tribunal shall observe the principles set out in subsection (2).
(2) ...
(b) Every person shall be presumed to be capable of –
(i) looking after his own health and safety;
(ii) making reasonable judgments in respect of matters relating to his person;
(iii) managing his own affairs; and
(iv) making reasonable judgments in respect of matters relating to his estate,
Evidence
11 In making its judgment on capacity, the Tribunal relies on the following evidence.
12 Dr R is a general practitioner who submitted two medical reports. The first is dated 30 November 2005, the second 20 January 2006. At the time of lodging his first report, Dr R had known EEM for three months and saw him last on the date of this report. By the time of writing his second report, Dr R had known EEM for five months and had last seen him a month prior to the date of his report.
13 In his first report, Dr R indicates that EEM has a frontal lobe impairment of a progressive nature and is incapable of making reasonable judgments about his personal health care, about his living situation and about his financial affairs. He also deems him incapable of executing an enduring power of attorney.
14 In his second report, Dr R diagnoses dementia of a progressive nature and indicates that he is not sure about EEM's capacity to make reasonable decisions with regard to his personal health care and living situation, is incapable of making reasonable decisions about his financial
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- affairs, and cannot execute an enduring power of attorney. He notes that EEM is happy at his present supported accommodation and wishes to remain there. EEM has "built relationships with other residents and has generally improved clinically".
15 Dr R attached a letter to him from Dr C, a consultant geriatrician, dated 10 January 2006. He regarded EEM's cognitive profile as one "more in keeping with pathology of the temporal-parietal lobes". Furthermore, he regards EEM's low mini mental scores as "indicative of significant cognitive impairment and this automatically means that we should doubt his ability to make decisions for himself". He also notes that the applicant, Dr CA, reported to him that EEM had been unable to recall her explanations of the nature of the application despite several attempts. Dr C concludes that EEM "is not capable of making personal or financial decisions independently, although he can give opinions, which should hold some weight".
16 HL, a senior social worker with the care facility where EEM resides, submitted two reports, one dated 23 December 2005, the other 23 January 2006.
17 HL reports that EEM was admitted with a diagnosis of frontal lobe impairment secondary to alcohol. In her first report, she indicates that EEM is incapable of making reasonable decisions about his finances or about "his own safety and wellbeing". In her second report, she says that EEM has "significant cognitive impairment … which affects his memory …"
18 The Public Advocate's representative, GC, states in his report, dated 27 January 2006, and again at the hearing, that EEM is not capable for purposes of both the guardianship and administration applications.
19 There is no dispute among any parties with the conclusion that EEM is not capable with regard to lifestyle decision-making pertaining to guardianship, nor with regard to his inability to make reasonable decisions about the management of his finances.
Findings
20 Upon reviewing this evidence, the Tribunal is satisfied that s 43(1)(b) and s 64 of the Act are met and that EEM is someone for whom guardianship and administration orders could be made.
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- Need
21 The Tribunal can only make an order if the needs of the person in respect of whom an application is made could not, in the opinion of the Tribunal be met by other means less restrictive of the person's freedom of decision and action.
22 The applicant, Dr CA, seeks a joint limited guardianship order, with EEM's son, GM, giving the guardians the power to decide about suitable accommodation for EEM. Dr CA also seeks the appointment of herself as administrator of EEM's estate.
Evidence
23 With respect to the application for guardianship, this application has been made as a result of a dispute over where EEM should reside. EEM has signed a declaration, stating that he does not wish to be moved. The applicant and GM believed that EEM's wife, AJM, wanted to move him to another facility.
24 There is a background of long-standing conflict within the family involving EEM's children from his first marriage and AJM. Reference to this conflict was made in written submissions from GM, Dr CA, TP and HL and was apparent during the course of the hearing.
25 AJM has lodged a written statement with the Tribunal, dated 23 January 2006, containing assurances that her application to the other nursing home had been "cancelled." Further AJM stated, "He is happy where he is at the … nursing home. His happiness comes first and he could not receive better care. I just wanted him closer to me as I don't drive any more and would like to share more quality time together". During the hearing AJM repeated this intention not to move her husband.
26 A further issue under guardianship was identified as to who should give consent to any medical treatment for EEM. Currently, pursuant to s 119 of the Act, EEM's wife, AJM is the next of kin to be consulted about any such treatment. AJM is prepared to continue in this role.
27 No immediate medical issues that required consent are apparent at present, but EEM has a long list of ailments and to Dr C, EEM had appeared a "wasted unwell looking citizen."
28 There is conflicting information as to the ease of communication between AJM, being the person currently authorised (through s 119) to give consent to medical treatment and the facility's care manager. Of
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- course, such communication is important in being able to give informed consent.
29 HL and AB gave evidence that communication with AJM had been difficult. Letters sent to AJM by HL had not been responded to, and invitations for AJM to meet with them had not been taken up. AJM had, to the date of the hearing, not met with the nursing home to discuss her husband's requirements despite a number of attempts to have AJM do so. HL also reported that it had been "difficult for the care manager (at the previous residential facility under the same care group) to make contact with" AJM, although she "always responded as soon as she received a letter and, if asked, would telephone at a nominated time and date." AJM had not responded to the previous accommodation's care manager's letter informing her that EEM needed to move to a high care facility. In 2004 - 2005, EEM had been hospitalised several times. AJM had been informed that EEM's condition was so bad that he was expected to die and been requested to visit, she had not. HL expressed concern at the history of inadequate past communication with AJM, including in recent times. She also reported that in her case, contact with Dr GM, who resides in the USA, and with Dr CA, had been frequent and satisfactory.
30 Dr GM, who resides in the USA, reports that he has daily email contact with Dr CA. He is in Australia about three to four weeks annually. Dr CA confirms this regularity of contact.
31 HL, in her report states that Dr GM has been fulfilling the next of kin role for some time. In EEM's previous place of residence, HL alleged AJM visited her husband three or four times a year. He had been placed there because he was difficult to support at home, including for reasons of high alcohol intake and domestic violence.
32 Dr GM believed that his father has been abused, neglected and abandoned by AJM.
33 Grand-daughter, TP, also alleges insufficient contact by AJM in the past with EEM when he was in hospital. She had been getting calls from both EEM's present and former supported residences to give consent to occupational therapy assessments as AJM could not be reached. She supports guardianship be given to Dr GM and Dr CA.
34 BH, EEM's daughter, stated that she was not contacted by AJM when her father was hospitalised and found out indirectly.
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35 AJM and her daughter, LM, disputed that she had received certain messages from the nursing home. AJM had been ill, been hospitalised twice, she lived at some distance from EEM's place of residence, she had limited means of transport and had therefore been unable to visit as often as she liked.
36 Apart from AJM and LM, none of the parties present believe that AJM should have the authority to give consent to medical treatment.
37 GC, from the Office of the Public Advocate, acknowledges the conflicting information on AJM's availability and communication, and is unsure whether these communication problems were currently present. He suggests a trial period. This proposal involves AJM acting on her authority under s 119 with the facility manager also liaising with Dr CA. Dr CA would consult with the family, meaning the children from EEM's first marriage. If there were a dispute between the views on a medical treatment consent decision made by AJM and the views of the rest of the family, it would first be attempted to be resolved by the facility manager. If that failed, an application for guardianship to determine who should give consent could be made. AJM agrees to this proposal.
38 With respect to the application for administration, the applicant believes that EEM's money is not being managed in his best interests by his wife, AJM. Dr CA proposes she be appointed as administrator of EEM's estate.
39 In her application she states that EEM had nominated AJM to look after his money but that AJM had shown no interest in EEM's wellbeing. He was no longer receiving pocket money from AJM. She was concerned AJM wanted "to obtain all his money" and was not consulting with family members.
40 EEM's only income is his Veterans pension and has no assets. AJM pays accommodation fees and pocket money and the remainder is transferred to a bank account in EEM's name, under her control as bank signatory. Its current balance is $6625.
41 Dr CA alleges that whereas EEM's accommodation fees are being paid by AJM, any additional needs are being met by family and Dr CA, who are paying for his pocket money.
42 AB and HL gave evidence that EEM's fees were being paid on time and that fortnightly, $50 was sent to the facility's manager for additional needs. This has not been sufficient for purchase of clothing and AB
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- understands that this need had been met by the previous accommodation facility instead. Family had also paid for clothing.
43 However, presently, the current facility held $950, transferred from the former facility. AB stated that this money had not been used because she was unsure as to whether this money was indeed EEM's.
44 Other than AJM and LM, the applicant, BH, Dr GM and other family present, allege that money for outings, clothing and several items such as an electric wheelchair, heater and television, have had to be provided by them because no further funds had been forthcoming. There has been a history of limited contact about such matters by Dr GM with AJM and none from BH.
45 AJM and LM dispute that insufficient clothing had been provided. She had kept receipts for all purchases. AJM also said that she has not had any additional requests for clothing from any party.
46 AJM is willing to be appointed administrator. This is opposed by the remaining family, apart from LM, who supports AJM's appointment.
47 GC believes that AJM should continue to administer her husband's finances. Whereas there were conflicting stories from different parties, it appears that she has been meeting his financial needs.
Findings
48 Upon review of the evidence before it, the Tribunal finds that there is a need to appoint a limited guardian for EEM, with the power to consent to medical treatment.
49 EEM is a person of frail health and even though currently no treatment is proposed it is likely that this could occur in the future, given EEM's medical conditions and age. His wife, AJM, is currently authorised, through s 119, to give such consent. However, the Tribunal heard conflicting evidence as to AJM's availability to communicate issues of importance to EEM between herself and the last two care managers of EEM's accommodation. Different parties had been acting as next of kin.
50 The Tribunal accepts that there is a long-standing family conflict underlying the application. It also accepts that AJM has had transport difficulties and is unwell, but it gives weight to reports from HL and AB of inadequate communication on the part of AJM, as well as to that of other family members present at the hearing. It is important that any person giving consent is able to be contacted relatively easily.
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51 The concern of the Tribunal is the best interests of EEM and under these circumstances it judges that those interests are currently best met by appointing Dr CA and Dr GM as joint limited guardians with the powers to consent to medical treatment for a period of one year. It is anticipated by the Tribunal that Dr CA and Dr GM will liaise with and inform EEM's wife of any decisions they may have to make as this may help improving relations, which are important to EEM's wellbeing.
52 As far as the question of appointing a guardian for purpose of deciding where EEM should live is concerned, the Tribunal believes that there are currently no plans by AJM, or anyone else, to move EEM, who has stated that he is happy where he is and does not wish to be moved. Therefore there is no need to make such an appointment.
53 Upon review of the evidence before it with regard to the administration application, the Tribunal finds that there is a need to appoint a plenary administrator for EEM.
54 There are conflicting stories about whether AJM has adequately provided for EEM's financial needs. However, the Tribunal accepts that his accommodation fees and pocket money have been paid on a regular basis, and clothing has also been provided by AJM. As for other items, the Tribunal is hopeful that perhaps with improved family communication about EEM's needs, any such needs can be covered in future. Doing so is clearly in his best interests.
55 There is an issue about AJM's alleged inadequate communication with the facility where EEM resides. However, this does not affect the regular payments that have always been made on time.
56 On balance, the Tribunal finds that AJM is a suitable person to be appointed as an administrator of her husband's financial affairs. There is a need to appoint her as such, as the current informal arrangements may lack legality, in the face of EEM's incapacity. Also, there is some $6000 held in EEM's account. Given the conflicting accounts of AJM's provision of EEM's needs, the administrator's accountability to the Public Trustee serves as a safeguard to EEM's needs being met.
57 Given the many conflicting stories about either application, the Tribunal finds that it is appropriate to review both appointments in one year's time.
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Wishes of the represented person
58 GC, in his report, states that EEM has expressed to him his wish for his wife to look after his finances. This expression of a wish is his opinion which is coloured by his assessments of being unable to make reasonable judgments in certain areas in his life. However, the Tribunal must take EEM's wishes into account in its judgment.
Conclusion
59 The Tribunal accepts that EEM is not able to make reasonable decisions in respect to lifestyle issues pertaining to guardianship, nor can he make them about his finances.
60 With respect to guardianship, there are no determinations to be made about where EEM should live as no-one wants to move EEM and he is well cared for and happy where he is.
61 Given that AJM has a history of communication difficulties with care providers, which can be attributed to her largely, it is in EEM's best interest for another party, who is also committed to his welfare, be authorised to give consent to any medical treatment.
62 Some of these communication difficulties at least may well have reasonable causes, such as AJM's illness or transport difficulties. It is important however, that any requests for consent to medical treatment are addressed in a timely manner. In part, this is why the Tribunal rejects the Public Advocate's proposal for a trial period where AJM continues her consent authority under s 119 and Dr CA liaises with other family. In the face of the present levels of conflict in the family, this would not be an immediately workable, less restrictive alternative in the important area of EEM's health.
63 With respect to administration, it is appropriate to follow EEM's wishes for his wife to be involved with his finances. All parties are now aware of what moneys EEM has and that there is no need for him to go without any usual comforts. If necessary, any unmet needs identified by any family member could be communicated to AJM via the care manager. AJM is accountable for her administration to the Public Trustee and the Tribunal will review the satisfactory operation of this, and the guardianship appointment, in one year's time.
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Orders
64 With respect to the application for guardianship, the Tribunal orders that:
1) The Tribunal is satisfied that the represented person under s 43(1) of the Act:
"(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; …"
2) Dr CA and Dr GM be appointed limited guardian of the represented person with the following functions:
(i) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person.
3) This order be reviewed by 31 March 2007.
65 In all these circumstances the Tribunal determined also that there was a need to appoint an administrator for EEM and made the following orders.
1) AJM be 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) This order is to be reviewed by 31 March 2007.
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- I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR E LEIPOLDT, SENIOR SESSIONAL MEMBER
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