EH and CP - [2006] WASAT 1

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: EH and CP [2006] WASAT 1

MEMBER: MS D DEAN (MEMBER)

HEARD: 15 DECEMBER 2005

DELIVERED : 6 JANUARY 2006

FILE NO/S: GAA 1945 of 2005

BETWEEN: EH
Represented Person
AND
CP
Applicant

Catchwords:

Applications for appointment of a guardian and administrator - Functions of a guardian - Family conflict - Need for an independent administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 64, s 68

Result:

Public Trustee appointed plenary administrator for one year
Daughter appointed limited guardian for one year

Category: B

Representation:

Counsel:

Represented Person : Self-represented
Applicant: Self-represented

Solicitors:

Represented Person : Self-represented
Applicant: Self-represented

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal’s decision

In this case the applicant daughter sought the appointment of a guardian and an administrator for her elderly mother EH. The Tribunal was satisfied that EH was a person for whom orders could be made. The applicant proposed herself as both administrator and guardian. The Tribunal appointed the applicant limited guardian of her mother to make decisions in respect of medical matters and services for her mother. Because there was a family history of, and current, conflict within the family, the Tribunal decided to appoint an independent administrator. The Public Trustee was appointed for one year by which time the major decisions would be made in respect of the estate of EH and the decision could be reviewed to assess the appropriateness of an alternative appointment.

Background

EH is an 81 year old widow with two children, a son, KH living in New South Wales and a daughter, CP, who lives in a Western Australian country town.
CP made the applications for guardianship and administration and nominated herself as both guardian and administrator.
At the time the applications were made EH was living alone in her home, which she had been sharing with her husband until his death a few weeks before the hearing. She was receiving 24 hours care a week from a community care agency.

Legislation

The principles to be observed by the Tribunal when making determinations in relation to guardianship and administration applications are set out in s 4 of the Guardianship and Administration Act 1990 (WA) (the Act).
These principles are:
1.The primary concern of the Tribunal must be the best interests of the person in respect of whom an application is made.
2.Every person is presumed to be capable of making reasonable judgments in respect of his or her person or estate unless proven otherwise.
3.An order appointing a guardian or administrator should only be made if the needs of the person concerned cannot be met by other means that are less restrictive of their personal freedom of decision and action.
4.If an appointment is made, a plenary guardian or administrator should only be appointed if the needs of the person concerned cannot be met by a limited appointment.
5.The Tribunal should, as far as possible, ascertain the views and wishes of the person concerned.
Section 43 provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
"(1)(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,
the Tribunal may by order declare the person to be in need of a guardian."
Section 44 defines 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."
Section 64 provides that a person in respect of whom an application for administration has been made:
"(1)(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,
the Tribunal may by order declare the person to be in need of an administrator of his estate."
Section 68 identifies 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."

Information before the Tribunal

Medical and other reports

In her application the applicant informed the Tribunal that EH had "limited insight into her needs", "severe memory loss", was "totally resistant to family being involved with her business", was forgetting to take her daily medications and pay her bills and was "unaware when food has gone off and will put food for refrigeration in the cupboard". EH was receiving community care of approximately 24 hours a week but this was assessed as insufficient to ensure that she was adequately cared for.
Written information provided prior to the hearing by the co‑ordinator of the community care programme providing the in-home care for EH stated that EH was receiving 24 hours care per week and this was the maximum that could be provided with the funding package she was in receipt of.
The co‑ordinator wrote that EH was "resistive to assistance" from her brother and sister‑in‑law who visit a few times a week and "won't co‑operate with them at all". "She has limited insight into her abilities as a result of her dementia and doesn't believe that she isn't coping". Her memory is "significantly affected" and she is "incapable of safely administering her medications". She gets lost when out alone and sometimes does not recognise family members when they visit. "Support workers visit twice daily and clear her fridge out most days of expired/rotten food. She is extremely resistive to any interventions within her home" and "extremely resistive to the idea of entering residential care". "There is some doubt as to whether [EH] is showering as she wears the same clothing day after day".
She "forgets information within minutes and becomes very confused because of her dementia". She "isn't aware of the value of money and forgets to pay bills" or sometimes pays them twice. The co‑ordinator recommended the appointment of someone outside the family as administrator as "she won't let family assist in this matter".
EH's general practitioner provided the Tribunal with a written report in which he stated that EH has "moderate to severe dementia" which is "slowly progressive". He assessed her as incapable of managing her own financial affairs because of her "very limited recent memory". He was "not sure" of EH's capacity to make reasonable decisions in respect of her personal health care or living situation and was similarly unsure of her capacity to execute an enduring power of attorney.
The Tribunal received a copy of the Aged Care Assessment Team assessment conducted on 27 October 2005 with EH at her home. EH was assessed as having significant short‑term memory deficits, some long‑term memory problems and confusion. She was assessed as having "significant cognitive impairment and minimal insight into her deficits in this area". "Her confusion has also resulted in her mixing up her medications on a regular basis". She was assessed as requiring low‑level dementia specific residential care.
At the request of the Tribunal, the Public Advocate reviewed the file and consulted with the community care agency. The Public Advocate provided the Tribunal with a very brief written report stating that EH "is certainly at risk in the community" and suggested that there was a need for an increase in the community care provided until EH could move into suitable aged care accommodation. The Public Advocate identified the fact that "there is a hint of conflict between parties" but was unable to identify the cause of the conflict.

Information provided at the hearing

EH's brother, PC and sister EC, attended the hearing in person while CP, the daughter and applicant, attended by videoconference.
During the hearing the Tribunal telephoned the home of EH and spoke with the carer who advised that it would not be advisable to have EH attend by telephone as she would become "agitated and confused". The carer informed the Tribunal that there would be no benefit in having EH attend the hearing as she forgets information "after a minute". This was confirmed by all family members during the course of the hearing. The brother and sister said EH does not remember when they visit her. The applicant confirmed this "she doesn’t even remember from one minute to the next".
The son, KH, lives in New South Wales and, after being contacted by the Tribunal, attended the hearing by telephone.
The applicant informed the Tribunal that her mother was at risk of physical and financial abuse and cited examples of her mother being brought home by strangers after becoming confused and lost when out alone.
In addition, the applicant said that her mother refused to wear her medi‑alert bracelet putting her at medical risk. Further, her mother was not taking her medications as required and her personal and food hygiene put her health at additional risk.
The applicant stated that her mother receives both an Australian and an overseas pension. The mother was responsible for paying her own bills but was not doing so. She has several bank accounts which she accesses with a cheque book. Her brother checks to ensure that the bills are paid as the represented person forgets whether she has done so or not and then insists that she has.
The mother has access to her bank accounts and draws out large sums of money which she leaves or hides around her house. This was confirmed by her brother who said he had found large sums of money ranging from $450 to $3500 "hidden" in the house at different times. He said there could be more but he didn't feel comfortable searching for it in his sister's house particularly as "she gets really aggressive about us interfering".
During the hearing it became apparent that there was conflict and disagreement between some members of the family with the brother of EH expressing concerns about the quality of the applicant's relationship with her mother and stating that for this reason he did not feel she should be appointed guardian. He further stated that the daughter's distance from Perth as she resides in a country town several hundred kilometres from Perth, made her unsuitable as an administrator.
The applicant said she would not always be living in the country town and felt that her current residential status should not preclude her from taking on the role of administrator. The brother said that he felt that an administrator outside the family would be the most suitable option because of EH's concerns about keeping her financial affairs private from the family.
The son informed the Tribunal that he felt that his sister was best placed to make guardianship decisions for their mother as she had "made good decisions in the past".
He stated that he felt the Public Trustee would be the most appropriate administrator and he felt this would be the most acceptable outcome for his mother who is a "very suspicious" person who would be more likely to accept the Public Trustee than a family member managing her financial affairs.
The applicant said that if she were appointed administrator she would have her mother's accounts sent to her. She would sell her mother's home and ensure that this did not compromise her mother's eligibility for her Australian and overseas pensions. PC informed the Tribunal that the overseas pension might have been discontinued after the recent death of EH's husband.
The applicant confirmed what her brother and uncle had said about the suspicious nature of her mother but expressed concern that if the Public Trustee took over her mother's financial affairs "we won't even know what is going on". The Tribunal explained that, if the Public Trustee was appointed, close family members could liaise with them about the management of her mother's estate.
The applicant informed the Tribunal that she did not know the full details of her mother's estate other than the fact that she owned her home which was worth approximately $200 000 and had several bank accounts and fixed deposits, the details of which were known to her uncle, whom she said was not willing to disclose this information to her.
When questioned about this by the Tribunal, the brother said that he did not feel comfortable about disclosing these details as "I shouldn't have interfered in my sisters accounts at all". It transpired that the brother's knowledge about the bank details had had been obtained when his sister had asked for his help some months previously. She had expressed her regret at doing so the next day when she told him not to interfere.
The brother voiced his concerns about what he viewed as a lack of concern for her parents by the applicant in that she didn't attend family meetings with medical personnel even when she was living in Perth. The applicant explained that she did not need to attend the meetings in person as she maintained contact with medical personnel by telephone and was thereby kept informed of, and involved in, all medical decisions about her parents.
The Tribunal was informed by the son, that the family has a history of conflict in relation to the inheritance of money resulting in at least two family wills being contested. This was one of the reasons cited by family members, other than the applicant, as a reason to have an administrator who is independent of the family. The son said "I would hate to see any sort of recriminations or any sort of arguments about the way my sister handled the estate. I'm very, very sure that [the applicant] can handle the estate very well. I just don't want her to cop any blame from anyone, if there's any problem with it".
The brother said that he, his other sister and EH are the beneficiaries of a family will that is in probate. The beneficiaries need to agree on the distribution ratio they are prepared to accept from the will. The brother proposed that it would be in his sister's best interests to have someone independent of the family negotiating the outcome of this process on her behalf.
The applicant advised the Tribunal that she should be appointed administrator and guardian as she is the "next of kin" and has a close relationship with her mother. The son in New South Wales agreed that his sister is the person best placed to take on the role of guardian. This was contested by the sister and brother who felt that the daughter had not been as involved in her mother's life as they thought was necessary for a person who was to take on this role.
All parties agreed that the mother is in need of an administrator to manage her financial affairs and a guardian to make decisions in respect of her future accommodation and the services she should receive in the meantime. The differences of opinion were evident in the decision about who should be appointed guardian and administrator.
The son, the sister and brother all felt that a person independent of the family was best placed to take on the role of administrator and to make financial decisions in the best interests of the mother.
With respect to the application for guardianship the applicant said that if appointed she would arrange for her mother to enter a Catholic nursing home. She said that her mother was not yet on any waiting lists but the community care providers were currently looking into this for her. The son agreed that his mother needed to be in aged care accommodation. Both of the children agreed that their mother was at risk with regard to her personal safety if she continued to reside alone in the community.
It was agreed that while the mother continues to reside in her home she will require ongoing support services to ensure she is safely maintained. The current level of service she receives is not adequate to support her continuing to live safely at home alone and paid services may need to be sought. Given the mother's reluctance to accept that she requires the support of others the introduction of more care and support services may be difficult.

Findings and Reasons

In this case there are two applications for orders to be made, one for guardianship and one for administration. Although there are slightly different requirements to be satisfied in making these orders both depend on evidence in relation to the proposed represented person's capacity to make reasonable decisions in relation to lifestyle and financial issues.
With regard to EH's capacity to manage her own affairs, the Tribunal considered the evidence provided in the written reports and at the hearing. The Tribunal was satisfied from the written evidence provided by the GP, the community care co-ordinator and the applicant that EH lacked the capacity to make reasonable decisions in respect of her financial affairs.
This was further confirmed by attendees at the hearing who informed the Tribunal that EH's capacity to manage her finances was severely compromised as evidenced by the unpaid bills which she insisted had been paid, the large amounts of money found around her house and her lack of insight into her own need for support in this regard.
The Tribunal found the evidence provided by the GP, that he was "unsure" of EH's capacity to make reasonable decisions in respect of her personal health care and living situation, less convincing than the evidence provided by the community care co-ordinator, whose staff attend to EH twice a day and therefore have a current and intimate knowledge of her capacity to manage her day‑to‑day health care and lifestyle decisions. The Tribunal was further persuaded by family members, particularly EH's brother who visits her on a regular basis and also has intimate knowledge of his sister's decision making in respect of her day-to-day affairs, that EH does not have the capacity to make reasonable decisions in respect of her personal health care and living situation.
All the written evidence and the evidence provided at the hearing was consistent in assessing EH as not having the capacity to make reasonable decisions in respect of any aspect of her estate.
Based on the above the Tribunal finds that the requirements, as outlined in s 43 and s 64 of the Act, are satisfied in respect of capacity. The Tribunal finds that EH lacks the capacity to make reasonable decisions in respect of her finances or matters relating to her person and is therefore a person for whom guardianship and administration orders can be made.

After addressing the issue of capacity, the Tribunal must then decide if there is a need for an order and, if so, if the needs of the person can be met by other means less restrictive of their freedom of decision and action than the making of an order. If an order is to be made, the Tribunal must decide if a limited order rather than a plenary order would be sufficient. In addition the Tribunal, as far as possible, must take into account the views and wishes of the proposed represented person.
In this case with respect to administration there is no less restrictive alternative to the making of an order as EH is unlikely to have the capacity to execute an enduring power of attorney and further, from all accounts, because of her lack of insight into her own limitations and resistance to the intervention of family, even if she had the capacity she would be unlikely to be willing to do so.
The Tribunal must make a decision in EH's best interests, which in the opinion of the Tribunal, is for the appointment of an administrator independent of the family. From evidence provided by the son and EH's siblings it would appear that if an administrator is to be appointed it would be EH's preference that this be someone outside her family whose intervention and assistance she has strongly resisted in the past. It is therefore considered more likely that she would accept the services of an independent administrator than a person from within her own family.
Given the need to make decisions about the disposal of the house and effects after EH's anticipated move into aged care accommodation, the need to locate and manage her bank accounts and to advocate on her behalf with regard to the family will, it is the view of the Tribunal that a plenary order is necessary. It may be that after the completion of these initial tasks a family member can take over the management of EH's estate.
In respect of the guardianship application there are only two relevant areas of decision making required and these are in respect of the move to appropriate aged care accommodation for EH and the identification and facilitation of appropriate support services while EH remains in her own home.
It is the Tribunal's view that, given her nature and the nature of her disability, it is unlikely that EH would agree to anyone taking over decision‑making for any aspect of her life.
In taking into account, where possible, the person's desires and wishes, the Tribunal must be guided by her closest family members who, in this case, are her children, both of whom agree that it is in EH's best interests that the daughter takes on the role of guardian. The issues of services and accommodation are likely to be resolved within a year after which time there may no longer be a need for a guardianship order.

Decision and Order

The orders of the Tribunal are:

Administration

1.The Public Trustee be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.The order is to be reviewed by 15 December 2006.

Guardianship

1.CP 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 determine the services to which the represented person should have access.

2.This order is to be reviewed by 15 December 2006

I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER