EP
[2016] WASAT 117
•27 SEPTEMBER 2016
EP [2016] WASAT 117
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 117 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2180/2016 | 21 JULY 2016 | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 27/09/16 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Public Advocate appointed as guardian Public Trustee appointed as administrator | ||
| B | |||
| PDF Version |
| Parties: | EP |
Catchwords: | Guardianship and administration Mental illness Acquired brain injury High care needs Carers stress National Disability Insurance Scheme Accommodation needs Conflict of interest Beneficial ownership of property Pooling of income Reporting to Public Trustee |
Legislation: | Guardian and Administration Act 1990 (WA), s 3, s 4, s 40, s 43, s 44, s 44(1)(b), s 45, s 64, s 68, s 68(3)(a), s 69, s 84, s 86, s 90, s 97(1)(c), Div 3 Pt 5 |
Case References: | Nil |
Summary | EP, a 45yearold woman, was diagnosed with a mental illness and an acquired brain injury. She lived with her mother and two daughters. The property in which they lived was jointly owned by EP and her mother. There was a mortgage on the property.,The mother and one of the daughters had been appointed the administrators of EP's estate in 2014.,EP's living conditions were very difficult and their deficiency had come to the attention of agencies that were providing her with support.,One such agency raised a concern about the circumstances in which EP lived to the Public Advocate who commenced an investigation.,Subsequent to the investigation, the Public Advocate made an application for the making of a guardianship order and an application for review of the administration order pursuant to the Guardianship and Administration Act 1990. ,Evidence before the Tribunal showed that EP was highly dependent on others for her activities of daily living and that at times her mother and daughters were overwhelmed from carer stress.,The question was raised as to whether EP could continue to live in her home or should be placed in institutional care because of her high needs. ,EP's mother and daughters were in an invidious position. They were concerned how EP would cope in institutional care, given unfortunate events that had occurred in the past. In addition, what had developed over time was reliance by the mother and daughters on EP being cared for at home because it was also their home and they depended on EP's income to help meet the property and household costs.,The Tribunal found that EP's mother and daughters were in a conflicted position in the decisionmaking about EP's future accommodation and care needs. ,The Tribunal decided to appoint the Public Advocate as EP's guardian.,The Tribunal also decided to appoint the Public Trustee as administrator of EP's estate in place of the previous order appointing her mother and a daughter.,There were a number of matters of concern regarding the management of EP's estate.,The first of these was the financial interdependence of EP with the financial affairs of her mother and daughters and their incompatible interests should EP need to go into institutional care. The beneficial ownership of the property was another matter, as was the practice of pooling the limited household income without a clear demarcation as to the use of EP's income. The difficulty the administrators had had in producing a set of accounts to the standard required by the Public Trustee was also a concern. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : EP [2016] WASAT 117 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : 21 JULY 2016 DELIVERED : 27 SEPTEMBER 2016 FILE NO/S : GAA 2180 of 2016
- GAA 2209 of 2016
- Represented Person
Catchwords:
Guardianship and administration - Mental illness - Acquired brain injury - High care needs - Carers stress - National Disability Insurance Scheme - Accommodation needs - Conflict of interest - Beneficial ownership of property - Pooling of income - Reporting to Public Trustee
Legislation:
Guardian and Administration Act 1990 (WA), s 3, s 4, s 40, s 43, s 44, s 44(1)(b), s 45, s 64, s 68, s 68(3)(a), s 69, s 84, s 86, s 90, s 97(1)(c), Div 3 Pt 5
Result:
Public Advocate appointed as guardian
Public Trustee appointed as administrator
Summary of Tribunal's decision:
EP, a 45yearold woman, was diagnosed with a mental illness and an acquired brain injury. She lived with her mother and two daughters. The property in which they lived was jointly owned by EP and her mother. There was a mortgage on the property.
The mother and one of the daughters had been appointed the administrators of EP's estate in 2014.
EP's living conditions were very difficult and their deficiency had come to the attention of agencies that were providing her with support.
One such agency raised a concern about the circumstances in which EP lived to the Public Advocate who commenced an investigation.
Subsequent to the investigation, the Public Advocate made an application for the making of a guardianship order and an application for review of the administration order pursuant to the Guardianship and Administration Act 1990.
Evidence before the Tribunal showed that EP was highly dependent on others for her activities of daily living and that at times her mother and daughters were overwhelmed from carer stress.
The question was raised as to whether EP could continue to live in her home or should be placed in institutional care because of her high needs.
EP's mother and daughters were in an invidious position. They were concerned how EP would cope in institutional care, given unfortunate events that had occurred in the past. In addition, what had developed over time was reliance by the mother and daughters on EP being cared for at home because it was also their home and they depended on EP's income to help meet the property and household costs.
The Tribunal found that EP's mother and daughters were in a conflicted position in the decisionmaking about EP's future accommodation and care needs.
The Tribunal decided to appoint the Public Advocate as EP's guardian.
The Tribunal also decided to appoint the Public Trustee as administrator of EP's estate in place of the previous order appointing her mother and a daughter.
There were a number of matters of concern regarding the management of EP's estate.
The first of these was the financial interdependence of EP with the financial affairs of her mother and daughters and their incompatible interests should EP need to go into institutional care. The beneficial ownership of the property was another matter, as was the practice of pooling the limited household income without a clear demarcation as to the use of EP's income. The difficulty the administrators had had in producing a set of accounts to the standard required by the Public Trustee was also a concern.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Introduction
1 EP is a 45yearold woman diagnosed with an acquired brain injury and a mental illness. She lives with her mother, FP, and her daughters, SW and NW (also referred to in these reasons as her family).
2 Care for EP is provided by way of funding through the National Disability Insurance Scheme (NDIS) and by her mother and daughters.
3 On 23 April 2014, FP and SW were appointed joint plenary administrators of EP's estate under the Guardianship and Administration Act 1990 (WA) (GA Act). The order was set to be reviewed in five years: s 84 of the GA Act.
4 In May 2016, the Public Advocate sought review of the administration order (s 86 of the GA Act) and made an application for the appointment of a guardian for EP (applications): s 40 of the GA Act.
5 The applications were heard on 21 July 2016. The hearing was attended by EP, FP, SW, NW, a representative from the Public Advocate (Public Advocate) and a representative of the Public Trustee (Public Trustee).
6 The decision was reserved.
The relevant legislation
7 The primary concern of the Tribunal is the best interests of EP: s 4(2) of the GA Act.
8 In considering the applications, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of EP as expressed, in whatever manner, at the time, or as gathered from EP's previous actions: s 4(7) of the GA Act.
9 EP is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
10 Under s 43(1)(b) of the GA Act, the Tribunal cannot consider appointing a guardian for EP unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.
11 Under s 64(1)(a) of the GA Act, the Tribunal cannot consider appointing an administrator of the estate of EP unless it is satisfied on the evidence that, by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
12 '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.
13 If a finding of incapacity is made in respect to EP, the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of EP can be met in a manner less restrictive of her freedom of decision and action, then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
14 If the Tribunal decides that EP is in need of guardianship and administration orders, it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
15 As to the authority given to a guardian, if a limited order is sufficient to meet the needs of EP, then a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on EP: s 4(5) and s 4(6) of the GA Act.
16 Under s 90 of the GA Act, when reviewing an administration order, the Tribunal can confirm the order, amend the order, revoke the order or revoke the order and substitute another order for it.
EP's disabilities
17 Reports from the 2014 Tribunal proceeding show that EP has a longstanding mental illness (schizoaffective disorder), and in November 2013, suffered a hypoxic brain injury resulting in an acquired brain injury. She was said to be confused, able to only follow very simple instructions and to be very dependent on her family and other carers.
18 Reports filed for the current Tribunal proceeding state that EP continues to be reliant on support for personal and community care. A report from EP's mental health case manager states that she is not able to manage her medication independently or to recognise if she is becoming unwell or needs support.
19 EP's general practitioner states that EP needs antipsychotic medications to manage her delusions, and also suffers from chronic, mild cognitive problems. The prognosis given is that EP is likely to deteriorate slowly but that she could experience a sudden deterioration if left unsupervised and if she does not take her medication.
20 When interviewed by the Public Advocate on 10 March 2016, EP said that her shortterm memory is very poor; however, she believed she could make her own medical decisions.
21 FP, SW and NW confirm that EP has very poor shortterm memory and is highly dependent.
The applications by the Public Advocate
EP's personal matters
22 The Public Advocate provided the Tribunal with a document referred to as a 'Community Referred Investigation Report' (CRI). The CRI is dated 19 April 2016.
23 The CRI arose from a complaint received by the Public Advocate from an occupational therapist (OT) of the NDIS in February 2016. A note by the OT is included with the CRI.
24 The Public Advocate investigated the complaint pursuant to s 97(1)(c) of the GA Act.
25 Subsequent to the investigation, the Public Advocate made the applications to the Tribunal.
26 The investigation conducted by the Public Advocate was extensive and involved discussions with:
• the OT and a senior manager with NDIS;
• the Public Trustee, Private Administrator Support Team (Public Trustee);
• an agency that provides support in the home for EP (support agency);
• EP's mental health case manager (case manager); and
• FP, SW and NW.
The Public Advocate also visited EP in her home and spoke with her.
28 Relevantly, the CRI states as follows.
29 EP lives in a three bedroom house (property) with her mother, FP, and daughters, SW and NW. SW is in receipt of the carers allowance in respect to EP.
30 The OT attended the home of EP in February 2016 with a view to dealing with an issue concerning EP's access to the toilet and bathroom, and other safety and health issues. There had been previous home visits by the OT so there was an awareness of EP's living circumstances.
31 It was reported by the OT that EP sleeps in the lounge room on a special bed provided through NDIS. At the time of her visit, there was no clear access to the toilet and bathroom because of the clutter in the house. The shower recess is too small to fit a shower chair for EP, and the shower door is broken and water does not drain properly.
32 EP is said to be at a high risk of falls and injury because the clutter is a hazard.
33 EP is said to use incontinence pads as a means of overcoming the difficulties of getting to the toilet. EP is obese and suffers from diabetes and is purported not to be given an appropriate diet. The OT raises a concern that because of EP's physical limitations in addition to a lack of motivation as a consequence of her acquired brain injury, she is at high risk of developing urinary tract infections and pressure sores.
34 The OT reports that the bathroom cannot be made more accessible for EP and is a serious risk to her safety and the safety of carers. It requires a major renovation which NDIS will not fund.
35 The OT further reports that FP, SW and NW have said that they have been at a point of emotional breakdown in trying to meet the care needs of EP.
36 The OT advises that since the complaint has been made to the Public Advocate, FP has forbidden her to visit EP.
37 The OT expresses a view to the Public Advocate that EP needs institutional care and that because the property may need to be sold for this to occur, FP, SW and NW are in a conflicted position because they have nowhere else to live.
38 The support agency advises the Public Advocate that care is provided for FP and EP in the property.
39 The support agency agrees with the views of the OT regarding the safety issues surrounding EP's access to the toilet and shower recess.
40 The support agency notes that since the involvement of the Public Advocate, the family has cleaned and decluttered the front lounge and one of the rooms.
41 The support agency expresses a concern about EP's incontinence and the health problems that can arise because of a lack of regular personal hygiene.
42 The support agency tells the Public Advocate that EP is better in herself and looks well after spending time in respite care.
43 The case manager advises the Public Advocate that the property has been cleaned recently. She has concerns about EP's selfcare, incontinence management and safety.
44 The case manager visits EP once a week and takes her out for a coffee, a walk or for an appointment, including an art class.
45 The case manager is of the view that although EP could be better cared for in a care facility, there may not be a suitable facility available.
46 In a separate report to the Tribunal, the case manager states that EP's family are very close and supportive of one another. EP is said to require a high level of nursing care and until support was obtained from NDIS, that care was largely undertaken by SW and NW, which at times appeared to overwhelm them.
47 The Public Advocate visited the property on 10 March 2016 and spoke with EP, FP, SW and NW (see below).
48 The Public Advocate states that the property had been cleaned and tidied; however, there was still clutter and the poor state of the shower recess was observed.
EP's financial matters
49 The Public Advocate states in the CRI that a title search shows that EP and FP are the joint owners (joint tenants) of the property.
50 The Public Advocate spoke with the Public Trustee and was advised that FP and SW, as the administrators of EP's estate, had submitted the accounts for the period 23 April 2014 to 30 April 2015 in July 2015 (account 1). Account 1was not considered to be in a usable form and the administrators were initially required to resubmit them.
51 Information from account 1 showed that EP was in receipt of the disability support pension of $760.80 per fortnight and that it had not been initially possible for the Public Trustee to verify how that income was spent.
The evidence and submissions of FP, SW and NW
52 FP, SW and NW spoke with the Public Advocate prior to the hearing (included in the CRI) and also gave oral evidence at the hearing.
53 FP accepts that EP has high care needs and this takes its toll on the family. EP is obese (she weighs150 kilograms) and has chronic diabetes. She is said to empty her bowels and urinate very regularly and although she is washed and cleaned each morning by support staff, at other times during the day this difficult care need is dealt with by SW and NW (the support agency observes that they find that EP has been left at times in her wet incontinence pad).
54 FP states that the hot water system is not currently working, and told the Public Advocate that the washing machine and dryer are broken (NW states that sufficient funds have now been accumulated to have the hot water system repaired and this is being arranged).
55 FP confirms that she will not allow the OT to come to the property but she says that she has arranged for another occupational therapist to take over.
56 FP says that EP has her bed in the lounge room because she likes to watch television.
57 FP states that EP has a number of outings during the week which includes an art class. She is entitled to respite care four times per year for one week which is funded by NDIS. NDIS has funded the purchase of equipment for EP's care, such as her bed, a table and a chair.
58 FP states that she and SW and NW are very wary of institutional care for EP because of her vulnerabilities. She says that the last time EP was in a mental health unit she was raped, and that, more recently when in respite care, EP was showered by a male assistant against the wishes of the family.
59 FP accepts that EP will need nursing home care eventually but would need to be assured that EP would be happy in such a place. FP says that she will know when that time comes; for example, if NW and SW were to leave home. FP understands the care situation for EP at home is becoming more difficult, and is very concerned with EP's current and future circumstances.
60 FP states that the property is owned jointly by her and EP. This, she says, was not the initial intention - she was only to have '1/2 %' but this changed because she is also jointly liable for the mortgage on the property. The original mortgage was about $85,000 but this increased to nearly $170,000 as a consequence of EP's gambling, payout of her credit cards and payments made by her in respect to her former partner.
61 FP states that her interest in the property is held for SW and NW. EP wishes for the property eventually to go to her daughters. FP states that she does not want to sell the property and if EP needs to go into care, she will make sure something is done to enable the property expenses to be paid, including finding work (although NW later said that the property would be sold, if necessary, to fund EP's future institutional care).
62 The rates and taxes on the property have been deferred and will need to be paid if the property is sold.
63 FP advises the Public Advocate that EP's pension is mainly used to pay the mortgage. FP's pension is generally used to pay for household expenses. She also says that EP has a personal loan (balance not known) which is repaid at $104 per fortnight.
64 SW and NW state that they attend university. Both pay $150 per fortnight into the household. This is used to pay for their mobile phone plans, fuel costs for the car and food costs.
65 NW submits there is no need to appoint a guardian and an administrator for EP. She says the family can continue for the present time and the appropriate care decisions will continue to be made for EP.
66 NW further submits that the appointment of an administrator would be inconvenient because it would upset the current arrangement of household finances which she says is working appropriately.
67 FP says she is very angry at the OT because of the way in which the complaint was, in her view, unnecessarily raised with the Public Advocate.
The Public Trustee
68 The Public Trustee states that on the information provided by the administrators, account 1 was reconstructed and sent to the administrators for signature. The administrators say they have not received the reconstructed accounts.
69 The Public Trustee says that the accounts for the year to 30 April 2016 became due on 1 July 2016 but have not yet been filed.
70 The Public Trustee states that it appears that EP's income (disability support pension) is largely expended on mortgage repayments and other property expenses.
The views and wishes of EP
71 The Public Advocate spoke with EP on 10 March 2016. EP attended the Tribunal hearing but was unable to give a meaningful contribution.
72 EP told the Public Advocate that she wants to remain living in the property with FP, SW and NW. She enjoys respite care but could not live in such a facility on a permanent basis.
73 EP advised the Public Advocate that she owns the property and that FP makes all her financial decisions and buys her everything she needs.
The final submissions of the Public Advocate
74 The Public Advocate supports FP to continue to make treatment decisions for EP, but submits that the entwined and conflicting interests of EP, FP, SW and NW in the property requires the appointment of a guardian and an administrator independent of the family.
75 The Public Advocate contends that FP, SW and NW benefit from EP continuing to reside in the property.
76 The Public Advocate submits the functions required in the guardianship order are EP's future accommodation and her ongoing support needs.
Discussion
77 The evidence clearly shows that EP has a range of disabilities that impact on her cognition and functioning. She is dependent on carers for her basic needs and cannot function alone or arrange the support she requires.
78 EP has a significant cognitive impairment as a consequence of her longstanding mental illness and the acquired brain injury. Although able to express a view concerning her needs, she is unable to make reasonable judgments in respect to how those needs should best be met.
79 It is not in dispute that EP is a person for whom guardianship and administration orders can be made.
80 I find and declare that EP is incapable of looking after her own health and safety, is in need of oversight, care and control in the interests of her health and safety, and is unable to make reasonable judgments about matters relating to her person or estate.
81 EP's living circumstances are very difficult. I accept that her family try heroically to meet her extensive care needs together with agency support, but the current situation is, objectively speaking, untenable.
82 The question is, can EP remain at home if additional supports are able to be made available, or are her care needs so great now that she requires institutional care?
83 EP's family (FP, SW and NW) are in an invidious position. They are concerned how EP will cope in institutional care given unfortunate events that have occurred in the past. In addition, what has developed over time is reliance by FP, SW and NW on EP being cared for at home because the property is also their home and they rely upon EP's income.
84 The needs of EP, FP, NW and SW are enmeshed.
85 This is further complicated by the ownership structure of the property where it is not clear what may be the ultimate beneficial interest of EP in the property.
86 The family's heart is in the right place but even with the best will in the world, they are conflicted in the decisionmaking about EP's future accommodation and care needs. A guardian is therefore necessary to make that decision and because their interests conflict with those of EP, it cannot be FP, SW or NW: s 44(1)(b) of the GA Act.
87 I will appoint the Public Advocate as guardian to make the decisions concerning EP's accommodation.
88 I am concerned at the apparent breakdown in the relationship between FP and representatives of NDIS, the funder of support services and respite. If EP is to have a chance to remain in the home in the near future, it is imperative that all reasonable support services be investigated and accessed. This can only happen in my view if NDIS can have open discussions with the relevant decisionmaker.
89 For that reason, I will appoint the Public Advocate as guardian to determine the services to which EP should have access.
90 The Public Advocate submits that FP can continue to make the treatment decisions for EP; however, I do not accept that is in her current best interests. The living conditions of EP potentially exacerbate her medical illnesses, especially her diabetes. It seems to me that EP would benefit from a thorough review of her physical and mental health needs in the context of her present environment and in the decision concerning her future accommodation.
91 For these reasons I will appoint the Public Advocate as EP's guardian to make her treatment decisions.
92 I will set the review of the guardianship order for two years. I expect the decision about EP's longer term accommodation will have been made in this time and the appointment of the Public Advocate may not be further needed.
93 In respect to EP's estate, there are a number of matters which support the appointment of the Public Trustee and revocation of the existing administration order.
94 The first of these, and which has been already considered, is the financial interdependence of EP with FP, SW and NW and their incompatible interests should EP need to go into institutional care. The beneficial ownership of the property is another matter, as is the practice of pooling the limited household income without a clear demarcation as to the use of EP's income (who cannot decide this herself). The difficulty the administrators have had in producing a set of accounts to the standard required by the Public Trustee is also a concern.
95 For these reasons, I will revoke the administration order made on 23 April 2014 appointing FP and SW and substitute it with an order appointing the Public Trustee as plenary administrator of EP's estate.
96 It is also the case that the appointment of the Public Trustee is more compatible with the appointment of the Public Advocate as EP's guardian than is retaining the existing administration order: s 68(3)(a) of the GA Act.
97 I will set the review of the administration order together with the review of the guardianship order.
Orders
Guardianship
The Tribunal declares that the represented person:
(a) is incapable of looking after her own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to her person;
(c) is in need of oversight, care or control in the interests of her own health and safety; and
(d) is in need of a guardian,
And the Tribunal orders that:
1. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia 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 decide with whom the represented person is to live;
(c) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person; and
(d) To determine the services to which the represented person should have access.
2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3. The guardianship order is to be reviewed by 22 September 2018.
Administration
The Tribunal declares that the represented person;
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b) is in need of an administrator of her estate,
and the Tribunal orders that:
The administration order dated 23 April 2014 is revoked and an order in the following terms is substituted for it:
1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2. The administration order is to be reviewed by 22 September 2018.
I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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