EP and AM
[2005] WASAT 250
•19 SEPTEMBER 2005
EP and AM [2005] WASAT 250
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 250 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:74/2005 | 3 MARCH 2005 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) MR J MANSVELD (MEMBER) MR E LEIPOLDT (SENIOR SESSIONAL MEMBER) | 19/09/05 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Public Advocate appointed limited guardian Public Trustee appointed plenary administrator | ||
| B | |||
| PDF Version |
| Parties: | EP AM |
Catchwords: | Guardianship and Administration Application for the appointment of a guardian and administrator Elderly woman with dementia Need for decisions concerning accommodation and financial affairs Daughter willing to act but strong objection by represented person Conflict between husband and daughter Need for independent guardian and administrator Public Advocate appointed limited guardian Public Trustee appointed plenary administrator |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 64 |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : EP and AM [2005] WASAT 250 MEMBER : MS J TOOHEY (SENIOR MEMBER)
- MR J MANSVELD (MEMBER)
MR E LEIPOLDT (SENIOR SESSIONAL MEMBER)
- Represented person
AND
AM
Applicant
Catchwords:
Guardianship and Administration - Application for the appointment of a guardian and administrator - Elderly woman with dementia - Need for decisions concerning accommodation and financial affairs - Daughter willing to act but strong objection by represented person - Conflict between husband and daughter - Need for independent guardian and administrator - Public Advocate appointed limited guardian - Public Trustee appointed plenary administrator
(Page 2)
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 64
Result:
Public Advocate appointed limited guardian
Public Trustee appointed plenary administrator
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
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 In this case, the applicant sought the appointment of a guardian and an administrator for her elderly mother, EP. The Tribunal was satisfied that EP was a person for whom orders could be made. The applicant proposed she be appointed guardian and administrator but conflict between the applicant and EP's husband, who did not propose he be appointed, was such that the Tribunal decided an independent guardian and administrator was necessary. The Tribunal appointed the Public Advocate limited guardian for EP, and the Public Trustee plenary administrator.
Background
2 EP is an 88-year-old woman who was born in South Australia and lived there all her life until coming to Western Australia in late 2004 to live with her daughter, AM. AM had visited her mother in South Australia in late 2004 and become concerned at the state she was living in, her poor diet and hygiene, and the large number of cats in the house. AM was also concerned about substantial amounts of money which EP had given over the years to a man, JR. Although EP told AM that she and JR were married, they did not live together; they maintained separate houses, visiting each other frequently but rarely staying together overnight. AM had never seen documents verifying the marriage and believed that EP was being exploited financially.
3 On 4 February 2005, AM lodged with the Tribunal applications for the appointment of a guardian and an administrator for EP. On 3 March 2005, the Tribunal held an oral hearing, attended by EP and AM, and by JR who flew from South Australia to be present. Orders were made, and reasons given, orally at the conclusion of the hearing. These written reasons have been prepared at the request of the Public Advocate pursuant to s 78 of the State Administrative Tribunal Act2004 (WA).
Relevant legislation
4 Section 43 of the Guardianship and Administration Act 1990 (WA) (the Act) provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
"(a) has attained the age of 18 years;
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- (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."
5 Section 64 of the Act provides that, where the Tribunal is satisfied that a person in respect of whom an application for an administration order is made:
"(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."
6 The principles to be observed by the Tribunal when dealing with proceedings under the Act are set out in s 4. The primary concern of the Tribunal must be the best interests of the person in respect of whom an application is made. Secondly, until the contrary is proved to the satisfaction of the Tribunal, every person is presumed to be capable of looking after his or her own safety and health; of making reasonable judgments in respect of matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to his or her estate. Thirdly, an order appointing a guardian or administrator shall not be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Fourthly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in
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- the opinion of the Tribunal, to meet the needs of the person concerned. As well, an order appointing a limited guardian or an administrator shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person’s freedom of action and decision. Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person in respect of whom an application is made.
7 Unless she is appointed to act jointly with another person or persons, the Public Advocate shall not be appointed as a guardian unless there is no other person suitable and willing to act: s 44(5).
Information before the Tribunal
8 In her written application, and in oral evidence, AM told the Tribunal that she went to South Australia to visit her mother in late 2004 and became concerned at the conditions in which she was living; she had had similar concerns on previous visits and had, on one occasion, lodged an application with the Guardianship Board of South Australia for the appointment of a guardian for her mother; she subsequently withdrew that application after discussions with EP's doctor and after deciding she was not in a position to act as her mother’s guardian at that time.
9 AM stated that, when she saw her mother in October 2004, she had become very thin, she was not eating properly at all, and the conditions she was living in were unhygienic, including because of some 17 cats and other animals living in the house with her. AM also told the Tribunal that she was concerned that considerable sums of money were unaccounted for, including some which she said her mother had lent to JR and which had not been repaid.
10 When she saw the conditions her mother was living in, AM persuaded her to move to Perth to live with her. Initially the plan was that EP would come for a holiday and get better, after which they would see what would happen. However, shortly after she arrived, EP was referred by the Aged Care Assessment Team (ACAT) to the Memory Service Clinic at her local hospital. An assessment concluded that EP had a "significant" cognitive impairment. In January 2005, she was admitted to hospital because of her deteriorating condition. She was still in the hospital at the time of the hearing.
11 AM told the Tribunal that her mother's condition on admission to hospital was acute but had stabilised; her condition was no longer acute and she could not longer remain at the hospital; nor was returning to AM's
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- home an option because of the high level of care which EP required; a decision needed to be made about where she would live; as far as she knew, there was no need for a guardian to give consent to medical treatment either immediately or in the foreseeable future.
12 AM told the Tribunal that she had investigated various residential facilities for her mother, including one which she thought was suitable but for which a bond of $118 000 was payable; an administrator was needed in order to sell EP's property in South Australia, pay various bills and make arrangements for EP to move into permanent accommodation here.
13 Although she conceded that she needed some help "with some things" from time to time, EP maintained vehemently that she did not want, or need, a guardian or administrator to make decisions for her. She stated that she did not want her daughter to be her guardian or administrator; she did not like Western Australia and wanted to return to South Australia to live with her husband. She told the Tribunal repeatedly that she did not want to be in hospital, she wanted to be her own boss, and she would prefer to live with her husband if she could. However, when asked about how she managed living on her own, and in particular how she managed her finances, EP was frequently confused and vague and unable to clearly say how she managed.
14 JR told the Tribunal that he and EP married in 2000; they had rarely lived together, and maintained separate houses. Although they sometimes spent the night at one another's house, he said he did not like being at EP's house because of its generally poor condition and, in particular, because of the number of animals she kept there which made it smell. However, he told the Tribunal that he would visit every day and would do things around the house and generally help to care for EP.
15 JR produced to the Tribunal a certificate of marriage showing that he and EP married in South Australia in 2000. AM acknowledged the certificate and acknowledged that JR had assisted her mother, visiting her frequently, and generally supporting and assisting her. However, she told the Tribunal, she did not consider that JR was a suitable person to look after her mother, firstly because he did not want to live with her, and secondly, because she was concerned about the large sums of money apparently unaccounted for.
16 There was a good deal of disagreement in the course of the hearing between AM and JR about various sums of money which EP had given him. There was also disagreement between EP and AM over amounts of
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- money that EP said AM owed her, and EP stated strongly her objection to AM managing her money for her.
17 AM told the Tribunal that she recognised that EP did not want anybody, including herself, to act as her guardian or administrator. She said, however, that JR was not, in her opinion, a suitable person; if she could not be guardian and administrator herself, it would be better to have a government body appointed. She told the Tribunal that EP had no circle of friends in South Australia and, apart from a cousin in Western Australia, no other family; there was no one else suitable and willing to take on the appointments.
18 JR told the Tribunal that he had an application before the Guardianship Board in South Australia for the appointment of a guardian for EP. He made the application after EP rang him and said she wanted to return to South Australia but her doctor would not allow her to go. However, he told the Tribunal he would not oppose AM's appointment if she wished to be appointed. Both AM and JR agreed they would cooperate if an independent guardian and independent administrator were appointed.
Medical and other reports
19 The Tribunal has before it reports from EP's current general practitioner, the treating psychiatrist and geriatrician from the hospital where she currently is, the social worker attached to the hospital, and an ACAT assessment.
20 The reports document a consistent diagnosis of Alzheimer's type dementia and EP's lack of capacity to make reasonable decisions about her personal health care, her living situation and her financial affairs. The treating psychiatrist notes EP's poor comprehension, lack of awareness of her estate, and her lack of capacity to make any of the sorts of decisions relevant to the applications.
21 The ACAT assessment notes EP's dementia, risk of falling, short and long term memory loss, confusion, disorientation and wandering, and her need for assistance with everyday tasks such as showering and dressing.
22 The report of the geriatrician states that EP has a "significant cognitive impairment"; she has no insight into her memory loss; she could not say how many bank accounts she had or how much was in them; she had no idea of her financial affairs and no capacity to manage them or make good judgments about her living arrangements.
(Page 8)
Findings and reasons
23 The Tribunal is required, as far as possible, to take into account the wishes of the person whom the applications concern. The Tribunal acknowledges the strongly stated objections of EP to the appointment of a guardian or an administrator. However, the Tribunal is also required to act in her best interests.
24 The medical and other reports are consistent in their findings that EP lacks the capacity to make almost any decisions about her personal care, her health and safety or her financial affairs. While AM and JR disagreed over various aspects of the application, neither disagreed with the assessments of EP's capacity. Only EP herself maintained that she is capable of making reasonable decisions for herself.
25 The Tribunal accepts the evidence in the reports and is satisfied that EP is incapable of looking after her own health and safety; unable to make reasonable judgments in respect of matters relating to her person; and is in need of oversight, care or control in the interests of her own health and safety. It is also satisfied that EP is, by reason of mental disability, namely her Alzheimer's type dementia, unable to make reasonable judgments in respect of matters relating to her estate.
26 The Tribunal is satisfied that EP is in need of both a guardian and an administrator. Now that she can no longer remain in the hospital, a decision needs to be made quite quickly about where EP will live. That decision in turn will involve decisions which concern EP's financial affairs: the likely sale of the property in South Australia, probably the payment for an accommodation bond in Western Australia, the general operation and management of her bank accounts and payment of bills.
27 The Tribunal finds that there is no means of meeting EP's needs which would be less restrictive of her freedom than formal appointments. EP is most unlikely to agree to decisions made for her, and the sale of the property, operation of bank accounts and general management of her financial affairs will involve formal authority. Given that decisions need to be made only about where EP is to live and with whom, the Tribunal is satisfied that the appointment of a limited guardian is sufficient to meet EP's current needs. Given the range of decisions and powers required in relation to EP’s financial affairs, the Tribunal is satisfied that the appointment of a plenary administrator is required.
28 Given EP's strongly-stated objections to the appointment of AM as her guardian or administrator, the Tribunal is not satisfied that her
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- appointment would be suitable. This is not intended to reflect on AM but to accommodate, as far as possible, EP's wishes, and to ensure an appointment that is workable. Nor is the Tribunal satisfied that JR would be a suitable appointment. He did not propose himself as either guardian or administrator. Although he was willing to have EP come to live with him, in all the circumstances, the Tribunal is not satisfied that such an arrangement would be suitable or in her best interests. In particular, EP now requires a higher level of care than JR is able or willing to provide. Moreover, while each acknowledges the importance of the other in EP's life, the degree of conflict between AM and JR means there is a real chance that the conflict could delay decisions that need to be made and that neither would entirely set it aside and act in EP's best interests alone. The Tribunal finds that the appointment of an independent guardian and independent administrator is in EP's best interests.
29 The appointments will be for a period of 12 months so that arrangements can be made for the sale of EP's house, if that is what is decided, and arrangements made for her more permanent accommodation. The orders will be reviewed after 12 months.
30 In relation to the application for the appointment of a guardian, the Tribunal orders that:
1. The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road East Perth Western Australia be appointed limited guardian of EP with the following functions:
(i) to decide where she is to live, whether permanently or temporarily;
(ii) to decide with whom she is to live.
(2) The Tribunal approves delegation by the Public Advocate of her functions as guardian of EP to an officer or officers employed in the Office of the Public Advocate.
- In relation to the application for the appointment of an administrator, the Tribunal orders that:
1. The Public Trustee be appointed plenary administrator of EP’s estate with all the power and duties conferred by the Act.
These orders are to be reviewed by 3 March 2006.
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I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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