FE - [2013] WASAT 26 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: FE [2013] WASAT 26

MEMBER: MS F CHILD (MEMBER)

HEARD: 24 MAY 2012, 5 SEPTEMBER 2012 AND 7 NOVEMBER 2012

DELIVERED : 7 NOVEMBER 2012

PUBLISHED : 15 FEBRUARY 2013

FILE NO/S: GAA 1045 of 2012
GAA 2049 of 2012

MATTER :FE

Catchwords:

Guardianship and administration Application for appointment of guardian and review of administration order Represented person with diagnosis of Huntington's disease and associated psychiatric symptoms Transfer of property from represented person and her spouse to their son without consideration Need for independent administrator Cancellation of services to monitor prescribed psychiatric medications Family conflict Need for guardian to make treatment decisions, determine services to which represented person should have access and the contact she has with others

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 64, s 74, s 77, s 82
State Administrative Tribunal Act 2004 (WA), s 35

Result:

Public Advocate appointed limited guardian for one year
Public Trustee confirmed as administrator for five years

Summary of Tribunal's decision:

Applications were made for the appointment of an administrator and guardian for a 61yearold woman with a diagnosis of Huntington's disease with associated psychiatric symptoms. The Public Trustee was appointed as plenary administrator. On review of that order, the appointment of the Public Trustee was confirmed with the support of all the parties. In respect of the guardianship application, the Public Advocate was appointed limited guardian with functions to determine services, medical treatment and the contact the represented person has with others. The Tribunal was satisfied that there was no one within the family who was suitable for appointment as guardian, due to the conflict and the rejection of services by the represented person and her spouse who was her primary carer. The guardianship order was made reviewable in one year.

Category: B

Representation:

Counsel:

Represented Person : N/A
Interested Party : Mr P Marsh

Solicitors:

Represented Person : N/A
Interested Party : Waterside Legal

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

REASONS FOR DECISION OF THE TRIBUNAL:

Background

The represented person is a 61yearold woman who has a diagnosis of Huntington's disease made some 10 years ago.
In March 2012, the represented person was admitted to hospital with what was described as a significant deterioration in her physical and mental health. After a lengthy period in hospital, it was agreed by the hospital treating team, in consultation with her family, that she could be discharged to her home with a service to assist her and monitor her psychiatric medications.
While the represented person was in hospital, her daughters, FM and NE (applicants), applied to the Tribunal on 20 March 2012 seeking the appointment of a guardian and an administrator for their mother. They said that she was at risk of injury from a fall if she returned home because the property was unsafe, and that she was at risk of falls because of mobility problems associated with Huntington's disease, made more serious because of her diagnosis of osteoporosis.
The applicants said their parents were under the influence of their brother, and that housing and financial decisions had been made which were not in their best interests. They asserted that their father had told them he was not coping with their mother's care in the weeks prior to her admission to hospital. Their brother, JE, who is a flyin flyout worker, filed an application on 26 April 2012 for the appointment of a guardian for the represented person. His application opposed any orders being made and asserted that the represented person could make her own decisions.
The applications were first heard on 24 May 2012 (the first hearing). By the time of the first hearing, the represented person had been assessed as eligible for high level residential care and an Extended Aged Care At Home (EACH) package through the Aged Care Assessment Team (ACAT) process, and discharged from hospital to her home with the EACH package for monitoring of her medications.
The applicants, the represented person, her spouse and her son attended the first hearing, as did a representative from the Office of the Public Advocate (Public Advocate), the sistersinlaw and a friend of the represented person.
At the first hearing, the represented person, her spouse and her son challenged the medical evidence provided by Dr P, a consultant neurologist, who said in a report dated 5 April 2012 that the represented person had a diagnosis of Huntington's disease and was incapable of making decisions about her personal health care, her living situation or her financial affairs. Although they accepted the diagnosis had been made, the represented person and her spouse and her son said that Dr P was not the represented person's doctor and that her doctor, Dr M, took a different view to that of Dr P regarding the represented person's capacity.
Despite the opposition to an order being made and a request for an adjournment from the son, the Tribunal determined that it was not in the represented person's best interests for the application for the appointment of an administrator to be adjourned. This was because the represented person's interest in a property previously owned jointly between the represented person, her spouse and her son, had been transferred to the son in the weeks prior to the hearing. The represented person's son said he was unsure about the date of the transfer (T:25; 24.05.12). As the transfer may have been within two months of the hearing day, if an administration order was made on that day, this would enable any appointed administrator to make an application to the Tribunal pursuant to s 82 of the Guardianship and Administration Act 1990 (WA) (GA Act) to set aside the transfer if the administrator considered it was appropriate to do so.
The administration order was made for a short review period to be heard with the adjourned guardianship application.
The guardianship application was adjourned for further investigation by the Public Advocate. The Public Advocate was asked to facilitate arrangements for a neuropsychological assessment of the represented person's cognitive functioning, to which she readily agreed in the hearing. Arrangements were made for two appointments for the assessment. Transport to attend the appointments was offered by one of her daughters. However, at the time of the final hearing, the represented person had not attended for the assessment.
Following the first hearing, orders were made for the production of the health records from the hospital where the represented person had been a patient, in particular, for reports of assessments by the occupational therapist (OT). Those documents were subsequently received and provided to the represented person's solicitor.
The guardianship application and the review of the administration order were listed for hearing on 5 September 2012 and the attendance of Dr M arranged by telephone. The son advised by emails in August 2013 that his parents had engaged a solicitor, that Dr P had reviewed the represented person and 'she was the best he had ever seen her', and that neither he nor his parents would attend any further hearings of the Tribunal. In contrast to the position put in the first hearing, he did concede in an email dated 3 August 2012 that the represented person had been seeing Dr P for 'a while'.
Dr M attended the hearing on 7 September 2012 by telephone. Dr M confirmed that Dr P was the consultant and treating doctor of the represented person and that he, Dr M, was a resident working in Dr P's team. He confirmed the represented person's diagnosis of Huntington's disease and agreed with the opinions given in Dr P's April 2012 report regarding the represented person's incapacity to make reasonable judgments about her affairs. Dr M said that Dr P was senior to him, but that he had made his own observations of the represented person while she had been a patient in the hospital and his opinion was based on those observations.
The Public Trustee reported that the transfer of the represented person's interest in the property had been signed on 17 February 2012 and registered on 2 May 2012. The Public Trustee reported that an investigation was continuing into the capacity of the represented person to enter into the transaction. The Public Trustee reported that he was also seeking information in relation to gifts of money given to the represented person's daughters and son some years before, following the sale of the spouse's interest in a business. The Tribunal heard at the first hearing that the spouse believed he had a large capital gains tax liability arising from the sale, which he could not meet, and that gifting the money to his children in 2008 had caused a reduction in his pension income entitlement for some years. A question was raised in the Public Trustee's report as to whether the gifts to the children were, in fact, loans. This required further consideration by the Public Trustee.
The matter was again adjourned to November 2012, to obtain further evidence from Dr P and to allow for the attendance of the represented person. Notice of legal representation of the represented person was received on 10 September 2012 and all documents filed in the matter were provided to her legal representative.
At the final hearing on 7 November 2012, the represented person, her spouse and all three children appeared, together with representatives of the Public Trustee and the Public Advocate.
At the final hearing, counsel advised that he represented the spouse of the represented person and her son but not the represented person. A further report was handed up and oral evidence by telephone was received from Dr P. Reports were received from the Public Advocate and the Public Trustee.
Following the oral evidence of Dr P, counsel for the spouse and the son concedes that the represented person is a person for whom guardianship and administration orders could be made and the spouse, the son and the represented person all support the reappointment of the Public Trustee as administrator of the estate of the represented person (T:51; 07.11.12). Issue is taken only with the need for the appointment of a guardian for the represented person.

Legislation

Pursuant to s 64 of the GA Act, the Tribunal may appoint an administrator of an estate of a person if satisfied that the person is unable, by reason of a mental disability, of making reasonable judgments about her estate and there is a need for the order.
Pursuant to s 43(1)(b) of the GA Act, a guardian may be appointed for a person if the Tribunal is satisfied that the person is:
(i)unable to look after her own health and safety;
(ii)unable to make reasonable judgments about her person; or
(iii)in need of oversight and care in the interests of her own health and safety; and
pursuant to s 43(1)(c) is in need of a guardian.
These provisions are subject to principles set out in s 4 of the GA Act which provide that the primary obligation of the Tribunal is the best interests of the represented person. The principles further provide that persons are presumed to be capable of making judgments about their person and about their financial affairs unless the contrary is proved to the satisfaction of the Tribunal; that orders should not be made if there are less restrictive means by which the represented person's needs can be met; and that in any proceeding before the Tribunal, the wishes of the proposed or represented person should be ascertained.

Issues to be decided

Although all parties now agree that the represented person is a person for whom orders may be made, the Tribunal must make findings regarding the following matters:
•does the represented person have a mental disability;
•is she unable, by reason of that mental disability, of making reasonable judgments about any or all of her estate;
•is there a need for an administrator or are there less restrictive means by which the represented person's needs can be met; and
•if an order is needed, who should be appointed in that role?
In respect of guardianship, again, although it is conceded that an order can be made, the need for an order is challenged. In any event, the Tribunal must consider whether any or all of the paragraphs in s 43(1)(b) of the GA Act apply to the represented person and, if so, whether there is a need for an order, or whether the needs of the represented person could be met by less restrictive means. If an order is needed, the decision must then be made regarding the functions to be included in any order made and the appropriate appointment in the best interests of the represented person.

Is the represented person a person for whom orders may be made?

In his evidence regarding the represented person's condition, Dr P describes atrophy of the brain shown on an MRI scan and confirms that the represented person has 'underlying brain damage' (associated with Huntington's disease), despite an improvement in functioning of the represented person with treatment (T:27; 07.11.12). Dr P agreed with a proposition put by the Public Advocate, that once cognitive function has declined, there is little chance of regaining that function (T:27; 07.11.12).

Based on the reports obtained by the Tribunal, being:
•reports of Dr P, dated 5 April and 25 October 2012;
•a further report by Dr P tendered at the hearing by counsel for the spouse and son, dated 25 October 2012;
•Dr P's oral evidence of 7 November 2012;
•the evidence of Dr M,
•the hospital records of the represented person including notes of the ACAT assessment, dated 6 March 2012;
•the discharge summary, dated 10 April 2012; and
•the notes of the OT, dated 15 March and 21 March 2012,
the Tribunal finds that the represented person does have a mental disability, for the purposes of s 64 of the GA Act, being the brain damage caused by Huntington's disease and associated psychiatric symptoms.
By reason of these disabilities the represented person is not able, because of impaired memory and judgment, to make reasonable decisions regarding her personal or financial affairs, she is not able to look after her own health and safety, and she is in need of oversight and care in the interests of her own health and safety. She is therefore a person for whom guardianship and administration orders may be made.

Is the represented person in need of an administrator of her estate?

The need for the appointment of an administrator is not contested.
The applications arose from the concern of the applicants that decisions involving both housing and financial matters have been made without regard to their mother's health diagnosis and long term needs. The decision to move to the property in which she now lives with her spouse and her son (at times when he is not away for work) some six years ago is considered by the applicants to have been a poor one, given her history of falls, her diagnosed osteoporosis and the nature of the property. They say the position is only made worse by the confirmation of her diagnosis and the recent deterioration in her condition.
The background, as gathered from material put in the hearings, is that the represented person and her spouse contributed the proceeds of sale of their unencumbered property into the purchase of the current property with their son about six years ago. He borrowed his half share using a property he then owned as security. Following the transfer to him in February 2012 of their interest, the represented person and her spouse now have no legal interest in the property. The son explains that the transfer was necessary to enable finance to be obtained to develop the property to build a 'granny flat' for his parents on the land. It seems that there have been plans for development of the land for some years; however, these have not eventuated. The property that was purchased for $800,000 six years ago is now reported by the son to be valued at $750,000, which the son agrees is 'block value'. He says his mortgage has been refinanced twice with $563,000 now owed by him. He describes the transfer of his parents' interest in the property as 'debt for equity issues, pretty much' so that the 'debt is now fully in my name, which is the point we were aiming at, to relieve mum and dad from the debt' (T:17; 07.11.12).
As part of her submissions made in the final hearing, the Public Advocate referred to the hospital's Occupational Therapy Assessment Report of the property (dated 15 March 2012) which was conducted prior to the represented person's discharge from hospital. The report describes the house as a '[b]each house/shack … an asbestos shack on stilts on a sloping block ... sandy like a sand dune, small rocks quite slippery … has 10 steps at the front and four at the back'. The report notes that 'the son plans to level'.
It is noted that the hospital discharged the represented person to the property with the agreement by the spouse and the son that there be some home modifications a cement path and rails and that she receive services to monitor prescribed psychiatric medications.
The Tribunal finds that there remains a need for an independent administrator of the estate of the represented person. The children of the represented person are in conflict about past decisions regarding gifts or loans made to the children and whether these loans have been, or should be, repaid. More recently, the transfer of their interest in the property to their son by the represented person and her spouse is questioned by the applicants. The represented person's ability to access residential care in the future is of concern. These issues need to be clarified for the represented person.

When considering less restrictive alternatives to the appointment of an administrator of the estate of the represented person, the evidence is that Dr P does not consider the represented person capable of executing an enduring power of attorney. A document dated 13 September 2012 and witnessed by two doctors, including Dr KB, the spouse's treating doctor, which purported to be an enduring power of attorney of the represented person, was submitted on 17 September 2012 by the solicitors who then acted for the represented person and now act for the spouse and the son.
Because of the operation of s 77 of the GA Act, as the represented person was subject to an administration order at the time of the execution of the document, she was unable to give an enduring power of attorney. Given Dr P's evidence, which is accepted, an enduring power of attorney cannot provide a less restrictive alternative to the making of administration order. This matter was not pursued at the final hearing.
The Tribunal finds that informal assistance by the spouse does not provide a less restrictive alternative for the management of the represented person's estate as it does not meet the needs of the represented person in respect of the management and protection of her interests. The spouse apparently has his own difficulties, including a tax bill which he says he cannot meet, and the reduction in his pension entitlement due to gifts made in the past to the children. In addition, throughout the hearings, the spouse has relied on the represented person or his son to prompt his memory when questioned regarding personal financial matters, including, for example, the year their property was sold, the amount of money gifted to their children, when his full pension is to be restored, and what cash and shares they own.

Both the represented person and her spouse appear to be heavily reliant on their son, but he is a flyin flyout worker and has periods away from home. In any event, although he states that the transfer of the property had been discussed for some months prior to his mother's admission to hospital, the son is in an apparent position of conflict regarding the estate of the represented person due to the transfer to him of her interest, which occurred within a few weeks of the represented person's admission to hospital, when it is agreed by all parties that her health had significantly deteriorated. The analysis by the son that the transfer was a 'debt for equity' arrangement does not address the question of the original contribution to the purchase price of the property made by the represented person (and her spouse) or how the represented person's interest can now be identified and secured for her future benefit.
The Public Trustee reports that the represented person's pension is collected and she is provided funds on request for the payment of accounts. The represented person says she is happy with the way the administration is operating and the spouse agrees that they can contact the trust officer by telephone as issues arise (T:56; 07.11.12).
The appointment of the Public Trustee, although originally opposed by the represented person, her spouse and her son, is now supported by them. The son spoke highly in the final hearing about the approach to, and the service provided to, the represented person by the Public Trustee's appointed case manager.
Because of the progressive nature of the represented person's condition, the administration order is confirmed for a period of five years.

Guardianship

As noted above, the parties agree and the Tribunal finds that the represented person is a person for whom a guardian may be appointed. The Tribunal finds that all paragraphs in s 43(1)(b) of the Act apply to the represented person.

Does the represented person need a guardian?

The applicants say that the represented person needs a guardian to accept services to monitor their mother's health, to make treatment decisions for her and to ensure she is able to have contact with them and her grandchildren due to the conflict that has developed between them and their father which might prevent contact.
Originally, the applicants said the house in which their mother is living was unsafe for her and she should move to residential care to ensure her care needs are met. The daughters concede that their mother and father made the decision to move to the property with their brother some six years ago. At the final hearing, although they maintain their view that the property is not safe and remains unsuitable given their mother's vulnerability to falls and her progressive condition, they do not press the issue that a guardian should be appointed to make a decision as to where the represented person should live. This is because of their mother's strongly expressed wish to remain living there and their wish to maintain their relationship with her.
In the final hearing, the represented person indicated that she believes she needs a guardian to determine the contact she has with others her daughters and her grandchildren.
The Public Advocate submits that a guardianship order should be made which appoints the Public Advocate with the functions of deciding where and with whom the represented person should live, consenting to services and medical treatment on her behalf, and determining the contact the represented person has with others.
The submission is that the current accommodation of the represented person does not meet her needs and there should at least be planning for a move to residential care. The Public Advocate refers to three serious falls suffered by the represented person in five years which required medical treatment, and the high risk, given her condition, of future falls.
In relation to services, the rejection by the represented person and the spouse of OT advice regarding the need for mobility aids to prevent falls was raised. In the final hearing, the Public Advocate referred to the OT's assessment of the property. The Public Advocate also referred to the OT's hospital notes dated 21 March 2012 (T:137; 07.11).
The OT's hospital notes record the following:
OT 21/3/2012
…
Liaised with [patient] and [patient's husband] re progress of home modifications. [Husband] reports bathroom finished and pathway to access is currently being finished, reinforced sand path is not ideal for a [four wheeled walker], can be an [increased] falls risk. [Patient] continued to ignore OT advice reporting would prefer to walk on sand, informed both [patient] and [patient's husband] [that] she would be at [increased] falls risk if they choose to decline OT advice. [Patient] and [patient's husband] aware and willing to take [the] risk. Reinforced to [patient] and [patient's husband] to use [four wheeled walker] at all times on [discharge].
The Public Advocate submits that there had been an agreement at the family meeting at the hospital that services be engaged for medication prompts and other domestic assistance prior to discharge of the represented person from hospital, but that these services had since been cancelled. The Public Advocate submits that these services were considered important by the hospital treating team and should be maintained. This is consistent with the view expressed by Dr P in the final hearing. The Public Advocate says such services act as 'an early warning system' to detect and report deterioration in a person's condition which can lead to earlier intervention by health professionals. It is said that this is preferable to a significant deterioration in the represented person's condition and her hospitalisation.
The function to make treatment decisions is sought because of what is described by the Public Advocate as the represented person's demonstrated lack of insight into her condition.
The spouse and the son do not agree that the represented person needs a guardian, as it is submitted she has a supportive spouse and her health has reportedly improved since her discharge from hospital. It is said that she is quite independent and manages her personal care, and monitors her own medications with some assistance from her spouse. It is argued that when Dr P reviewed the represented person on 30 August 2012, her health had improved, even though services which were said to have been required on her discharge from hospital had been cancelled on 31 July 2012.
It is submitted, for the spouse and the son, that contact with her daughters is not limited by the spouse, despite the breakdown in the relationship between the daughters and their father. It is submitted that the represented person's spouse has driven the represented person to their daughters' home to see them. The breakdown in the relationship between the daughters and their father is said to have occurred because of the 'unfounded' statements made by the applicants about the safety of the house, the deterioration in the represented person's condition and the supervision of her medications by their father. The applicants are said to have acted in an 'underhanded' way. The relationship between the daughters and the son has always been poor, according to the parties. The spouse says the daughters 'panicked' by reporting their concerns about their mother to hospital staff and making the applications to the Tribunal. The daughters say that by initiating their mother's admission to hospital they were responding to their father's concerns expressed to them, that their mother was not taking medications and was becoming ill. When asked in the hearing whether he could recall whether he had told his daughters, as reported by them, that the represented person was not taking the Zyprexa prescribed because she was 'scared it was going to kill her' (T:81: 07.11.12), he said '… they reckon I did but I don't reckon I did say it' (T:85; 07.11.12). The daughters agree that they told hospital staff that they thought their father had dementia. This is consistent with the evidence given by Dr M, part of which was read out in the final hearing. Although Dr M said in his evidence that initially the spouse had been reported by a 'third party' as having cognitive difficulties himself, Dr M said he could not remember in detail what he said about the spouse. He stated:
… there were things that just made us query his cognitive ability. We don't do that very commonly with most relatives. I mean, there's obviously leeway for people to be different but this wasn't that. (T:11; 07.11.12)
Both the spouse and the represented person say there is no need for the EACH service to monitor the represented person's medications, as they manage this themselves. However, they say that the services were not cancelled by them but, rather, they were advised by the carers that the service was not necessary. This is inconsistent with the evidence of the daughter, NE, who says she heard her mother on the telephone cancelling the service, and the report from the EACH service coordinator dated 19 October 2012 which states, in part:
… Client ceased the EACH package on the 31/7/2012. [The service provider] was advised by client & Husband that they were managing and did not require further assistance.
The represented person, her spouse and the son do not accept that the deterioration in her health and admission to hospital resulted from noncompliance with her medications, which is the position adopted by Dr P and Dr M (who says he was the admitting doctor), and that which is recorded in the hospital notes. The represented person says Dr B, the represented person's general practitioner, changed her medications in November 2011 and she followed that regime. Dr B was not called to give evidence.
Dr M's evidence at the hearing on 5 September 2012, when referring to his assessment of the represented person, said:
She did have short-term memory issues and she seemed to fixate on medications as being the cause of her problems rather than understanding the Huntington's disease process and thus she would stop taking medications that were aimed to improve the situation. So we attempted to change the medications to pacify her but there was no real improvement. I guess we also saw her making well, what we feel were calls of poor judgment, such as trying to go home or wanting to go home from the very start, even though there's clearly been a fall and issues surrounding her medications. On admission, and I believe I admitted her from the emergency department, I noted that the medications that she told me she was on pretty much did not in any way reflect the medications she was meant to be on and so I guess we felt that there was very little insight and very little judgment ability.
The represented person, her spouse and her son maintain the view that the represented person's health deteriorated, and her admission to hospital was due to exhaustion from caring for her daughter for nine weeks during the late stages of her daughter's pregnancy up until October 2011 before the birth of the baby in November 2011.
This view is not supported by other evidence. In his evidence of 7 November 2012, Dr P describes taking the history from the represented person, at a consultation in October 2011, of her exhaustion caused by taking care of her daughter. He refers to reviewing the represented person again in January 2012, and the son agrees that by that time she had improved (T:131; 07.11.12). However, Dr P states that by March 2012, she had 'reached crisis level and she needed to be admitted to hospital for treatment and involvement of the mental health team at Joondalup Health Campus' (T:23; 07.11.12).
Dr P confirms that, in his opinion, noncompliance with prescribed treatment caused the deterioration in the represented person's mental state to the point that she needed admission to hospital (T:31; 07.11.12).
Dr P describes the represented person's admission in March 2012 as:
… [S]he was in a very difficult clinical situation with extreme insomnia, paranoia, difficulty with speech, anxiety insomnia and difficulties with medications and we were able, fortunately, to stabilise her treatment and her general condition improved.
Despite this evidence, both the son and the spouse maintain the view that it was the care of her daughter which caused the deterioration in the represented person's condition.
In his evidence, Dr P said that he was 'alarmed' by the cancellation of services by the represented person which had been agreed to prior to her discharge from hospital. He stated:
… [T]he poor compliance with medication that led to her precipitation of admission and so that to me it is a concern and probably reflective of difficulties with understanding the condition and insight about the importance of taking medication and that's why we needed some, how shall I say, guarantee that [the represented person] was going to continue to take the tablets and there had to be an objective observer, not [a] family member to actually see [the represented person] take the tablets, to maintain her ability in the home and prevent her being admitted. (T:32; 07.11.12)
Dr P said that he was not asked by the service provider about the cancellation of its service. But if he had been, he would have 'recommended that it continue and not be withdrawn' (T:35; 07.11.12).
The Tribunal accepts the evidence of Dr P and Dr M about the reason for the represented person's admission to hospital, and finds that it was more likely than not that the deterioration of the represented person's mental state was caused by noncompliance with medication which led to her admission to hospital in March 2012, rather than exhaustion caused by the care of her daughter up until October or November 2011.
The Tribunal also prefers the evidence of the daughter and the service provider to that of the represented person and the spouse, and finds that the services were cancelled by the represented person and her spouse as they believed that the services were not needed by the represented person.
The Tribunal determines that the represented person needs a guardian.
Informal support from her family has not been sufficient to meet the represented person's needs in the past, and it is likely, given the nature of her illness, that her personal needs will increase in the future. The rejection of professional advice about the represented person needs by her direct carer (the spouse), the conflict within the family about the need for services, and the conflict about the appropriate accommodation for the represented person within the family, which will likely increase as her condition deteriorates, all support the need for a formal order. Because of the statements of the spouse in the final hearing regarding his attitude to his daughters, the Tribunal is not satisfied that the represented person's contact with her daughters and her grandchildren would be maintained without some outside intervention.

Who should be appointed guardian?

The appointment of the Public Advocate as guardian is sought by her representative because it is asserted that the spouse is unable to perform the function regarding maintaining contact with the daughters of the represented person.
It is argued on behalf of the spouse and the son that if a guardian is required by the represented person, her spouse should be appointed in that role. It is said that the appointment of the Public Advocate to determine where the represented person should live is too extreme. The son says that if his father is considered unsuitable for appointment then he should be appointed as guardian.
The appointment of the spouse as guardian is consistent with the wishes of the represented person expressed in the hearing and as reported by the Public Advocate. It is accepted, as is submitted for the spouse, that his relationship is the most important one in the life of the represented person, and support for this relationship is consistent with the legislation to maintain the supportive relationships of the represented person.
Although the Tribunal accepts the Public Advocate's observation that the spouse and all family members are devoted to the represented person, the Tribunal also accepts the submission that there is no one within the family who is suitable for appointment as guardian, and the appointment of the Public Advocate is in the best interests of the represented person.
The applicant daughters originally sought their own appointment as guardians but in the final hearing, gave their support for the appointment of the Public Advocate. Even if they were willing to be appointed, their appointment would be inappropriate, given the antagonism between them and their brother and the breakdown in their relationship with their father. Because of this, their appointment as their mother's guardian in the present circumstances would be unworkable.
The Tribunal does not find the spouse or the son suitable for appointment as guardian of the represented person.
The spouse is not suitable for appointment as guardian because the Tribunal finds he does not appreciate the implications of the represented person's illness, does not accept her decision-making is impaired, or that her illness makes her dependent on others to make decisions in her best interests. The spouse says he does not 'believe' the evidence of Dr P regarding the represented person's incapacity (T:79; 07.11.12). He does not accept the need for services as he says that the represented person does everything herself, including managing her medications, with some support from him. He says he does not accept the OT's opinion that the represented person is a 'falls risk'. He says '[the represented person's] balance is perfect' (T:78; 07.11.12). In relation to the OT's assessment of the house after the sand had been compacted around the house and a rail installed, the spouse reports, 'There's nothing wrong. It's perfect' (T:79; 07.11.12). This is despite the OT's hospital record notes dated 21 March 2012 referred to in the final hearing by the Public Advocate.
At the final hearing, the spouse stated that he had accepted the advice of a man he met in the street, who he could not name but who he believed was an expert, that the represented person did not need the walker recommended by the OT and that her balance would improve if she did not use it (T:155; 07.11.12). He did not see any difficulty in preferring this advice to that of the hospital's OT, who knew the represented person's history and had formally assessed her, and had given explicit advice according to the hospital notes that the represented person should use the walker at all times following discharge from hospital and would be at an increased risk of falls if she did not. The spouse did not accept that there should be any further OT reassessment of the represented person.
The spouse rejects the professional advice about the represented person's risk of falls and her need for services. This is illustrated in his 'acceptance of the risk' associated with refusal of the walker to prevent falls and his denial of any 'falls risk' associated with the property in which they live. His relationship with his daughters has broken down because they raised these concerns about the represented person's safety.
Despite the consistent medical evidence about the reason for the represented person's hospital admission, the spouse maintains a position that is not supported by the evidence. Aligned to this is his failure to appreciate the need for ongoing assistance and support for the represented person to monitor her medications. The spouse does not support the need for medication prompts and does not support the continuation of services which Dr P says are recommended to safeguard the represented person from noncompliance with her prescribed medication.

Despite agreeing to services prior to her discharge from hospital, the spouse insists on the represented person's independence for all activities of daily living. He argued in the first hearing that she was capable of driving (despite medical advice to the contrary), and that he relies on her to navigate when he is driving.
Although it is accepted that the spouse has taken the represented person to visit his daughters, the conflict between them is clear. He says he has a problem with them visiting the house and says they are 'only coming looking for trouble' (T:103; 07.11.12). The represented person herself was of the view that she needed a guardian to ensure she was able to see her grandchildren.
Although the spouse's reliance on others to prompt his memory was manifest in the hearings, he denies he has any difficulties. He produced a report from Dr KB, his general practitioner, following a Mini Mental State Examination (MMSE) which states that the spouse does not have dementia and that he is capable of caring for his wife. The spouse says he had undergone a MMSE and had scored 29/30.
Although the Tribunal accepts Dr KB's opinion that the spouse has not been diagnosed with dementia by him, in both hearings attended by him, the Tribunal finds the spouse had difficulties with his memory in the hearings. He frequently said he could not remember when asked for information, or asked others to prompt his memory. Although Dr M was identified (by the represented person and her spouse) as the treating doctor in the first hearing, when responding to Dr M's evidence in the first hearing, the spouse said that he 'never ever spoke' to Dr M (T:13; 07.11.12).
Regarding the proposal of the son that he be appointed as guardian as an alternative to his father, this is not accepted as appropriate. The level of conflict between the children of the represented person is clear from their conduct in the hearings. This conflict, in itself, would make him unable to manage the contact function.
In relation to services, the son says that the services should be 'scaled back', and he complained about the value of the service as opposed to its cost (T:114; 07.11.12). As he is a flyin flyout worker and absent for periods, it is understood that he relies on the advice of the represented person and her spouse about these matters. He did say that if the services are considered essential, he would pay for them, but he did not concede the services are needed. When Dr P's statement that he was 'alarmed' at the cancellation of services was put to the son, the son said that Dr P was not aware of how his parents managed on a daily basis (T:135; 07.11.12).
The son said that his parents had come to the view about the cancellation of services themselves, and although he thought the services were 'good', he would not overrule his parent's decision (T:114; 07.11.12).
The son also appears not to accept that the represented person has impairments of decisionmaking, despite the unequivocal evidence in three reports provided by Dr P, and Dr P's oral evidence. The son asked Dr P, in regards to a further assessment of his mother by a geriatrician, to 'clear up any doubts as to mum's ability and what she can and can't do' (T:29; 07.11.12). Despite this and his calls for further assessment of the represented person's capacity, the son agrees he had been involved in the decision of the represented person not to attend appointments made for assessments by the Neurosciences Department following the first hearing. Initially he said that this was because of transport problems but later conceded that this was not the case (T:119; 07.11.12). His lack of acceptance of his mother's impairments and his unwillingness to challenge his father's decisions means that he may not appreciate the need to make protective decisions, and is therefore not suitable for appointment as his mother's guardian, quite apart from his hostility to his sisters.
For these reasons, the Tribunal determines there is no one suitable for appointment as guardian from within the family of the represented person and appoints the Public Advocate as limited guardian.
Although it is submitted by the Public Advocate that the functions of the guardian should include decisions as to where the represented person should live, the Tribunal is bound to make the least restrictive order possible in the circumstances and to have regard to the wishes of the represented person. Although it is accepted that the house in which she lives does present risks to her as identified in the OT's assessment, the represented person was discharged to her home by the hospital, and her strongly expressed wish is that she continue to live at the property. There appears no proposal, or immediate need, for her admission to residential care. Further assessment of the home modifications undertaken by the son at the property may be required to ensure that the risks to the represented person as indicated in the OT's hospital notes are minimised.
The appointment of the Public Advocate for one year with the functions to determine the services to which the represented person should have access, to make treatment decisions and to determine contact, addresses the immediate needs of the represented person for supervision of her medication, for treatment decisions which take account of her impairments and certainty about contact with her daughters and grandchildren. The longer term need for planning for accommodation into the future can be addressed at the periodic review of the order, or earlier, on application for review, if there is a need.

Orders

GAA 1045 of 2012

1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)To determine what contact, if any, the represented person should have with others and the extent of that contact;
(b)To determine the services to which the represented person should have access; and
(c)To make treatment decisions for the represented person.

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.This order is to be reviewed by 30 November 2013.

GAA 2049 of 2012

1.The order is confirmed as follows:
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 Guardianship and Administration Act 1990 (WA).
2.Noting the undertaking of [the son] to provide to the Public Trustee bank statements of his bank account which show the transfer of $50,000 to the bank account of [the represented person and her spouse] within 28 days and if he fails to do so the Public Trustee is at liberty to apply for directions pursuant to s 74 of the Guardianship and Administration Act 1990 and to seek orders pursuant to s 35 of the State Administrative Tribunal Act2004 (WA) for production of the banking records of [the son].
3.This order is to be reviewed by 7 November 2017.

I certify that this and the preceding [86] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER