GB
[2020] WASAT 61
•9 JUNE 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: GB [2020] WASAT 61
MEMBER: MS F CHILD, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 9 JUNE 2020
FILE NO/S: GAA 4053 of 2019
GAA 4624 of 2019
GB
Represented Person
Catchwords:
Guardianship and administration - Application for appointment of administrator and review of guardianship orders - Represented person with moderate cognitive impairment - Ongoing family conflict about where the represented person should live and contact she should have with others - Reappointment of Public Advocate as guardian of last resort with these functions - Reappointment of daughter as guardian for treatment and services consistent with wishes as expressed by past practice - Appointment on condition that undertaking given to communicate hospital admissions to other family members - Existing enduring power of attorney operating - No need for administration order
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(7), s 44(5), s 45, s 51, s 87, s 107, s 107(2)(b), s 109(1)(a), s 110ZD, Sch 2, Pt B(h)
Result:
Public Advocate appointed as limited guardian
Private guardian appointed
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
These are the reasons for the decisions made on applications filed with the Tribunal in respect of GB (the represented person) heard on 4 March 2020.
Background
The represented person is an 89 year-old widow. She has eight children. The represented person suffered a stroke in 1998. An Aged Care Assessment completed for the represented person in 2014 refers to a diagnosis of vascular dementia, short-term memory problems and multiple other health problems. The represented person is now diagnosed with a moderate cognitive impairment.
After her stroke the represented person lived in her own home until it was purchased by her son, C, who with his family, had moved in to her home to care for her. In 2002 she moved to live with her daughter, CG, and has been cared for in CG's home since that time by CG, her family and other family members as paid carers.
On 14 November 2012, the represented person executed an Enduring Power of Attorney (EPA) witnessed by a general practitioner by which she appointed her daughter, CG, as her sole attorney.
On 5 January 2017 the represented person executed an Enduring Power of Guardianship (EPG) witnessed by a general practitioner by which she appointed CG as her enduring guardian.
An application seeking the appointment of a guardian for and an administrator of the represented person's estate was made in October 2018 by A, one of the represented person's six sons, proposing himself for appointment as administrator and guardian.
That application was heard on 9 April 2019(the original application). The represented person and some of her eight adult children attended. The Public Advocate had undertaken an investigation of the application referred by the Tribunal and the investigator produced a report and made submissions.
In orders made on 9 April 2019 the Public Advocate was appointed limited guardian to make decisions about where and with whom the represented person should live and to determine the contact she should have with others.
The member who heard the original application found that there was conflict among the family members about these issues and that an independent guardian was needed to make decisions in the best interests of the represented person. The conflict between family members was acknowledged by the C who is the current applicant who referred to the Public Advocate as acting as a 'referee' between them (ts 71, 9 April 2019).
CG was appointed limited guardian to make treatment and services decisions. Less restrictive options under s 110ZD of the Guardianship and Administration Act 1990 (WA) (GA Act) were considered and rejected by the original member because the manifest conflict in the family could create uncertainty for health care providers in treatment decision-making for the represented person (ts 68, 9 April 2019).
The EPG was revoked. In the hearing it was conceded for CG that the represented person may not have been capable at the time of the execution of the EPG (ts 64, 9 April 2019).
The application for the appointment of an administrator was dismissed. The original member describes the EPA submitted at hearing as 'arguably a valid EPA' (ts 40, 9April 2019) and determined that in the circumstances of the represented person, the EPA was operating as a less restrictive alternative to the making of an administration order.
The guardianship orders were set for review by 8 April 2024.
Current applications
The present application was filed by C, another son of the represented person on 25 October 2019 pursuant to Sch 2, Pt B(h) of the GA Act. As the represented person did not have an administrator of her estate that application was listed for directions to determine the nature of the orders sought.
Following a directions hearing before the case management member on 20 December 2019, orders were made treating the application as:
a)an application for the appointment of an administrator of the represented person's estate, and
b)an application for leave (pursuant to s 87 of the GA Act) to apply for review the guardianship order made on 9 April 2019.
Leave was granted to the applicant to apply for review and other case management orders were made: CG as the limited guardian for treatment and services decisions was ordered to file a statement concerning the represented person's medical treatment and services and how the services are funded.
The Public Advocate was ordered to file a report setting out the decisions that have been made concerning the represented person's accommodation and the contact she has had with others.
The delegated guardian of the Public Advocate (guardian) notified the Tribunal that she would be unavailable for the hearing listed on 4 March 2020 by email dated 30 December 2019. It appears that this communication was not referred to the member managing the file at that time and the email was identified by the presiding member only upon review of the correspondence on the file for the preparation of these reasons.
In the current applications the applicant, C, is seeking his appointment as an administrator of the represented person's estate and proposing the current guardianship orders be revoked, and that he be appointed as guardian, either solely or jointly with one of his siblings or his wife. The applicant notes that long-term decisions need to be made concerning the guardianship of the represented person, and immediate decisions are required regarding her medical care, living arrangements and her ability to spend time with all of her family.
The represented person did not attend the hearing on 4 March 2020. The applicant and CG were both legally represented and they and a number of other family members attended the hearing. A representative of the Public Advocate also attended.
There was insufficient time to complete the hearing of the applications, and the matters were adjourned for the parties to file written submissions after which time the Tribunal would either determine the applications on the papers or reconvene a hearing at its discretion.
The Tribunal has not found it necessary to hear further oral evidence, and has considered the material filed in this matter and the evidence given at the hearing on 4 March 2020 together with the transcript of the original hearing on 9April 2019.
Evidence and material before the Tribunal
The written material before the Tribunal includes documents filed in compliance with the directions made in December 2019:
a)documents filed by CG as 'medical guardian' setting out the represented person's daily routine, care requirements, the treatment and services to which the represented person has access, a report from the service provider regarding the represented person's government funding, annotated bank statements on the represented person's bank account and a schedule of expenses;
b)an excerpt from the physiotherapist's report from the visit on 5 February 2020;
c) a table of 'conflicted siblings' appointments;
d)personal statement filed by CG; and
e)a report from the Public Advocate's guardian (guardian) filed on 24 February 2020
It is argued for the applicant that the Tribunal should disregard the report of the guardian because it is said there are inaccuracies in the report. The applicant's counsel asked that the Tribunal have no regard to the report because the reliability of the guardian's report is challenged and if the Tribunal relies on the report it would be misled.
An adjournment was sought so that the guardian could be questioned about the report.
Although the guardian's report may be incomplete or inaccurate in some respects as counsel for the applicant contends, or alternatively the recollection of the applicant may be incomplete or inaccurate regarding some matters, the Tribunal did not consider it necessary to resolve any conflict. Some of the issues raised by counsel are not material to the matters which the Tribunal must determine on review of the guardianship order. In relation to other statements in the report challenged by counsel, the Tribunal does not have to rely on the guardian's report alone but has other sources of information including statements from family members, professional reports from the geriatrician, occupational therapist (OT) and service providers referred to in the guardian's report before it. For example, the account of the hospital incident referred to in the guardian's report challenged by counsel for the applicant as being inaccurate is conceded by another member of the family, J, in her written submission. J's submission acknowledges that there was a heightened exchange between two family members at the hospital when the represented person was admitted. The guardian reports that she was contacted by hospital staff about this incident. The applicant acknowledges that the conduct of the family members was not appropriate in the hospital setting.
The Tribunal did not consider it necessary or appropriate to disregard the report for the purposes of the review or to adjourn for the guardian to be questioned about the contents of the report.
In addition to the reports filed by the guardians the Tribunal has considered the following material:
•the application filed;
•final submissions from the parties;
•submissions from family members; and
•correspondence from family and friends of the represented person.
The family submissions include an email dated 19 February 2020 received from T, the daughter-in-law of the represented person and her day time carer of five years who supports the role of CG as the decisionmaker for the represented person.
A report from Dr EJ, a geriatrician dated 19 February 2020 notes that the represented person has suffered physical and some cognitive deficits since her stroke in 1998. A Mini-Mental State Examination (MMSE) performed in 2013 revealed a MMSE score of 27/30 which is understood to be a near 'normal' score. The doctor says that the represented person now has a moderate cognitive impairment with worsening cognition that may represent a superimposed progressive dementia or subsequent vascular events.
Dr EJ reports that when interviewed alone by her the represented person said she was happy living with her daughter and did not want to move. The represented person is reported as saying she found disputes within her family distressing. The report notes the represented person has had admissions to hospital in 2019 for heart failure and pneumonia.
An OT assessment dated 27 March 2019 reports the bathroom at CG's home continues to meet the represented person's current needs. Recommendations are made for modifications to ensure ongoing safety. A submission from RG (the represented person's son-in-law and CG's spouse) states that professional advice has been obtained about bathroom modifications should these be required.
A report of the service provider who provides personal care, respite domestic assistance and day activities for the represented person notes that the represented person has multiple medical problems, limited capacity to manage her finances, is not be able to participate during wellness visits and annual reviews but is accepting of support services. The report notes that the represented person lives with her daughter CG and extended family. According to the service provider, the environment is 'set up to suit the client's needs'. A hospital bed and sensor mats are noted to be in situ with grab rails throughout the home. The report goes on to say that 24-hour support is provided for the client to remain living at home safely. The report concludes that that the client is not felt to be at risk.
The assertion by counsel for the applicant that the Aged Care Assessment is now outof-date was answered by the Public Advocate's representative at the hearing and the Tribunal is satisfied that the applications before the Tribunal can be determined on the material before it.
To determine the current applications the Tribunal must consider the following matters:
a)Is the represented person a person for whom an administration order may be made? Does she need an administrator of her estate? Are there less restrictive alternatives to the appointment of an administrator? If not, who should be appointed in that role?
b)Does the represented person remain a person for whom a guardian may be appointed, does she need a guardian? Who should be appointed? Is there anyone suitable or willing to be appointed as guardian other than the Public Advocate?
c)In all proceedings brought under the GA Act the Tribunal must act in accordance with the principles set out in s 4.
Capacity
The incapacity of the represented person to make reasonable judgments about her person and her estate was not in issue at the hearing or in the material filed. None of the parties challenges the earlier finding of the Tribunal made at the original hearing that the represented person is incapable of looking after her own health and safety, unable to make reasonable judgments about her person, and is in need of oversight and care in the interests of her own health and safety.
The medical and professional evidence is that the represented person has moderate cognitive impairment. None of the parties takes issue with the opinions given that the represented person lacks capacity to make reasonable judgments about her estate by reason of that cognitive impairment.
The Tribunal is satisfied that the presumption of capacity of the represented person is displaced and that she is a person for whom both a guardianship and administration orders may be made.
Need for orders
Administration
In the final written submission it is said that the applicant seeks his appointment as administrator because there has been a breakdown in trust between the applicant and CG. He says that a few months after the April 2019 hearing, CG acting as attorney removed her brothers, C and J, from access to the represented person's bank accounts.
In the original hearing, CG had said she had no difficulty with her brothers having access to the bank accounts (ts 29, 9 April 2020). The applicant asserts that CG cut off access to the bank accounts because the bank statements had been used in the original hearing in an effort to discredit her.
In CG's submissions filed in this proceeding she says she removed C and J's access to the represented person's bank accounts as they had withdrawn funds from the account to pay the represented person's (and J's travel costs as a carer ) but that the represented person had not travelled. CG says the sons have not refunded the funds withdrawn despite her requests.
The removal of C and J's long-standing access to the represented person's bank accounts is within the authority of CG acting as attorney for the represented person. This action may have been motivated by anger in response to the original application filed with the Tribunal as submitted by the applicant and does reflect a further deterioration in the relationships. However it is arguable that this action is consistent with an attorney's obligation to act with reasonable diligence to protect the interests of the donor as required by s 107 of the GA Act. As the attorney appointed under the EPA, CG must maintain records of all transactions made under the EPA (s 107(2)(b) of the GA Act). If ordered to do so an attorney must file those records pursuant to s 109(1)(a) of the GA Act. Persons with informal access to a bank account are not subject to the same accountability requirements.
In the original hearing, the applicant sought a change in financial decisionmaking from CG acting under the EPA and the appointment of an administrator because of concern about restrictions on visits to the represented person (ts 15, 9 April 2020). The withdrawals from the represented person's bank account challenged at that time did not persuade the member that anything inappropriate was occurring in the operation of the represented person's bank account. The payment of a carer was also raised but the main concern raised was the lack of contact with the represented person by some members of the family (ts 45, 9 April 2020) and that CG was exercising (decisionmaking) control alone (ts 23, 9 April 2020). It was not said that the represented person was subject to financial exploitation and the family members did not express concerns about the financial management of the represented person's estate.
Although the relationship between C and CG has deteriorated further, the financial arrangements of the represented person are essentially the same as they existed at the time of the original hearing. The represented person does not have any real property and only has a pension income. The management of her estate is straightforward with the payment of her board, carer and incidental expenses including medical and personal care costs.
It is argued for CG that no evidence has been put before the Tribunal suggesting any misconduct or questionable transactions by CG. In submissions filed on behalf of CG, it is submitted that the EPA executed by the represented person is sufficient to meet her needs.
When determining an application for the appointment of an administrator the Tribunal must consider whether the needs of the represented person may be met in less restrictive ways (s 4(4) of the GA Act). The Tribunal must also ascertain the wishes of the represented person as expressed or gathered from her past actions (s 4(7) of the GA Act).
The Tribunal adopts the reasoning of the original member that the EPA does reflect the wishes of the represented person expressed at that time and provides a less restrictive alternative to the making of an administration order in the circumstances of the represented person.
The written submissions confirm the position advanced by counsel for the applicant at the hearing that the appointment of an administrator is required only if there is a change of guardian (ts 14, 4 March 2020). It is argued that the person managing the finances should be the same person as the appointed guardian. For the following reasons, this issue falls away.
Guardianship
The applicant seeks the revocation of the current orders and for his appointment as guardian, either solely or jointly with his wife or one of his siblings.
The applicant says that CG limits contact with the represented person to certain family members and his appointment as guardian will result in the represented person moving to his home, where access to the represented person will be provided to all members of the family.
The applicant says only his home is set up to care for the represented person and that he can provide full time care at home which would avoid the represented person attending day time respite, which he argues limits family time with the represented person.
It is said the represented person has deteriorated and that the bathroom of CG's property is unsafe (for the represented person).
In the original hearing the applicant said he had the 'best facilities' to care for the represented person (ts 32, 9 April 2019). He may be correct in this but his assertion that only his home is a suitable environment for the represented person is not supported by the report of the service provider or the OT assessment. The Tribunal places greater weight in respect of this matter on the professional reports rather than on the views of the applicant.
The Public Advocate's representative reports that the Aged Care Assessment Team's (ACAT) assessment determines the level of care needed, whether at home or a residential care facility. The representative reported that once the ACAT has been completed, unless there is a significant change, generally they are not redone. The representative advised that there was no record of a further request for an ACAT assessment by the geriatrician following the represented person's hospital admission in 2019.
The Tribunal accepts the evidence that the accommodation at CG's home is assessed as meeting the represented person's current needs.
CG's maintains that the represented person should remain living with her family as the represented person made this choice in 2002 and has lived there continuously since. Some members of the family support this view and the quality of care provided to the represented person by CG and other family members including T have written to the Tribunal in support of this position. The applicant also acknowledged the care provided to the represented person by CG in the hearing.
Both the applicant and CG strongly assert that their accommodation proposal is in the best interests of the represented person.
The applicant asserts that the guardian has not given proper consideration to accommodation proposals made by him that the represented person should live with him.
It is also said that the guardian did not communicate with the applicant or respond in a timely way to requests from the applicant or some of his siblings.
As noted in the hearing it is not the role of the Tribunal to monitor the performance of the delegate of the Public Advocate.
Contact
In the original hearing, the current applicant spoke warmly about past family gatherings at CG's home describing CG as 'the centre of the family' and that they 'all went there'. He described a deterioration in relationships in the 'last two to five years' and said 'It's not somewhere that we feel comfortable being anymore'. He described the family as 'divided' (ts 36, 9 April 2019).
Relationships were at a point where one sibling called the police to attend CG's home in December 2018 because another sibling had been verbally abusive to him on the telephone from that address (ts 24, 9 April 2019).
Arising from this, CG says she does not wish her brothers, A, J or C to be inside her house because it is said they bully and harass her and the represented person witnesses this and is distressed by it. Dr EJ's report notes that the represented person is aware of the conflict between her children and is distressed by it.
The conflict between family members was acknowledged by the parties in the original hearing.
The applicant agrees that there had been tensions between two camps of the children of the represented person which pre-dated the previous applications.
The written material before the Tribunal demonstrates that the family was and continues to be divided into two camps, those who support the applicant and those who support CG.
In the hearing of the current applications, the applicant attempted to explain why the previous application had been made and said :
[a]ll eight of us are almost impossible to get together. And when we do and we start talking about things that have emotion, it becomes an argument. Heated words are exchanged.
(ts 35, 4 March 2020)
CG asserts that some family members including the applicant have greater contact now than they had in the past, as they, and in particular the applicant, did not take up the option to participate in a roster developed in 2017 so that all family members might have contact with the represented person.
The applicant says that CG is unsuitable to be appointed guardian because she is diminishing contact with other family members and will not negotiate contact informally.
Whether CG will discuss contact informally with other family members is not to the point since Public Advocate exercises this function for the represented person.
It is a matter for the delegate of the Public Advocate, not CG, to determine the contact the represented person has with others and the extent of that contact. The delegated guardian reports that extensive contact decisions have been made noting the competing demands on the represented person's time for participation in family events. The guardian notes taking advice from health professionals and from CG as the medical guardian regarding contact decisions, however the ultimate decision is that of the guardian.
The Public Advocate is the guardian of last resort (s 44(5) of the GA Act). The appointment of the Public Advocate can only be made if the Tribunal determines that there is no one else suitable or willing to be appointed as guardian (s 45 of the GA Act).
In respect of where the represented person should live and the contact she should have with others, although these issues appear to have caused conflict only in recent years (bearing in mind that the represented person has lived with CG for 18 years), the Tribunal accepts the submission of the guardian that the conflict now appears intractable.
In the Tribunal's view in these circumstances there is no one from the represented person's family who is suitable for appointment as the represented person's guardian to exercise these functions.
In the circumstances of unresolved conflict about such fundamental issues for the represented person, the reappointment of the Public Advocate as guardian to make decisions regarding accommodation and contact decisions for the represented person is inevitable.
There being no one else suitable for appointment the Public Advocate is re-appointed with these functions.
Medical treatment and services
CG says that the represented person benefits from attendance at the day time respite. T says that the represented person has a wellestablished routine and it is in her best interests for this to be maintained.
Nothing in the report of the geriatrician, Dr EJ, dated 20 February 2020, which records the multiple health problems of the represented person, indicates any support for the contention that the health care needs of the represented person are not met in the current arrangements with CG as her primary carer and guardian to make treatment decisions.
The appointment of CG as the guardian for treatment and services was identified in the original hearing as necessary as the operation of the less restrictive alternative of s 110ZD of the GA Act would be impractical and not in the best interests of the represented person. This remains the position. There continues to be too much conflict in the family to rely on informal decisionmaking.
The reappointment of CG as the limited guardian is a practical response to the need for a medical and services decisionmaker since CG is the primary carer of the represented person. It is also a less restrictive order than the appointment of the Public Advocate. CG's appointment is the Tribunal finds consistent with the wishes of the represented person as expressed through her past actions.
It is argued that the represented person's wishes are variable. At the original hearing the presiding member spoke to the represented person on her own. The member noted that the represented person expressed differing views in a short period of time and the member came to the view she was not able to form a conclusion as to the represented person's wishes at that time.
On the other hand, there is the report from the geriatrician from her interview with the represented person in 2020, the report of the guardian who states that the represented person was asked on three occasions about her wishes, and the execution in the past of an EPA and EPG in favour of CG. Although submitted in support of CG there are submissions filed by family and friends which refer to the presentation of the represented person when at CG's home.
Even if the Tribunal were to disregard all of these reported expressions of the represented person's wishes as unreliable, the Tribunal is driven back to the represented person's past actions: that she moved to live with CG and her family 18 years ago and has remained there in the intervening time.
All family members have expressed their love and concern for the represented person in hearings before the Tribunal and in written submissions. Although they may not have a role as decisionmakers for her it is reasonable that they be informed about the represented person's health by CG as the 'medical' guardian.
If it is the case that CG has failed to advise family members of the represented person's admission to hospital in 2019 this is not appropriate as it does not meet her obligation to maintain supportive relationships of the represented person as a guardian acting in the best interests is bound to do (s 51 of the GA Act). To provide reassurance on this point if it is necessary CG's appointment as 'medical' guardian will be conditional on her giving a written undertaking to the Tribunal within 14 days of the date of this order to communicate without delay to a nominated family member who can then communicate to other family members, any hospital admission of the represented person, and to notify at the same time the Public Advocate so that any contact issues which may arise in the hospital setting can be managed by the guardian of the represented person exercising that authority.
The represented person has a progressive condition. In view of that and the continuing conflict between family members it is the finding of the Tribunal that she will need substitute decision-makers in the longerterm.
For these reasons the Tribunal makes the following orders.
Orders
The Tribunal declares that the represented person is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.
The Tribunal orders:
1.The administration application is dismissed.
The guardianship order dated 9 April 2019 is now amended so that it now reads:
2.On condition that CG of [address] is appointed limited guardian of the represented person with the following functions:
(a)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA); and
(b)To determine the services to which the represented person should have access.
3.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is 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; and
(c)To determine what contact, if any, the represented person should have with others and the extent of that contact.
4.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.
5.The guardianship order is to be reviewed by 5 June 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
9 JUNE 2020
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