GY - [2005] WASAT 186

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: GY [2005] WASAT 186

MEMBER: MS D DEAN (MEMBER)
MS F CHILD (MEMBER)
MS C HILL (SENIOR SESSIONAL MEMBER)

HEARD: 21 MARCH 2005
8 APRIL 2005

DELIVERED : 28 JULY 2005

FILE NO/S: GUO 301 of 2004

BETWEEN: GY
Represented Person

Catchwords:

Guardianship and Administration Guardianship - Intellectual disability Need for a guardian - Medical consent - Contact with others Prenuptial agreement Wishes and Best Interests of the represented person

Legislation:

Guardianship and Administration Act 1990 (WA), s 41(1), s 43, s 51 and s 119

State Administrative Tribunal Act 2004 (WA), s 167(4)(a)

Result:

Limited guardians appointed

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary

The sister of a woman with an intellectual disability made an application for the appointment of a guardian for her. The reason for the application was the assumption of control over the life of the woman by an advocacy group, including the arrangement of a secret marriage and the execution of a prenuptial agreement, of which it was agreed that the woman had little understanding. The Tribunal appointed two family members joint limited guardians with the following functions: to consent to medical treatment of the woman, to determine the contact she should have with others, and to seek legal advice regarding the consequences of the execution by her of the prenuptial agreement.

Background

The application for the appointment of a guardian for GY, was made by AC, the sister of GY (for the purposes of these reasons, the represented person).
The written reasons for the decision of the Tribunal in this matter are prepared at the request of MP, who identifies herself as the coordinator of Citizens Advocacy Eastern Suburbs (Inc.) and who stated she has known the represented person for 20 years. Citizens Advocacy is described by MP in correspondence to the Tribunal as a "non-profit and non-government organization", which "defends the … rights of people with disabilities whose wellbeing is at risk".
The role played by Citizens Advocacy in the life of the represented person is the reason given by the applicant for bringing the application for guardianship of her sister and to which we will refer later in these reasons.
As required in guardianship and administration matters, the name of the represented person and the names of family members and identifying information will be anonymised to protect her privacy.
The application was lodged with the Guardianship and Administration Board (the Board) on 1 December 2004.
The State Administrative Tribunal absorbed the jurisdiction and functions of the Board on 24 January 2005.
As the hearing of the application in respect of GY had not commenced before that date, the application was transferred and heard before the Tribunal pursuant to s 167(4)(a) of the State Administrative Tribunal Act 2004 (WA).
The hearing was commenced and adjourned on 21 March 2005. The adjournment was sought by MP as she and JB, a member of Citizens Advocacy, who had been appointed by the organisation as the "advocate” for the represented person, had not received the statutory notice of 14 days of the hearing as required by s 41(1) of the Guardianship and Administration Act 1990 (WA) (the Act). MP also sought a delay in the hearing to prepare a written submission as to her views of the best interests of the represented person.
Family members at the hearing opposed the adjournment, but as MP and JB were accepted as interested parties under s 41(1), and there were no exceptional circumstances to warrant the shortening of notice under s 41(3), the hearing was adjourned and reconvened on 8 April 2005.
The new hearing date was announced to all the parties present at the adjourned hearing, and no objection was made to the new date.
A further request for an adjournment was received at the Tribunal on 22 March 2005 and referred to the Presiding Member on 4 April 2005.
Given that MP, the applicant for the adjournment, had been present with all the other parties at the hearing, at which the date of the new hearing had been announced, the request for an adjournment was refused and the hearing proceeded on 8 April 2005.
Those present at that hearing were the following persons:
GY, the represented person
AC, her sister and the applicant
JP, her sisterinlaw and proposed joint guardian
LC, niece of the represented person
MM, area manager, Activ Foundation
CS, health supervisor, Activ Foundation
EY, brother and guardian of DY, the spouse of the represented person
MB, sister and guardian of the spouse of the represented person
JB, the "advocate" appointed by Citizens Advocacy for the represented person
BT, representative of the Office of the Public Advocate (the Public Advocate).

Applications and evidence

The applicant sought orders pursuant to s 43 of the Act for the appointment of herself jointly with her sister-in-law, JP, as guardians for the represented person.
The written application stated the following:
"[GY] lives in an Activ Foundation group home. In February 2004 [GY] was taken from her home and married to [DY] without the knowledge of her family or Activ Foundation. In October 2004, the family discovered that [GY] had signed a pre-nuptial agreement, again without the knowledge of family or Activ. We seek guardianship to protect [GY]'s best interests. We further seek to prevent others from wielding influence over [GY]. We do not believe [GY] would have fully understood either the responsibility marriage entails or the pre-nuptial agreement. We also have reason to believe that the secrecy surrounding the above events had a detrimental effect on [GY] as she was told and encouraged to be secretive and to keep information from her family and carers. The person involved in the marriage and pre-nuptial agreement continues to contact [GY] by phone and the family previously spent many hours in discussion with her asking her to cease her involvement in any marriage arrangements or discussions around marriage. She continually ignored these requests. The family seeks urgent guardianship orders in order to assist [GY], who they insist is still under pressure from others outside of the family. This person has no official standing either in the family or outside of it".
The application was accompanied by a medical report from Dr TC, general practitioner, and the report of MM referred to below. According to Dr TC's report dated 19 November 2004, he had known the represented person for two years and reported her to have an intellectual disability. He stated that the represented person was incapable of making decisions about her personal health care, her living situation and her financial affairs.
The report of MM dated 29 November 2004 states that the represented person "has an intellectual disability and has been a client of Activ Foundation for many years. [GY] lives in 24 hour supported accommodation provided by Activ Foundation and shares this home with several others as well as [DY] her husband".
The report went on to state the following:
"[GY] can follow instructions. Does appear confused at times or unsure of the responses she should make to questions. Her conversation is limited often to her own interests & she does not always converse appropriately.
She does not manage her own affairs. [She] [n]eeds staff input in making day to day decisions. It is necessary for a guardianship order to be made because [GY] does not understand the import [of] or even remember signing documents such as the pre-nuptial agreement … "
The application and the reports were referred to the Public Advocate for investigation prior to the hearing, and the subsequent report of the Public Advocate and the application were tabled at the hearing. The Public Advocate's report identified issues in the life of the represented person that were relevant to the question of guardianship. Those issues are dealt with below.

Consent to medical treatment

The evidence given at the hearing by MM and the applicant is that, since the death of the represented person's mother two and a half years ago, the applicant had been the person approached by Activ Foundation staff regarding medical issues for the represented person.
The Public Advocate reported that the represented person was experiencing gynaecological problems and that surgical intervention may be one option to treat her condition. The Public Advocate had discussed this with the applicant and the proposed joint guardian, and was satisfied that they were aware that less intrusive options should be explored first. If surgical intervention was considered necessary, consent would be required for that treatment.
The Public Advocate referred in her written and oral submissions to s 119 of the Act by which consent for medical treatment of incapable patients may be sought from persons in a hierarchy, set out in s 119(3) of the Act.
Section 119(3) of the Act provides:
"For the purposes of subsections (1) and (2), the person who may consent to treatment is the first in order of priority of the following persons
(a)a guardian of the person needing the treatment;
(b)the spouse or de facto partner of the person needing the treatment;
(c)a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so;
(d)a person who is the nearest relative (other than the spouse or de facto partner) of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment;
(e)any other person who maintains a close personal relationship with the person needing treatment; or
(f)a person prescribed in the regulations."
The Public Advocate noted that the spouse of the represented person was the first in order of priority in the hierarchy, but that due to his own intellectual disability and dementia, he could not play a role in giving consent to treatment of the represented person.
She submitted that, as the less restrictive alternative for consent to medical treatment under s 119 of the Act was not available, there was a need for a guardian for this purpose.

Contact with others

Evidence was given at the hearing that, since the marriage of the represented person, Activ Foundation staff had limited the contact between JB and the represented person.
JB stated that she wished to continue to have contact with the represented person and take her on outings.
JB advised that she had weekly social contact, from about June 2003, with the represented person but that some other members of Citizens Advocacy had known her for over 20 years. She stated that it had been their practice to attend a club for persons with disabilities weekly. Her evidence was that marriage plans for the represented person and DY, her spouse, had commenced in October of that year.
She stated that she understood the family of the represented person to be opposed to the marriage. She appeared to acknowledge that the family had not been advised of the wedding by the comment that, “The family have said that they would have come to the wedding had they have known but if we would have told them we know it wouldn't have gone ahead”. [Transcript page 17].
She stated that she had been unable to take the represented person to her club since October 2004 (following the marriage). She also stated she had attempted to visit the represented person at the group home but had been discouraged from visiting by staff who told her that "tea was on the table". She stated she had to speak to the represented person "through the door".
The represented person spoke with some pleasure during the hearing about her attendance at the club where she played "pool or cards".
Concern was expressed by MM about the lack of trust that had arisen because of the way in which the marriage of the represented person had taken place.
She stated that the Citizens Advocacy group had been defunded in 2004, and that following this, the general manager of Activ Foundation had written to Citizens Advocacy with a request that members not attend the house in which the represented person lived. She said that Activ Foundation was intending to develop protocols regarding contact between Citizens Advocacy and residents but that those protocols had not yet been put in place.
The evidence of CS was that there had been a reduction in the social activities available to the represented person since this policy had been put in place. This was because the organisation simply lacked the staffing resources.
In relation to other social activities of the represented person, CS stated that there had been more family involvement from the family of origin of her spouse than from the represented person's own family.
CS stated that the family of origin had not played an active role in the social life of the represented person on a regular basis. She stated that the family had contact with the represented person for special events such as Christmas, New Year, Easter and birthdays.
She stated that the represented person had gone home (to her family) the previous Christmas, and there had been two other visits by family members that year.
JP, the sisterinlaw of the represented person and proposed guardian, stated that it was not the family's intention to terminate the friendship between JB and the represented person. It appeared to the Tribunal that JP had not been aware of the limitations placed on the contact between the represented person and JB by Activ Foundation staff. She stated that the family was upset about the "underhanded" way that the marriage of the represented person had taken place, and while they did not want to put a stop to the friendship, there was a need to draw a line as to what was appropriate for a friendship. The applicant reinforced this view. She wanted to support the friendship but she wanted the boundaries observed as to who had decisionmaking authority in relation to the represented person.
EY, the brother and guardian of DY, husband of the represented person, stated that the families of the represented person and her spouse had never opposed the friendships between JB and A (the other appointed Citizens “advocate” for DY), and he said he had made this clear to Citizens Advocacy in dealings with them but the families took issue with the organisation's assumption of control of aspects of the lives of the represented person and DY.
EY questioned whether the best interests of the represented person and his brother, DY, had been observed by Citizens Advocacy, and specifically referred to The Australian newspaper having been given personal details of his brother and the represented person after the funding was withdrawn from Citizens Advocacy. He considered this was a breach of the privacy of the represented person and of his brother by those involved.
EY supported the need for formal authority to make decisions for the represented person because of the history of the families' views and concerns having been ignored by members of Citizens Advocacy.
He stated that he considered the situation was complicated by the fact that he and his sister were guardians for his brother, DY, with authority to make decisions for him but because of the marriage relationship which now existed between DY and the represented person, he and his sister did not think it appropriate to make decisions for her.
The Public Advocate supported the continuation of the friendship between JB and the represented person but submitted that boundaries needed to be put in place. She considered the represented person unable to judge what was in her own best interests in relation to the friendship. She highlighted that the concerns expressed by the family and the service providers about contact arose from the context in which the marriage had taken place.
The Public Advocate stated that Citizens Advocacy had not acted in the best interests of the represented person and she had no evidence to show that, if appointed guardians, the family members would not act in the best interests of the represented person.
The Public Advocate supported the appointment of guardians with authority to monitor and manage the relationship and to use their authority should the boundaries be stretched from the friendship role to another role.

Prenuptial agreement

The applicant stated that she understood the represented person to have signed a prenuptial agreement before her marriage but she stated that the represented person could not know what she was signing.
MM stated in the hearing that she found out about the prenuptial agreement in October 2004 at the Guardianship Board's hearing in respect of the spouse of the represented person. It is the Tribunal’s understanding that MM has not seen the document and the represented person does not have it in her possession.
JB stated that MP had arranged for legal advice to be obtained in relation to the marriage but that the represented person did not see the solicitor herself.
The explanation she gave regarding this point is as follows:
"[Presiding Member]: Did she have legal advice?
[JB]: No. Well, I - we would get the advice and then come back and talk to [the represented person] about what was said.
[Presiding Member]: Why was that?
[JB]: Well, I didn't think it was worth sort of getting [the represented person] sort of involved in it too much because I didn't know whether she would sort of understand but we sort of went and we would find out what was the legal position and -
[Presiding Member]: So when you say you didn't think it was worth getting [the represented person] involved in it because you didn't think she would understand, what didn't you think she would understand?
[JB]: Well, all the legal talk.
[Presiding Member]: Yes.
[JB]: So we sort of - we took her to - went with the priest.
[Presiding Member]: You don't think a lawyer could speak to a person with an intellectual disability and communicate with them?
[JB]: Yes. In hindsight I fully realise we should have. Yes." [Transcript - page 18].
The execution of the prenuptial agreement by the represented person referred to by the applicant was said by JB to be part of the legal advice that they obtained.
JB described to the Tribunal the process by which advice was obtained by the “advocates” and relayed to the represented person.
"[Presiding Member]: Okay; and so this legal advice about the prenuptial agreement, can you tell us about that at all?
[JB]: Well, we were just advised that it would be wise to have it so that there could be no disputes.
[Presiding Member]: Were [the spouse] and [the represented person] present at that time when that advice was given?
[JB]: They - we told them about it when we came back. It was at the same meeting when we went through what was the legal situation and what things would we need to look into.
[Presiding Member]: Okay; so there was a meeting with a solicitor.
[JB]: Mm hm.
[Presiding Member]: Is that right?
[JB]: It was a solicitor, lawyer. I don't know.
[Presiding Member]: Okay. It was a meeting with a lawyer at which you and Mrs -
[JB]: [MP] and [A]. We sort of - we discussed it. Well, I don't know if I [A] and MP went to one and then I met up with [A] after it and with MP after it and then I think we sort of I just had a casual you know, we just sort of all got together.
[Presiding Member]: Right, and based on that meeting you came back and discussed it with -
[JB]: I spoke to [the represented person] about it.
[Presiding Member]: Okay. What did you tell her?
[JB]: I just told [the represented person] that if there was any money that [the spouse] had and we told spoke to [the spouse] about it that if there was any money that [the spouse] had that she couldn't have any of it once she was married. You know, I'm just sort of trying to explain it in very simple in simple terms that the money that [the spouse] had was going if there was any inheritance or any money that [the represented person] didn't have any rights to that that she would not be able to claim any of [the spouse]'s money.
[Presiding Member]: Why would you give that advice?
[JB]: Why were we given that advice?
[Presiding Member]: No. Why would you give it to anyone? Why would you give the advice that someone marrying someone would give away their rights under the Family Law Act? Why would you give that advice?
[JB]: Well, just so that [the represented person] knew what was going on.
[Presiding Member]: Did [the represented person] understand that she wouldn't have rights perhaps in relation to property?
[JB]: Well, I don't know whether she would have or not but I think she needed to be told and it needed to be pointed out that she needs to sort of understand what was
[Presiding Member]: So if the prenuptial agreement hadn't been signed was that position explained to her?
[JB]: Probably not, no. I don't know." [Transcript page 21].

When asked who drafted the agreement, JB gave evidence:
"[Presiding Member]: Who drew up the prenuptial agreement? Who drafted it? Who was the solicitor who drafted it?
[JB]: The lawyer that they saw." [Transcript page 24].
Later in the hearing, EY stated that the agreement was drawn up by JB's husband.
When questioned about this point, JB conceded that her husband had prepared the agreement based on the information that they had received.
When asked about the apparent inconsistency with her earlier statement that “the lawyer that they had seen” had drafted the agreement, JB’s evidence was lengthy. At the conclusion of an exchange that goes over two pages of transcript regarding her husband’s qualifications as an “insurance lawyer” to draft such an agreement for the represented person, it became apparent that he was not legally qualified.

Findings

Capacity

There was no issue taken by any party attending the hearing regarding the capacity of the represented person. Based on the medical and other reports and the evidence given at the hearing, the Tribunal was satisfied that [GY] is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person and is in need of oversight care and control in the interests of her own health and safety, and she is, therefore, a person for whom a guardianship order may be made.

Need medical consent

Section 43(1)(c) of the Act requires that, in respect of making a guardianship order, the Tribunal must be satisfied that there is a need for a guardian.
There is a clear need in relation to the question of medical consent because the less restrictive alternative that may be available under s 119 of the Act cannot operate because the spouse of the represented person is the first in order in the hierarchy and he is not able to act in that role.
There was evidence before the Tribunal that the spouse of the represented person has more serious impairments of capacity than does the represented person and is not in a position to give consent to treatment of the represented person. The health situation of the represented person is uncertain, and it may be that she requires surgery for treatment of her current medical problems. In that case, there would be the need for a formal consent to medical treatment, and that can only be provided in this instance by an appointed guardian.

Need contact with others

The Tribunal accepts the submissions that there is a need for formal authority to make decisions regarding the contact the represented person had with others.
There was evidence provided at the hearing that there had been some attempt to restrict the contact that the represented person had with JB by the staff at Activ Foundation.
It appears that this decision may have been taken by staff and management at Activ Foundation but may not have been communicated to the family members of the represented person. It is not clear to what extent they understood or were aware of the attempt to limit contact with JB. What is clear is that there was no legal authority to limit this contact despite it having arisen from a concern regarding what had happened in past contacts between the represented person and JB.
The Tribunal did not accept the statement by MM that the represented person was able herself to make decisions about the contact she had with others. The expressed wishes of the represented person to see JB appeared not to have been given effect to by Activ Foundation staff.
We accept that the represented person is able to express her wishes in this regard and did so in the hearing saying that she wished to see JB and to have her as a "special friend". However, the Tribunal prefers the assessment of the Public Advocate on this point that the represented person is not able to judge what was in her best interests in relation to friendships.
Family members, including the applicant and the proposed joint guardian, both confirmed their wish that the friendship between the represented person and JB continue but that the relationship needed to be a friendship rather than an assumption by JB of control over the life and decisionmaking of the represented person.
The Tribunal accepted the submission of the Public Advocate that the contact between the represented person and Citizens Advocacy had not operated in her best interests and that there was a need for monitoring and control of the relationship.
The regulation of that contact cannot be achieved in a less restrictive way because of the attitude presented by the Citizens Advocacy group, and more particularly JB, regarding the exertion of control over the life of the represented person.
From JB's evidence, there appeared to be a lack of recognition of the inappropriateness of her past conduct and the concerns expressed by family members and Activ Foundation staff about that conduct.
The Tribunal considered there was a need for formal authority because the informal restrictions put in place had had the effect of limiting the recreational options of the represented person.
In decisions made about contact the represented person has with others, the guardian must observe the obligations to act in the best interests of the represented person.
Those obligations are set out at s 51 of the Act and include: encouraging the represented person to participate in the life of the community, consulting with the represented person, taking into account as far as possible the wishes of that person, acting in a manner that is least restrictive of the rights of the represented person while consistent with her proper protection, and maintaining any supportive relationship the represented person has.
The last matter that supports the need for a guardian is the prenuptial agreement said to have been signed by the represented person prior to her marriage.
The details of that document are not clear because the Tribunal has not had a copy of it, nor have the applicant or proposed guardians seen it. The represented person is said not to have that document in her possession.
The evidence in relation to the drafting and execution of the document is not satisfactory, and we consider that the evidence given by JB was evasive and unclear. However, it is apparent that the prenuptial document, which the represented person was encouraged to sign by JB, was drawn up by JB's husband, who is not a qualified solicitor.
The evidence given in relation to the failure to advise the family members of the wedding, the secrecy surrounding the marriage plans, the drawing up of the prenuptial agreement and the context in which this all occurred, raises concern regarding the role played by JB and Citizens Advocacy.
The implications of the represented person’s inability to understand the legal position appears not to have sounded a note of caution to JB in the furtherance of the marriage plans and the execution of the prenuptial agreement.
JB’s own evidence was that the represented person was not involved when legal advice was purportedly obtained for her benefit. The advice said by JB to have been relayed to the represented person appeared to the Tribunal to have been, at best, incomplete as to the legal consequences for the represented person of signing the agreement.
It is of concern that the represented person’s selfappointed "advocate" considered that a legal agreement, by which the represented person forewent significant legal rights, was prepared by a person who was not legally qualified to prepare such a document.
JB agreed in the hearing that the document was proposed, prepared and signed to allay the perceived concerns and objections of family members rather than to provide for the best interests of the represented person.
The decision by JB to assist in the process of the execution of that document raises concerns about her ability to adequately assess the needs and rights of the represented person, and it is in this context that the Tribunal considers that the guardians need the authority to examine the implications of the document, whether the represented person is bound by it, and what implications or consequences arise from the agreement.

Orders

The formal orders are that the applicant and the sister-in-law are appointed limited guardians with the authority to consent to any treatment or health care of the represented person to determine what contact, if any, the represented person should have with others and the extent of that contact, and to obtain legal advice in respect of the prenuptial agreement said to have been signed by the represented person, and to take any steps necessary concerning that agreement which are appropriate and in the best interests of the represented person, with a review of the order on 8 April 2006.

I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER