| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : HAH [2013] WASAT 134 MEMBER : MS F CHILD (MEMBER) HEARD : 18, 26 AND 30 JULY 2013 DELIVERED : 22 AUGUST 2013 FILE NO/S : GAA 1831 of 2013 MATTER : HAH Catchwords: Guardianship and administration - Represented person diagnosed with Behavioural and Psychological Symptoms of Dementia - Removed from spouse's care by sons - High level of conflict between spouse and sons - Medications changed and services refused - Conflict about where and with whom represented person should live and the treatment and services to which he should have access - Need for independent management of represented person's contact with others - Incapacity to make or change banking arrangements - Conflict in evidence about whether funds of represented person and spouse held by son - Finding by Tribunal more likely than not funds held by son - Need for an independent administrator of estate to secure funds and provide transparency of management of pension income
(Page 2)
Legislation: Guardianship and Administration Act 1990 (WA), s 4, s 43, s 43(5), s 64, s 110Z(D), Div 3 Pt 5 Result: Public Advocate appointed limited guardian
Public Trustee appointed plenary administrator
Summary of Tribunal's decision: The Tribunal appointed the Public Advocate as guardian and the Public Trustee as administrator of the estate of an elderly man with a diagnosis of dementia with challenging behaviours.
One of the sons of the elderly man applied for orders after two of the sons had removed their father from his spouse's care in April 2013. The sons claimed the spouse did not love their father, could not look after him on her own and had refused them access to visit him. The sons said the spouse had not sought contact or expressed concern for their father and was only interested in money.
The elderly man's spouse of 16 years said the sons removed their father from her care against his and her own wishes. She agreed she had refused to open the door to the sons on two occasions as she was angry, as they had refused to help her with their father's care. She said the sons hated her because she is their stepmother. As the spouse had not had contact with the represented person since he had been moved from her care, the Tribunal determined that the issue of contact needed to be managed independently of the family.
The Tribunal found that the applicant son, despite being devoted to caring for his father, was not suitable for appointment as guardian because he did not acknowledge his father's long-term relationship with his spouse. The son had acted unilaterally to change his father's care arrangements and medication. In the context of a complete breakdown in the relationship between the sons and the spouse, and the need for decisions to be made about his care and treatment, the Public Advocate was appointed limited guardian for the elderly man.
The Tribunal found there was a need for the appointment of an independent administrator. Although the estate was small and the applicant son was managing his father's pension through internet banking, the elderly man was not capable of making this arrangement at the time it had been arranged. In addition, the ownership of funds said by the spouse to be held by the applicant son was in dispute. The spouse said that the funds belonged to her and to her husband and were left with the son's family for safekeeping. The son disputed
(Page 3)
this and said no money was held for his father and stepmother. The Tribunal was satisfied on the balance of the evidence that some funds of the represented person and his spouse were held by the applicant son and should be secured by an independent administrator in the best interests of the represented person. The Public Trustee was appointed plenary administrator of his estate.
The orders were set for review in one year.
Category: B
Representation: Counsel:
Solicitors:
Case(s) referred to in decision(s):
Nil
(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 Mr HAH (represented person) is a 76yearold retired bank officer who came to Australia as a refugee some 12 years ago. He married his second wife 16 years ago. His six children from his first marriage are all adults and most live in Western Australia. For a period of time, the represented person and his spouse lived with one son, Y, later moving to their own Homeswest rental property, which is a tenancy in their joint names. 2 The represented person had medical treatment for a cardiac condition in 2010 and reportedly suffered a stroke during the procedure. He was later diagnosed with dementia and Behaviour and Psychological Symptoms in Dementia (BPSD) by a psychiatrist. 3 The parties agree that the represented person's spouse was his primary carer following his stroke, although there is conflict about the level of care he required prior to December 2012. It is agreed that he became ill in December 2012, was admitted to hospital and discharged to the care of his spouse in late December 2012. 4 In April 2013, two sons of the represented person, AHM and K, removed him from his home and his spouse's care and took him to live with AHM and his family. There has been no contact between the spouse and the represented person since that time, although it is said that offers of contact have been made to the spouse.
Applications to the Tribunal 5 On May 2013, the represented person's daughterinlaw (SM) and his son, AHM (the applicant son), filed applications for the appointment of a guardian and an administrator for the represented person proposing themselves for appointment as joint guardians and proposing the applicant son as administrator of the estate. 6 Orders were made on 27 May 2013 referring the applications to the Public Advocate for investigation and making other programming orders, including the production of records from hospitals where the represented person has been treated. 7 The applications were heard on 18, 28 and 30 July 2013. (Page 5)
8 In the course of the hearings, the Tribunal heard from the following persons: • AHM, the son of the represented person and the applicant (applicant son); • HM, the spouse of the represented person (spouse); • CO, the daughterinlaw of the represented person (daughterinlaw); • Y, the youngest son of the represented person (Y); • M, a son of the represented person (M); • K, the eldest son of the represented person (K); • YA, a maternal cousin of the sons (YA); • WA, the brother of YA and a cousin of the sons (WA); and • JK, the representative of the Public Advocate (Public Advocate). 9 The represented person did not attend. His general practitioner's opinion given in a report before the Tribunal is that he could make no contribution to the hearing, as he cannot communicate. The spouse was legally represented at the second and final hearings, and written submissions were filed with the Tribunal on her behalf. 10 SM, the wife of the applicant son, did not attend any of the hearings, and the applicant son was formally substituted as the applicant in the orders made on 30 July 2013 appointing the Public Advocate as limited guardian and the Public Trustee as plenary administrator of the represented person's estate. 11 The following sets out the reasons for the decisions made on the applications.
Legislation 12 The Tribunal may make orders appointing an administrator of the estate of the represented person pursuant to s 64 of the Guardianship and Administration Act 1990 (GA Act) if satisfied that the person for whom the order is sought is unable, by reason of a mental disability, to make (Page 6)
reasonable judgments about his estate, and is in need of an administrator. A guardian may be appointed if the Tribunal is satisfied pursuant to s 43 of the GA Act that the represented person is unable to look after his own health and safety, is unable to make reasonable judgments about his person, or is in need of oversight and care in the interests of his own health and safety or the protection of others, and the person is in need of a guardian. These provisions are subject to the principles in s 4 of the GA Act, which provide that: the primary concern of the Tribunal must be the best interests of the person for whom the applications have been made; there is a presumption that persons are capable of making decisions about their person and their estate unless there is evidence to the contrary to the satisfaction of the Tribunal; and orders should not be made unless there are no less restrictive alternatives to the making of the orders to meet the needs of the person. If orders are made, they should be made in the least restrictive terms possible. The Tribunal must also try to ascertain the wishes of the person as expressed or as gathered from their previous actions.
Evidence and material before the Tribunal 13 A medical report dated 6 May 2013 from Dr AA, the represented person's general practitioner, reports that he has known the represented person for five years. He indicates that the represented person has a diagnosis of dementia which he says is a progressive condition. Dr AA's opinion is that the represented person will have increasing problems associated with his memory, concentration and selfcare, and that the represented person is incapable of making judgments about his personal health care, his living situation and his financial affairs. Dr AA reports the represented person is incapable of executing an enduring power of attorney and incapable of making any contribution to the hearing as he is said to be 'unable to communicate'. 14 Included in the material produced from hospitals where the represented person has been treated are reports from Dr CL, a psychiatrist, and Dr NL, a consultant physician dated 25 February 2011, and correspondence to a (different) general practitioner dated 30 December 2010. 15 The hospital records refer to the represented person as being dependent for all activities of daily living; in particular, that he requires assistance with eating, toileting and needs close support and supervision. He is noted as a falls risk. A letter from Dr CL refers to BPSD, including agitation, needing constant reassurance and presence of his spouse, (Page 7)
wandering at night, inability to recognise family members leading to paranoid beliefs about his spouse and sons, and aggression. The reports also record contact between health professionals and the family of the represented person regarding his care needs in 2010 and 2011. The undated report of Dr CL of the Older Adult Mental Health Service report (which followed an urgent referral to her service in February 2011 from Dr NL) refers to a home visit with the family of the represented person conducted by Dr CL and a mental health nurse. The letter notes that the spouse, together with the son, Y, and daughter-in-law, CO, with whom they were living at the time, were involved in that assessment with the psychiatrist and mental health nurse. 16 The hospital records include a letter dated November 2010 to the general practitioner identifying the need at that time for urgent respite for the spouse. The need for services and for assistance from the family at night time with the represented person is said to have been discussed with Y, the son with whom they were living at the time. Y acknowledges that this discussion did occur. 17 Dr CL's report includes the following assessment of the represented person: … a 75 year old man, non English speaking, with a recent onset of major cognitive deficits with BPSD [Behavioural and Psychological Symptoms of Dementia] following cardiac surgery last August. He is demonstrating physically violent behaviours in the context of cognitive impairment and Paranoid Delusional beliefs. 18 Dr CL reports she proposed to the family a hospital admission of the represented person for assessment, and this was said to be supported by the spouse and son and daughter-in-law with whom the older couple lived at that time, but not by the represented person's older sons who were later consulted. She concluded that the family were to 'continue to administer Risperidone' to the represented person. She reported that she had identified a psychiatrist who spoke the represented person's language to assess the represented person and to assist in his ongoing care. In the (Page 8)
hearing, the applicant son confirmed a postscript in the doctor's letter that the represented person was not taken for this assessment. 19 The applicant son says he took the represented person to live with him following an incident in which the spouse would not let him (and his brother) enter the house to visit his father on 25 April 2013. 20 The applicant son says he became concerned about the care provided to the represented person by the spouse in the period between the discharge from hospital in December 2012 and April 2013. He says that the sons saw bruising on the hand and head of their father in March 2013. The sons (Y and K) say they believe the bruising is non-accidental. Y says that the spouse said the bruising on the hands of the represented person resulted from the spouse having to defend herself. He does not accept this. 21 The applicant son says that the represented person now needs 24 hour supervision and that the spouse is not able to provide this. He says that it requires all five members of his family to provide his father's care. 22 It is agreed by the spouse that the sons cared for the represented person when she was taken shopping by the sons' wives each week. The couple also went to the applicant son's home on the weekends. The applicant son agrees with the spouse that the spouse provided the personal care of the represented person from when he suffered the stroke up until when he was removed from her care in April 2013. 23 The applicant son says that he assisted in the care of the represented person while he was in hospital in December 2012 and offered to assist the spouse to shower the represented person on two occasions soon after the represented person was discharged from hospital, but the spouse had said that the represented person had already been showered. 24 The applicant son and his brothers say that the spouse did not require assistance with the care of the represented person until the discharge of the represented person from hospital in late December 2012 and that she exaggerated his care needs prior to that time. However, this is not consistent with other statements of the applicant son that the represented person needed significant rehabilitation following his stroke and that all the family supported this. The sons are critical of the care provided to the represented person by the spouse. Both Y and K say the spouse treated the represented person poorly since his stroke in 2010. Although acknowledging some of the challenging behaviours of the represented (Page 9)
person, the sons who appeared at the hearings say that the spouse should not have spoken to them or to other family members about the represented person's behaviour in front of him. 25 Two of the sons say that the spouse wanted to have the represented person admitted to a nursing home and that the sons opposed this. They say they believe this is so because the spouse reported their father's disturbed behaviour to health professionals. 26 The hospital records in December 2012 show that the applicant son declined services for the represented person on his discharge from hospital, saying that the family could manage. The represented person was discharged to the spouse's care. The applicant son agrees that he refused the services offered, as his father is unwilling to be cared for by strangers. The discharge summary from the hospital was produced to the Tribunal by the spouse and it is noted that that the represented person's medications on discharge in December 2012 include anti-psychotic medication. 27 The applicant son says that the spouse's description of the represented person's behaviour to health professionals led to the prescription of anti-psychotic medications for management of his behaviours which were, in his view, unnecessary and caused serious side effects. The applicant son asserts that the represented person was overmedicated by the spouse. He says that when his father came to live with him in April 2013, he stopped the medication. The applicant son says the side effects previously shown by the represented person have disappeared and the medications are not needed because of the 'attitude' shown to the represented person by his family. The daughterinlaw, CO, supports this view. The applicant son acknowledges he did not speak to the specialist doctors who prescribed the medications or to Dr AA, the general practitioner, before he stopped the medications. The applicant son says the represented person was taken to Dr AA about two weeks after the medication was stopped and the applicant son says the doctor noted improvements in the represented person. Dr AA does not refer to any challenging behaviours in his report and makes no reference in his report to any improvement in the condition of the represented person. 28 The applicant son says that the current care arrangements should continue and the represented person should remain in his care, as his father's health and behaviour have improved markedly since being with his family and that he is now settled there. (Page 10)
29 The applicant son now says that there is no need for the appointment of an administrator of the estate of the represented person, as he is managing the pension of the represented person through internet banking which was arranged when the represented person was taken into his care. 30 The applicant son says there is a need for a guardian to make treatment and all personal decisions for the represented person. He says the represented person needs a guardian because the spouse was experiencing stress and the sons feared for their father because of the way the spouse was caring for him. 31 The spouse initially opposed the applications for the appointment of a guardian and an administrator. She said that as she and the represented person have been married for 16 years and as she had cared for her husband since his stroke, there was no need for orders. At a later hearing, she was legally represented and, while opposing the appointment of the applicant son, the spouse did not oppose the appointment of the Public Advocate and Public Trustee, as proposed by the Public Advocate. 32 The spouse says that there is hatred directed to her by the sons because she is their stepmother, and they have never supported the represented person's marriage to her. She says that the represented person should return to live in their home and be cared for by her there, as he has been, since his stroke. She says she has devotedly served him and simply wanted more help from his sons in his personal care. She says she is willing to accept services to support her in his care. 33 She says that the represented person was removed from their home against her wishes and her husband's wishes. She says that the represented person said 'leave me here' as the sons were taking him. 34 The spouse agrees that twice, she initially refused to answer the door to two sons but later let them into the house when she heard them speaking to the police on a mobile phone. She says that the sons would not assist her with their father's care despite her repeated requests and she had become angry with them and did not want them visiting for this reason. She says that even when the sons were in their home, they would not take their father to the toilet. She says that they told her that the personal care of the represented person was her responsibility as his wife. 35 The spouse says a relative has now told her that the applicant son is trying to arrange that she is divorced from the represented person. (Page 11)
36 The spouse says that on the day the represented person was removed, the applicant son grabbed her, and both the applicant son and K verbally abused her. According to the spouse, a report was made to the police and the spouse has produced to the Tribunal a Western Australian Police service card with a complaint number on it. 37 Both sons deny that there was any assault on the spouse or that they verbally abused her. They say she swore at them. 38 All parties agree that the represented person has been living at the applicant son's home since 25 April 2013 and has not seen his spouse in that time. The cousins of the applicant son, YA and WA, say that they attempted to arrange a visit with the spouse, either at the home of the applicant son or their homes, but that the spouse will not visit. 39 The applicant son and CO, the daughter-in-law, say that the spouse has not contacted them to ask after the represented person since his removal, including when he was treated for bruising in Sir Charles Gairdner Hospital after a fall while living at the applicant son's home. The spouse says she had not been told of the fall or of the hospital presentation. 40 The spouse reported to the Public Advocate and said in the hearing that she left cash of $30,000 and gold with SM (her daughter-in-law, the wife of the applicant son) before going overseas in 2011 to visit her mother. Although the gold has been returned to her, she claims that the money remains in the safe in the house of the applicant son and that he will not return it. In the hearing, the applicant son agreed gold had been left with him but denied any cash was left and denies he now holds any funds of the represented person or of the spouse. 41 During the hearing, a cousin of the applicant son, YA, said that he tried to mediate an agreement between the applicant son and the spouse. He says he was given $15,000 by the applicant son, and then attempted to negotiate with the spouse that she would not oppose the represented person living with the applicant son. In addition, he sought her agreement that she would withdraw her complaint to the police, would not oppose the applicant son's application to the Tribunal, and would say that she and the applicant son were 'friends now' (T:47; 26.07.13) In return, if the spouse 'acted in the right way' and could establish her claim to the $15,000, she would receive this money, but even if this was not established, she was to receive $266 per week in alimony (T:48; 26.07.13). YA says the spouse had agreed with this proposal but (Page 12)
then changed her mind and was not cooperating, and so he had returned the money to the applicant son. His account of attempts to reach an agreement with the spouse regarding these matters was supported by his brother, WA, but this is denied by the applicant son, who says that no money of the spouse or the represented person is held by him, other than the represented person's pension (T:32 and 33; 26.07.13). He agrees that money given to YA by him for the negotiations was returned to him but says it is money of the sons collected by him to give to the spouse (T:55; 26.08.13). Further, he says the proposed agreement was not an attempt to have the police charges withdrawn, as he was not worried about this as he had not assaulted the spouse. The negotiation was intended only to solve the problem and to have the represented person live with him and his family (T:56; 26.07.13). 42 When asked about the money in dispute, the sons (K at T:62; 26.07.13 and Y at T:68; 26.08.13) deny it was the spouse's money, saying that the money was the son's money, as they had all supported the represented person and the spouse financially by regularly giving them money over the years.
Public Advocate's submissions 43 The application was referred to the Office of the Public Advocate for investigation prior to the hearing, and the Public Advocate reported on the investigation in the hearings. The report refers to allegations made on both sides about the conduct of the parties, both in relation to the represented person and to each other. 44 The Public Advocate submits that the conflict is so great between the spouse and the sons of the represented person that the Public Advocate should be appointed as guardian and the Public Trustee appointed as plenary administrator of his estate. It is submitted that an independent guardian should be appointed to assess the accommodation, care and service needs and options for the represented person, to make accommodation, service and treatment decisions for him, to manage contact, and, if necessary, to determine questions of chemical restraint. 45 It is argued that an independent administrator should be appointed, as the represented person did not have the capacity to make the banking arrangements that are now operating on his behalf and there is conflict about the funds said to be held by the applicant son and, in which the represented person may have an interest. (Page 13)
Is the represented person a person for whom orders can be made? 46 The medical evidence makes clear, and there is no challenge from any person, that the represented person cannot act independently in relation to personal or financial decision-making. It is likely, given the content of the reports before the Tribunal, that this has been the position since his stroke in 2010. Based on the material from the hospitals, from Dr AA and the evidence of all family members, the Tribunal finds that the represented person is a person for whom orders can be made, in that he is unable to look after his own health and safety, is unable to make reasonable judgments about his person and is in need of oversight and care in the interests of his own health and safety and, given the records of reported aggressive behaviours, potentially for the protection of others. He is by reason of his dementia unable to make reasonable judgments about any or all of his estate. He is therefore a person for whom guardianship and administration orders may be made.
Is the represented person in need of a guardian and an administrator? 47 It is agreed the represented person is now no longer able to make decisions himself and is reliant on others for all personal decisionmaking. The Tribunal accepts the submission of the Public Advocate that there is such conflict between the parties that the represented person is in need of a guardian and an administrator of his estate. 48 Prior to the removal of the represented person from the care of the spouse, the applicant son agrees that the spouse had provided all of the personal care for the represented person. The removal of the represented person occurred after the spouse had refused access to the home to the sons. The applicant son's actions in April 2013 to remove the represented person and subsequent decisions concerning his care were made without consultation or negotiation with the spouse. The level of distrust, disrespect and antagonism between the sons and the spouse is such that communication between them has completely broken down. There is now a bitter conflict between all of the sons of the represented person and the spouse, with allegations made that the spouse has never loved or cared for the represented person and is only interested in money; allegations of verbal abuse by both sides; an allegation that the applicant son assaulted the spouse; reports of the police being called; an interim violence restraining order made naming the applicant son; and an alleged attempt on behalf of the applicant son to have the spouse withdraw complaints to the police and not oppose the applications in the Tribunal. (Page 14)
49 The level of conflict between the applicant son, the other sons and the spouse, which was clearly apparent in the hearing, means that decisions about where the represented person is to live, and with whom, and the contact he has with others, cannot be managed informally. The applicant son says that the represented person should remain living with his family; the spouse says the represented person should return home. The applicant son says he is willing to have the spouse visit the represented person at his home but this has not occurred. The evidence from YA suggests that offers to arrange visits may have been associated with negotiations and resolution of 'the problem' as the applicant son saw it. It is not clear whether this was the case but what is clear is that the spouse has not taken up offers to see the represented person. There is a need for appropriate communication to occur about these matters and it is evident that an independent guardian is required to manage the contact the represented person has with others. 50 The represented person needs a guardian to determine the services to which he has access. His own impairment makes it impossible for him to consider the consequences of refusal of services, and it appears family members have refused services on his behalf. There is a clear conflict in the positions of the sons and the spouse regarding the acceptance of services. In his report dated 6 May 2013, Dr AA refers to an increasing cognitive impairment and progressive condition impacting on 'self care'. It is possible, and even likely, that services will be needed in the future if the represented person's care is to be maintained in the community, either at his own home with his spouse or in the care of the applicant son and SM, his daughter-in-law's family. 51 The represented person cannot make decisions about treatment matters for himself, and he has a complex medical history and ongoing significant medical problems. The less restrictive alternative of the operation of s 110Z(D) of the GA Act is not available here, as there is ambiguity about who could be identified in the hierarchy as the person able to make treatment decisions for the represented person. Even if the position was clearer, the informal means by which treatment decisions may be made is no longer appropriate for the represented person, given the level of conflict. There is a need for certainty and consistency in treatment decisionmaking. The represented person is in need of a guardian to make treatment decisions on his behalf. 52 If the represented person no longer presents with BPSD, as the applicant son contends, he may not need medications to control his behaviour. However, given that his condition is described as a (Page 15)
progressive one, he may in the future again place himself and others at risk due to aggression. Medical opinion may be that he should again be prescribed sedating or anti-psychotic medications. In the event such medications are prescribed for a purpose other than the represented person's own medical management, a decision about whether the represented person needs such medication in his best interests may need to be made, taking into account specialist medical advice and less restrictive options where possible. The Tribunal considers it is appropriate that a guardian with that authority, determine whether such medications are given to the represented person. As such, the authority to determine questions of restraint of the represented person should be included in the functions given to the guardian. 53 A limited order with the identified functions set out above is sufficient, in the view of the Tribunal, to meet the needs of the represented person. 54 There is also a need for the appointment of an administrator of the estate of the represented person. The current banking arrangements were made at a time when it was accepted that the represented person lacked capacity to decide or communicate his wishes to change his banking arrangements. 55 There is also the matter of the disputed funds said to be held by the applicant son. Where the evidence of the applicant son differs from that of the cousins, YA and WA, the Tribunal prefers the evidence of the cousins. YA supports the application and the position of the applicant son and volunteered the information about his attempts to mediate between the applicant son and the spouse in an effort to explain the background to the situation, the conflict, and his efforts on behalf of both parties to resolve the dispute. YA says he had funds to facilitate this negotiation which were given to him by the applicant son. The position put by YA was that $15,000 given to him by the applicant son was offered to the spouse on certain conditions, and this is conceded in part by the applicant son. The issue in dispute is the source of the funds. The evidence of the sons, Y and K, is that the money was the sons' money since they had contributed to the financial support of their father. This evidence indicates that some funds exist. It also supports the contention by the spouse that the funds had been saved by the spouse over time. Although the applicant son denies the assertions of YA, the Tribunal accepts the evidence of YA that he was asked to undertake the negotiation and was given information by both parties which he said they can't deny. The Tribunal considers on balance that it is more likely than not that the (Page 16)
$15,000 offered to the spouse represents a calculation of what is thought to be the spouse's 50% share of the funds held. This is consistent with the evidence of YA that the spouse was asked to swear that all the funds were hers and she said she could not. He then made a judgment, he said he thought was fair, to offer half. (Noting that YA said he was only given $15000 by the applicant son and returned it to him after the unsuccessful negotiation). The spouse says the funds were saved during the period of the marriage and if this is the case, they are joint funds of the spouse and the represented person. 56 The Tribunal finds there is a need for the appointment of an administrator to ascertain the extent of the estate, to secure any funds of the represented person held by others and to invest those funds appropriately, and to provide transparent management of his pension income.
Wishes of the represented person 57 The Public Advocate sought to interview the represented person to ascertain his wishes. Unfortunately, due to the severity of his dementia, he was not able, even with the assistance of an interpreter, to make his wishes known. Members of the family convey that the history that the represented person was a strong man and in control of his own situation prior to his stroke in 2010. Following that, he became dependent on his spouse and others to care for him. 58 The applicant son confirms that the represented person and the spouse have been married for 16 years and prior to his removal from her care the represented person had lived continuously with her. The Tribunal takes this to be an expression of the represented person's wish regarding his living situation that he had not previously separated from her. 59 It is said by the spouse that the sons intend that she is divorced from the represented person. The evidence about advice sought from clerics and arrangements for alimony given by YA tends to support this contention made by the spouse. Although there is no specific capacity assessment on this point, the medical and other evidence before the Tribunal, which includes that the represented person cannot communicate and does not consistently recognise members of his family, makes it more likely than not that he does not have the requisite capacity to make a decision to end his marriage and that he could not have initiated his separation from his spouse. If action has been taken by the sons to sever their father's marriage relationship, such action is not in the best interests of the represented person, as it does not give due regard to his longterm (Page 17)
relationship with his spouse or respect the wishes of the represented person as previously expressed through his actions.
Who should be appointed guardian? 60 It is agreed by both the spouse and the sons and it is reflected in the statements made to the Public Advocate that it would be the represented person’s cultural practice that one of his sons becomes his spokesperson if he himself is unable to speak. The Tribunal is in no doubt that it would not be the wish of the represented person that the Public Advocate be appointed as his guardian. 61 The Tribunal cannot appoint the Public Advocate unless satisfied that there is no one else suitable or willing to be appointed as guardian (s 43(5) of the GA Act). The applicant son proposes himself for appointment as guardian and submits he has acted in the best interests of the represented person. He says he has the support of the wider family of the represented person of over 45 persons against the views of the spouse, and submitted a petition with a number of names on it said to be in support of his appointment. However, the present level of conflict, the applicant son's unilateral actions in removal of the represented person from his home, the lack of any communication or real compromise with the spouse who was acknowledged as the primary carer, the applicant son's refusal of services for the represented person and, more recently, his failure to consult with medical practitioners treating the represented person before ceasing prescribed medications, means that he is not suitable for appointment as guardian. 62 The Tribunal finds that in the circumstances there is no one suitable for appointment as guardian and so must appoint the Public Advocate, although it is understood that this would not be the preference of the represented person or his family. 63 It is obvious that the present level of conflict is not in the best interests of the represented person. It may be that an independent guardian can communicate with and work effectively with all the parties, including any service providers that might be engaged on his behalf, to achieve the best outcome for the represented person and enable him to remain living safely in the community supported by all his family. 64 The Tribunal concludes that the represented person needs an independent guardian to make decisions on his behalf in his best interests, including his need for protection, and taking into account his familial and (Page 18)
cultural background, his previous wishes and maintaining all his supportive relationships. 65 The Public Advocate is appointed as limited guardian with review of the order in one year.
Who should be appointed administrator? 66 In respect of the application for the appointment of an administrator, again, the conflict between the spouse and the sons of the represented person, the need for transparency in relation to the management of his finances, and the dispute over the ownership of funds said to be held by the applicant son in which the represented person has an interest, means that an independent administrator must be appointed. The orders are made reviewable in one year in the hope that in that time there will be sufficient resolution of the conflict to enable a family member to be appointed.
Orders
GAA 1831 of 2013 1. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA). 2. This order is to be reviewed by 30 July 2014.
GAA 1832 of 2013 1. The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed limited guardian of the represented person with the following functions: (a) to decide where the represented person is to live, whether permanently or temporarily; (b) to decide with whom the represented person is to live; (c) subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), (Page 19)
|