HAJC
[2007] WASAT 96
•30 APRIL 2007
HAJC [2007] WASAT 96
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 96 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2273/2006 | 15 DECEMBER 2006 | |
| Coram: | DR E LEIPOLDT (SENIOR SESSIONAL MEMBER) | 30/04/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | The Public Advocate is appointed limited guardian for a period of one year The represented person's daughters, NHP and PJB, are appointed joint plenary administrators for a period of five years | ||
| B | |||
| PDF Version |
| Parties: | NHP HAJC |
Catchwords: | Administration order – Guardianship order – Wishes of represented person – Best interests – Public Advocate |
Legislation: | Guardian and Administration Act 1990 (WA), s 4, s 43, s 43(1)(b), s 64, s 64(1)(a) |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : HAJC [2007] WASAT 96 MEMBER : DR E LEIPOLDT (SENIOR SESSIONAL MEMBER) HEARD : 15 DECEMBER 2006 DELIVERED : 30 APRIL 2007 FILE NO/S : GAA 2273 of 2006
- GAA 2274 of 2006
- Applicant
HAJC
Represented Person
Catchwords:
Administration order – Guardianship order – Wishes of represented person – Best interests – Public Advocate
Legislation:
Guardian and Administration Act 1990 (WA), s 4, s 43, s 43(1)(b), s 64, s 64(1)(a)
Result:
The Public Advocate is appointed limited guardian for a period of one year
(Page 2)
The represented person's daughters, NHP and PJB, are appointed joint plenary administrators for a period of five years
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Represented Person : Selfrepresented
Solicitors:
Applicant : Self-represented
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 HAJC is a 92-year-old woman, diagnosed with dementia. She currently lives at home. Her two daughters applied for an administration order and a guardianship order. They say they cannot attend to all of their mother's finances without the authority of an administration order. They had attended to some matters informally but now faced transactions where they could not act informally. With regard to guardianship, their mother is vulnerable in her own private residence due to the effects of dementia. They believe a decision for alternative accommodation is imminent. Their mother opposes this and they believe that a guardian is needed to make this decision. The Tribunal appointed NHP and PJB as joint plenary administrators and the Public Advocate as limited guardian with regard to deciding where their mother is to live.
Introduction
2 HAJC is a 92-year-old woman, diagnosed with dementia. She currently lives at home. She receives the aged pension and has a small estate. Her two daughters, NHP (applicant) and PJB, have access to their mother's bank account by bank card only, by using it at an automatic teller machine (ATM). They are unable to attend to their mother's Homeswest tenancy, or sign any future supported accommodation entry documents or pay its fees. The daughters have attended to paying bills for over a year but now consider that they need an administration order. They say that their mother does not consider that she needs an administration order.
3 The daughters say that it is becoming dangerous for their mother to remain in her residence and are concerned for her safety. She lives alone, be it with carers attending twice a day. She has left the stove on and food has been left in unhygienic circumstances. She is at times confused and disorientated. The daughters want their mother to stay at her residence for as long as possible but think that a decision to move her to supported accommodation is imminent. The daughters say that their mother is not willing to move.
4 The Tribunal must decide whether HAJC is incapable of making her own reasonable decisions about her finances and about lifestyle decisions, whether she is in need of an administrator and guardian, if so who that administrator or guardian should be and under which terms. It must also consider whether there are less restrictive alternatives to making orders.
(Page 4)
5 The daughters were the only parties present at this hearing.
6 Subsequent to the hearing in this matter the Public Advocate requested written reasons for the Tribunal's decisions.
Background
Capacity
7 The Tribunal must consider the issue of capacity as a precursor to the consideration of application for orders relating to an adult person.
8 Section 4 of the Guardianship and Administration Act 1990 (WA) (the Act) states:
"(1) In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in subsection (2).
(2) ...
(b) Every person shall be presumed to be capable of –
(i) looking after his own health and safety;
(ii) making reasonable judgments in respect of matters relating to his person;
(iii) managing his own affairs; and
(iv) making reasonable judgments in respect of matters relating to his estate; ..."
Evidence
10 In making its judgment, the Tribunal relied on the following evidence.
11 Dr Patel provided a written report to the Tribunal. He is a general medical practitioner who has known HAJC for two and a half years and is her regular medical attendant. He saw her last on 16June 2006 and diagnosed Alzheimer's disease. His prognosis is for gradual deterioration.
(Page 5)
- He states that she is not capable of making reasonable decisions about her personal health care, in relation to her living situation, or financial affairs. She is incapable of executing an enduring power of attorney. Further, Dr Patel notes that HAJC denies incontinence, often refuses to shower, and food at times goes off in her home. She turns off the fridge and power switches, and has packed to move for no apparent reason. She has outbursts of anger, also without apparent reason. Attendance would be detrimental to HAJC's health and not be in her best interest as she "is in total denial of her condition" and attendance "would greatly upset her and aggravate her emotional state".
12 Outpatient notes provided by the Aged Care Assessment Team (ACAT), by JR, dated 3 October 2005, describe Alzheimer's disease, depression and various other medical issues. She receives care funded by a dementia-specific aged care package. Daily carer visits encompass medication and meal prompts, encouragement for personal care and checking on her safety. The notes identified "increasing memory problems; refusing to let carers into the home; poor hygiene and incontinence; and reduced ability to make decisions for herself". At times HAJC will not let her daughters into her home and has "significant memory problems". And, "at times she leaves the stove element on and will want to keep food that has gone off". Her scores were "19/30 using serial sevens and 24/30 using 'world' ". The Tribunal assumes that these refer to mini mental state examination test scores.
13 The applicant, NHP, nor her sister PJB, oppose the findings in these reports about their mother's capacity.
Findings
14 Upon reviewing this evidence the Tribunal is satisfied that s 43(1)(b) of the Act is met and that HAJC is someone for whom a guardianship order could be made. Equally it is satisfied that s 64(1)(a) is met and an administration order could be made for HAJC.
Need
15 The Tribunal can only make an order if the needs of the person in respect of whom an application is made could not, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
16 The applicant, NHP, seeks a guardianship order giving the guardian powers to decide about suitable accommodation for HAJC. She
(Page 6)
- recommends this be the Public Advocate. She seeks an administration order and recommends that herself, and her sister PJB, be appointed as joint administrators of HAJC's estate.
Evidence
17 Firstly, with respect to guardianship; the application, doctor's report and outpatient notes by the ACAT reflect that HAJC now lives in her own home, with assistance from an in-home care agency. Her daughters also assist where they can although HAJC had not let them into her home on a number of occasions. The Tribunal accepts that this is due to HAJC's cognitive impairment rather than in any way due to a bad relationship between mother and daughters.
18 Dr Patel notes that HAJC denies incontinence, often refuses showering, and turns off the fridge. In addition, the outpatient notes by the ACAT indicate that HAJC has left the stove on on some occasions and needs assistance in maintaining her personal hygiene. NHP and PJB spoke of their mother's confusion. At times this could include being mistaken about whether she was at home or not, or whether her bed and kettle were hers. She had been adamant about moving on one instance and had packed belongings without knowing where to go.
19 The applicant and her sister wish to maintain their mother in her home for as long as possible but can foresee her moving into a supported care residence in the near future. They are particularly concerned that their mother would start wandering and be harmed. It is difficult for the sisters to make and effect any accommodation decision because their mother strenuously opposed any move to alternative accommodation. This had been difficult on a past occasion when HAJC was in respite care for a short time, as HAJC would not settle.
20 PJB stated, "We want to do the best for mum but we don't know how, to be quite honest. It's really difficult and we just cannot. [We] won't be able to get her to change her mind, that we can see." Furthermore, she added:
"We can both handle a lot but there comes a time when there's too much, too much stress. It would be very, very difficult to handle. I mean it would be stressful enough with mum getting to the stage where she's going to need help without having the resistance from her and the recriminations which would come back on us."
(Page 7)
21 Because of this likely stressful situation and adverse impact on the relationship with their mother, NHP and PJB wish to have an independent guardian appointed. They stated that whereas their mother would not listen to them, she did listen to people who carried some authority. They believe that a guardian from the Office of the Public Advocate would have more success than they would in deciding about suitable accommodation. As PJB stated, "With mum when it comes to authority and government figures she's usually pretty amenable whereas with us, she's not."
22 The sisters agree that a one year appointment for an independent guardian is a realistic timeframe as any decisions are likely to be made within that time.
23 Secondly, in respect of the application for administration, because HAJC has no longer been able to do so, the applicant and her sister have attended to HAJC's financial affairs for about a year, be it limited to using an ATM.
24 HAJC has a small estate. Her income is solely an aged pension. She rents accommodation, and her utility bills and personal expenses need to be paid for. The applicant wishes to pay bills legally, including having full access to her mother's bank accounts. As an alternative accommodation decision is on the horizon, she also needs to be able to sign any accommodation entry documents and pay accommodation fees.
25 The applicant proposes herself and her sister to be appointed as joint administrators of their mother's estate. Thus they would legally continue what they had been doing jointly and informally up to now.
Findings
26 Upon review of the evidence before it, the Tribunal finds that there is a need to appoint a limited guardian for HAJC with the powers to decide where HAJC should live.
27 The Tribunal accepts that an accommodation decision for HAJC is likely imminent. HAJC opposes any move to alternative accommodation. This opposition may be contrary to HAJC's best interests as her condition deteriorates and further becomes vulnerable to incidents resulting from her forgetfulness and disorientation. HAJC's daughters want to keep their mother in her own home until no longer possible and assistance to that end is in place. Nevertheless an accommodation decision is getting closer. They are not able to effect any decisions they might make as
(Page 8)
- guardians, about accommodation for their mother, because of their mother's strenuous opposition to them doing so. Doing so would impact adversely upon their relationship with their mother. If the daughters were forced to make such decisions, they would find this extremely stressful for that reason. Therefore, they do not wish to be appointed as guardians.
28 The Tribunal is not aware of any other private, suitable parties being available to be appointed as guardians. The Tribunal accepts PJB's evidence that her mother will respond to "figures of authority" and believes that a guardian from the Office of Public Advocate could be perceived as such by HAJC and therefore would be able to act upon any decision made by such a guardian.
29 In any case, the Tribunal views any difficulties that the guardian may have due to any opposition by HAJC as at least in part associated with HAJC's illness and as rendering her vulnerable. The Public Advocate's task may still be a difficult one but would more likely be successful than would any decision-making by the daughters.
Wishes of the represented person
30 HAJC's wishes were not directly heard by the Tribunal. She was not present as Dr Patel had indicated in his medical guide, provided to the Tribunal, that HAJC's attendance would be detrimental to her health and would not be in her best interests. Furthermore, he stated that HAJC would not be able to make any contribution.
31 Nevertheless, it is clear from all available evidence that HAJC does not wish to move to alternative accommodation and opposes her daughters in any action they may take towards that aim.
Conclusion and orders
32 The Tribunal accepts that HAJC is vulnerable as a result of her progressive dementia. She is not capable of making reasonable decisions about where she should live, nor about her finances.
33 An accommodation decision is imminent. HAJC, however, opposes a change of accommodation and will not accept her daughters' involvement in such decisions. A change of accommodation may, in the near future, be in her best interests. At that time she is more likely to accept decision-making from an independent person who represents some authority. In this case, that is the Public Advocate. Such an appointment would be protective also of HAJC's relationship with her daughters.
(Page 9)
34 HAJC's finances have been managed informally, for about a year, by her daughters. There is now a need to formalise that by means of an appointment of administrators. Her daughters are available for such an appointment and appear suitable for that role.
35 Therefore, pursuant to s 43 of the Act, in respect of the application for guardianship, the Tribunal orders that:
1. The Tribunal is satisfied that the represented person; has attained the age of 18 years, is:
a) incapable of looking after her own health;
b) unable to make reasonable judgments in respect of matters relating to her person; or
c) in need of oversight, care or control in the interests of her own health and safety; and
d) is in need of a guardian; and
e) cannot have such needs met by other means less restrictive of her freedom of decision and action.
2. The Public Advocate 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.
3. 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.
4. This order be reviewed by 15 December 2007.
37 With respect to the application for administration, pursuant to s 64 of the Act, the Tribunal orders that:
1. NHP and PJB be appointed joint plenary administrators 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 15 December 2007.
(Page 10)
- I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR E LEIPOLDT, SENIOR SESSIONAL MEMBER
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