HDB
[2014] WASAT 108
•27 AUGUST 2014
HDB [2014] WASAT 108
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 108 | |
| 27/08/2014 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:150/2014 | 6 MARCH AND 1 MAY 2014 | |
| Coram: | MR J MANSVELD (MEMBER) MS H MCGLADE (SESSIONAL MEMBER) MS J WALL (SESSIONAL MEMBER) | 1/05/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Public Advocate reappointed as guardian Public Trustee reappointed as administrator | ||
| B | |||
| PDF Version |
| Parties: | HDB |
Catchwords: | Guardianship and administration Capacity Need Best interests Consent to act as guardian and administrator |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 17A, s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 64(1)(a), s 64(1)(b), s 68, s 68(1), s 90, s 90(1) |
Case References: | Nil |
Summary | An elderly woman had been the subject of guardianship and administration orders since 2008. The Public Advocate had been appointed her guardian and the Public Trustee the administrator of her estate.,The woman had been diagnosed with dementia and is now in the advanced stages of the illness. She resides in a nursing home.,The woman has three sons. One of the sons had always disagreed with the guardianship and administration appointments and unsuccessfully challenged the appointments on a number of occasions since 2008.,The son had in the past attempted to take the elderly woman overseas which had put her health and safety at significant risk. As a consequence, the Public Advocate was successful in having a restraining order made against the son such that his contact with the woman had to be supervised. The restraining order remains current.,In the latest review of the guardianship and administration orders, the son maintained his long held view that the Public Advocate and the Public Trustee had not been acting in the woman's best interests.,It was also the son's view that the woman could return to live in her home under his care.,It was the position of the Tribunal that the son was misguided in his endeavours to advocate on behalf of the woman and that his views were not supported by the evidence.,The son nominated a person to act as the woman's guardian and another person to act as her administrator. Both persons withdrew their consent at the hearing.,The Tribunal decided to continue with the appointments of the Public Advocate as the woman's guardian and the Public Trustee as the administrator of her estate. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : HDB [2014] WASAT 108 MEMBER : MR J MANSVELD (MEMBER)
- MS H MCGLADE (SESSIONAL MEMBER)
MS J WALL (SESSIONAL MEMBER)
- GAA 151 of 2014
- Represented Person
Catchwords:
Guardianship and administration - Capacity - Need - Best interests - Consent to act as guardian and administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 17A, s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 64(1)(a), s 64(1)(b), s 68, s 68(1), s 90, s 90(1)
Result:
Public Advocate reappointed as guardian
Public Trustee reappointed as administrator
Summary of Tribunal's decision:
An elderly woman had been the subject of guardianship and administration orders since 2008. The Public Advocate had been appointed her guardian and the Public Trustee the administrator of her estate.
The woman had been diagnosed with dementia and is now in the advanced stages of the illness. She resides in a nursing home.
The woman has three sons. One of the sons had always disagreed with the guardianship and administration appointments and unsuccessfully challenged the appointments on a number of occasions since 2008.
The son had in the past attempted to take the elderly woman overseas which had put her health and safety at significant risk. As a consequence, the Public Advocate was successful in having a restraining order made against the son such that his contact with the woman had to be supervised. The restraining order remains current.
In the latest review of the guardianship and administration orders, the son maintained his long held view that the Public Advocate and the Public Trustee had not been acting in the woman's best interests.
It was also the son's view that the woman could return to live in her home under his care.
It was the position of the Tribunal that the son was misguided in his endeavours to advocate on behalf of the woman and that his views were not supported by the evidence.
The son nominated a person to act as the woman's guardian and another person to act as her administrator. Both persons withdrew their consent at the hearing.
The Tribunal decided to continue with the appointments of the Public Advocate as the woman's guardian and the Public Trustee as the administrator of her estate.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Background
1 HDB (represented person) is an 89-year-old woman who has a longstanding diagnosis of Alzheimer's disease. She resides in a nursing home in Perth, having been moved from Albany in February 2011 where she had previously lived and where she still has a property. The represented person was moved to Perth from a nursing home in Albany.
2 The represented person has three sons, PDB, KDB and PB.
3 Since 2008, the represented person has been under guardianship and administration orders made by the Tribunal pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act). The Public Advocate has been the appointed guardian and the Public Trustee the appointed administrator.
4 The previous appointments made by the Tribunal are:
• 11 June 2008 – Public Advocate appointed as limited guardian;
• 11 August 2008 – Public Advocate reappointed as limited guardian;
• 3 September 2008 – Public Trustee appointed as plenary administrator;
• 16 September 2008 – Public Advocate reappointed as limited guardian;
• 3 October 2008 – Public Advocate reappointed as limited guardian;
• 4 March 2009 – Public Trustee reappointed as plenary administrator; and
• 7 December 2009 – Public Advocate appointed as plenary guardian.
5 Since 2008, PB has made a number of applications for leave to apply for a review of the orders including applications for review by the Full Tribunal under s 17A of the GA Act.
6 The applications were made in 2008, 2009, 2011 (three), 2012 and 2013 and were all unsuccessful.
7 The review of the administration order made on 4 March 2009 and the guardianship order made on 7 December 2009 is the subject of these proceedings.
8 Hearings were held on 6 March and 1 May 2014.
9 The hearing on 6 March 2014 was attended by:
• the delegated guardian from the Office of the Public Advocate (guardian);
• the trust manager from the Public Trustee (administrator);
• PDB; and
• PB.
10 The hearing on 1 May 2014 was attended by:
• the guardian;
• the administrator;
• KDB;
• PB;
• MB (proposed administrator); and
• AT (proposed guardian).
Adjournments
11 In the course of the proceedings PB made a number of requests for adjournments.
12 The first of these was made prior to the hearing on 6 March 2014. PB requested that the represented person attend the hearing with an interpreter and that the hearing be held at the nursing home.
13 The Tribunal received advice from the represented person's general practitioner and nursing home staff that she was unable to contribute to the hearing because of her advanced dementia and frailty.
14 The Tribunal accepted that advice and the request for an adjournment was denied.
15 The second request by PB was at the hearing on 6 March 2014. At that hearing, PB proposed certain persons as guardian and administrator for the represented person; however, those nominated by him were not present at the hearing nor had made submissions to the Tribunal.
16 The Tribunal granted the adjournment and directed PB to arrange for those he proposed as guardian and administrator to attend the adjourned hearing and make submissions as to why they should be appointed.
17 The final adjournment request by PB was at the hearing on 1 May 2014 at which he proposed additional persons be appointed as the represented person's guardian who were not at the hearing nor had made any submission to the Tribunal.
18 The request was denied on the basis that PB had already been given the opportunity to nominate persons as guardian and administrator for the represented person.
Decision of the Tribunal
19 At the hearing on 1 May 2014, the Tribunal decided to confirm the appointment of the Public Advocate as the represented person's guardian and the Public Trustee as the administrator of the represented person's estate.
20 The Tribunal set the date for the review of the orders in five years.
21 The following are the reasons for the Tribunal's decision.
The relevant legislation
Guardianship and Administration Act 1990 (WA)
22 Section 90 of the GA Act enables the Tribunal, upon review of guardianship and administration orders, to amend the orders, revoke the orders or make new orders, including revoking the appointment of any guardian or administrator, appointing a new or additional guardian or administrator, or appointing an alternate guardian. The Tribunal is to make the orders as it considers necessary in the best interests of the represented person (s 90(1) of the GA Act).
23 The GA Act requires the Tribunal to proceed through a number of steps in order to arrive at a decision about whether to reappoint a guardian and administrator for the represented person.
24 A finding must first be made about the represented person's capacity. The starting point is that the represented person is presumed to be able to look after her own health and safety or make reasonable judgments about her person, and is able to make reasonable judgments about her estate (s 4(3), s 43(1)(b) and s 64(1)(a) of the GA Act).
25 The Tribunal must be further satisfied that there is a need for a guardian and administrator to be appointed. Orders should not be made if the represented person's needs can be met by other means less restrictive of her freedom of decision and action (s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act).
26 If guardianship and administration orders are made the Tribunal must decide what should be the scope of those orders. If the represented person's personal needs can be met by the making of a limited guardianship order then a plenary order should not be made (s 4(5) of the GA Act). There is no such express restriction in the making of administration orders, although any limited order made should reflect the needs of the person (s 4(6) of the GA Act).
27 If a guardianship order is made then the Tribunal must decide who should be appointed. Section 44 of the GA Act provides guidance to the Tribunal in the answer to that question. The Tribunal must be satisfied that the proposed guardian will act in the represented person's best interests, will not be in a position where the proposed guardian's interests conflict or may conflict with her interests, and that the person will otherwise be suitable to act as guardian. Suitability takes into account the desirability of preserving existing family relationships; the compatibility of the proposed guardian with the represented person and the person's administrator; the represented person's wishes; and whether the proposed guardian will be able to perform the role that he or she is given. Much the same requirements apply for the appointment of an administrator although it is not expressly provided for the Tribunal to consider a conflict of interest that a proposed appointee may have with the interests of a represented person (s 68 of the GA Act).
28 The Public Advocate is able to be appointed the represented person's guardian only if it is determined by the Tribunal that there is no one else suitable or willing to undertake that role (s 44(5) of the GA Act). The Public Trustee consents to his appointment as administrator should the Tribunal similarly find that no other person is suitable or willing to be appointed to that role (s 68(1) of the GA Act).
29 When going through all the steps just mentioned, the Tribunal must as far as possible seek to ascertain the represented person's views and wishes but ultimately must make a decision in what the Tribunal determines to be in her best interests (s 4(2) and s 4(7) of the GA Act).
The represented person's capacity
30 The represented person has advanced Alzheimer's disease. The most recent reports from her general practitioner and the manager of the nursing home is that the represented person presents in a permanently confused state and is unable to follow even simple instructions.
31 The severity of the diagnosis is disputed by PB, who maintains that the represented person, if given the benefit of an interpreter in her native language (Dutch), would be able to express her wish in respect to the guardianship and administration orders. Despite this, PB concedes that the represented person is someone for whom orders could continue to be made in that she is not able to make personal and financial decisions.
32 The Tribunal is satisfied that the represented person suffers from a progressive dementia and that her mental state has worsened since the last guardianship and administration appointments were made in 2009. She is incapable of looking after her health and safety and is in need of oversight and care in that she requires full care and supervision for all her activities of daily living. Because of her dementia, the represented person is unable to make reasonable judgments about her personal and financial affairs. She continues not to have the cognitive capacity to make decisions for herself, and her condition will not improve.
The guardianship order
33 In her evidence, the guardian states that the decision to relocate the represented person to Perth from Albany in February 2011 was as a consequence of PB attempting to take the represented person overseas without the consent of the guardian. PB made three such attempts in the early stages of the guardianship appointment.
34 The guardian states that a decision was made subsequent to these events to seek a restraining order against PB and this was initially granted by the Court until July 2013. The restraining order permitted PB to only have supervised contact with the represented person as consented to by the guardian. An extension to the restraining order was sought and granted in the period of the current guardianship order. The restraining order expires on 21 July 2015.
35 The guardian states that contact between PB and the represented person is supervised by a Dutch-speaking person under a contact plan developed by the guardian, which currently allows for monthly contact. The represented person is also visited regularly by her other children, PDB and KDB.
36 The guardian states that the represented person sustained a serious fall in September 2012 requiring admission to hospital with multiple fractures to her nose and a laceration to her scalp.
37 During the hospital admission, the represented person was attended by a speech pathologist (she had broken her upper denture in the fall), who assessed her as having a compromised swallowing reflex due to the progression of her dementia. It was recommended that the represented person receive her nutrition by way of a pureed diet with moderately thickened fluids.
38 The guardian states that the represented person has adjusted well to the modified diet. Despite this, the guardian states that PB continues to bring food to the represented person, contrary to the speech pathologist's assessment, which places her at serious risk of choking.
39 The guardian states that there has been an ongoing dispute with PB about whether the denture should be repaired or replaced. PB is of the view the denture should be replaced. The guardian states that an attempt was made by a dentist to assess the represented person but she was resistant to the assessment. Further advice was also obtained from the Australian Dental Association. The guardian states a decision was ultimately made not to proceed with the intrusive and protracted process of the represented person being fitted with new dentures.
40 The guardian states that PB has requested the represented person be seen by a Dutch-speaking general practitioner, a proposal which is supported by the guardian on the condition that the practitioner can attend to the represented person in the nursing home and be on 24 hour call.
41 The represented person is prescribed an antipsychotic medication by her general practitioner to alleviate the symptoms associated with her dementia. From time to time, she displays mild anxiety and agitation and will express a desire to return to her home.
42 The guardian states that given the extent of represented person's care needs, a decision has been made that she continue to reside in a nursing home where she can receive the necessary 24 hour care. Despite this, PB persists in expressing a wish that the represented person be returned to live in Albany in his care.
43 The guardian states that the represented person continues to receive weekly or fortnightly visits by a Dutch-speaking community visitor. PB requested that the represented person also be given access to Dutch television but, after an assessment by an occupational therapist, it was determined that because of her advanced dementia and reduced attention span she would not benefit from that service. The represented person does, however, receive and enjoy music therapy.
44 The guardian states that a good deal of her time is spent responding to the concerns and requests of PB.
45 The guardian submits that the Public Advocate be reappointed as guardian but not in a plenary capacity. The functions proposed to be given are to decide the represented person's accommodation, services, medical treatment, with whom she has contact, to act as next friend, and an authority to ensure there is no further attempt by PB to take her overseas.
46 PB submits that the guardian has not acted in the represented person's best interests. He states that the guardian has forbidden the nursing home staff to discuss the represented person's health needs with him. He cites an example of a cancer on the represented person's ear which he says was neglected despite him making staff aware of its presence.
47 PB states that he is aware of specialist dentists who will visit the nursing home and deal with the represented person's dentures which he submits can and should be replaced. He also submits that the represented person should not be on what he calls a liquid diet because it is detrimental to her health.
48 PB states that the guardian has rarely visited the represented person and, in the two years she was residing in a nursing home in Albany, he only met once with the guardian.
49 PB states that in his view the represented person is not coping in the nursing home and that she continues to ask him to allow her to return to her home in Albany. He believes the represented person is being chemically restrained after saying that she wanted to return home. PB submits that the represented person should reside with him in her Albany property.
50 PB submits that the person who supervises his contact with the represented person should be appointed her guardian to make decisions about her accommodation, support services, medical treatment and contact with others.
51 The evidence of AT, one of the persons nominated by PB as guardian, is that PB asked her to be guardian if the represented person was able to return to her home in Albany, as it would only involve visiting from time to time to ensure the represented person and her carer were managing. AT is a former neighbour of the represented person.
52 AT states that is the extent of her understanding of the role of guardian. She was not aware that a guardian acts principally as a decision-maker.
53 At the hearing on 1 May 2014, AT withdrew her consent to act as the represented person's guardian.
54 In his evidence, PDB states he is satisfied with the efforts of the guardian and does not agree with the concerns raised by PB. He states that when visiting the represented person, he finds that communication with her is now very difficult because of the effects of her dementia, but he otherwise finds her to be in reasonable physical health. PDB states that it is difficult to leave the represented person after a visit because she still seems to recognise some bond with her children and she wants to leave with them. However, PDB submits that he does not believe this is a reflection of the quality of care the represented person is receiving in the nursing home.
55 It is the submission of PDB and KDB that the Public Advocate be reappointed as the represented person's plenary guardian.
The administration order
56 In his evidence, the administrator states that the represented person's estate comprises of a commercial property, two residential properties, (one in Perth which is tenanted and the other in Albany in which PB lives rent free), two motor vehicles, both of which are retained for PB's personal use, shares in a family company which is currently the subject of a buyback of its shares, cash funds and the balance of an accommodation bond paid to the nursing home.
57 The administrator states PB unsuccessfully challenged the restraining order sought by the guardian, and the represented person was awarded $4,000 in costs against him. Together with an earlier costs award, PB owes the represented person's estate $6,700 which remains unpaid.
58 The represented person's income consists of the net rental from the commercial property and dividends received from the family company. The income is currently sufficient to meet the represented person's expenses including those costs she pays for the benefit of PB.
59 The administrator states that the share buyback has arisen as a consequence of the need to deal with a bequest to a charitable body made in the Will of the represented person's late husband. The share buyback is preferred over the liquidation of the family company because liquidation would result in a tax liability that would have a negative impact on the value of the represented person's holdings in the company.
60 The submission of the administrator, supported by the guardian, PDB and KDB, is that the Public Trustee be reappointed in a plenary capacity and that the order authorise the administrator to continue to make provision for PB out of the represented person's estate.
61 In his evidence, PB challenges the decisions made by the administrator since his appointment in September 2008 regarding the represented person's interest in her late husband's estate and the outcome of a Family Court matter that was current at the time of the late husband's death. In essence, PB asserts that the represented person did not receive her just entitlements, and questions the bequest made by the late husband to the charitable body.
62 The administrator submits that the decisions to which PB refers have been made in the represented person's best interests and most have been dealt with in previous reviews of the administration order.
63 The evidence of MB, the person proposed by PB as administrator of the represented person's estate, is that he was approached by PB to act in that role principally so that he could communicate with the represented person in the Dutch language. PB did not provide him with the details of the represented person's estate. MB states that he has not previously dealt with the represented person's taxation or other financial affairs.
64 At the hearing on 1 May 2014, MB withdrew his consent to be appointed the administrator of the represented person's estate.
The decision of the Tribunal
65 It is common ground that the represented person is in need of a guardian and an administrator. The represented person is incapable of making her own decisions and there remains disagreement as to the conduct of her personal and financial affairs.
66 It is unfortunate that the disagreement rests fundamentally with PB, one of the represented person's sons. He retains very strong and fixed views about the represented person's accommodation, her medical treatment, with whom she should have contact and the state of her estate.
67 The Tribunal accepts that PB is devoted to the represented person; however, his views about what is best for her personal care are not supported by the evidence.
68 The represented person is in the advanced stages of dementia. She requires 24 hour care and supervision. PB's belief that he can care for the represented person in her home in Albany is not credible. He has not provided any evidence to show how this could occur, other than to assert that is what the represented person wants.
69 PB has in the past put the represented person at risk when he has attempted to take her overseas and currently when he continues to provide her with solid food contrary to the assessment of a speech pathologist that the represented person has a compromised swallowing reflex.
70 The Court has found that there is an ongoing need for PB to be restrained from seeing the represented person other than through supervised contact consented to by the guardian.
71 It seems to the Tribunal that a major task of the guardian has been to contain the behaviours of PB in his misguided endeavours to advocate on the represented person's behalf.
72 As for the represented person's estate, PB continues to agitate on matters that the Tribunal accepts are largely settled and which have been considered in reviews before the Tribunal at which the Public Trustee has been reappointed as the represented person's administrator.
73 In large part, the evidence of PB has been a restatement of his long held views that have not been accepted in previous hearings before the Tribunal and which have not assisted this Tribunal in the current review of the guardianship and administration orders.
74 The persons proposed by PB to act as guardian and administrator for the represented person and who attended the hearing both withdrew their consent once they were apprised of the responsibilities inherent in these appointments. The Tribunal is satisfied that the information given by PB to these persons was predicated on his view and wish that the represented person would return to live in her property in Albany with PB as her carer.
75 It is clear to the Tribunal on the evidence before it that it is in the represented person's best interests that the Public Advocate and the Public Trustee be reappointed as her guardian and administrator. Both should continue with plenary authority because the behaviours of PB are sufficiently unpredictable to warrant an authority to deal with any situation that may arise for the represented person.
76 Given the represented person's progressive illness, the orders should be made for the maximum period available to the Tribunal, that being five years.
Orders
77 The Tribunal makes the following orders:
Administration
The Tribunal declares that the represented person:
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b) is in need of an administrator of her estate,
and the Tribunal orders that:
1. The order is amended so that it now reads:
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. The administrator is authorised to expend the represented person's funds for the benefit of her son, PB, including but not limited to those relating to his occupancy of [address deleted].
3. This order is to be reviewed by 1 May 2019.
The Tribunal declares that the represented person;
(a) is incapable of looking after her own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to her person;
(c) is 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 the Tribunal orders that:
1. The order is confirmed as follows:
The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia is appointed plenary guardian of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3. This order is to be reviewed by 1 May 2019.
I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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