HL and DC
[2008] WASAT 50
•4 MARCH 2008
HL and DC [2008] WASAT 50
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 50 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1803/2007 | 2 NOVEMBER 2007 | |
| Coram: | MR M ALLEN (SENIOR MEMBER) | 3/03/08 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Administration order is revoked and the application for a guardianship order is dismissed | ||
| B | |||
| PDF Version |
| Parties: | HL DC |
Catchwords: | Guardianship and administration Review of an administration order made in July 2006 and consideration of whether a guardianship order should now be made Represented person suffering from many physical ailments but much improved physically and mentally since the time of the making of the administration order Finding that represented person still suffers from some decisionmaking disabilities but able to make decisions concerning financial affairs and personal lifestyle matters, and able to call on friends to assist in these regards, including the ability to appoint an enduring attorney Finding that there was no longer a need for an administration order and no need for a guardianship order Revocation of administration order and dismissal of application for guardianship order |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2), s 43(1), s 46(1), s 64(1), s 86, s 87(1) |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : HL and DC [2008] WASAT 50 MEMBER : MR M ALLEN (SENIOR MEMBER) HEARD : 2 NOVEMBER 2007 DELIVERED : 4 MARCH 2008 FILE NO/S : GAA 1803 of 2007
- GAA 1917 of 2007
- Applicant
AND
DC
Represented Person
Catchwords:
Guardianship and administration - Review of an administration order made in July 2006 and consideration of whether a guardianship order should now be made - Represented person suffering from many physical ailments but much improved physically and mentally since the time of the making of the administration order - Finding that represented person still suffers from some decisionmaking disabilities but able to make decisions concerning financial affairs and personal lifestyle matters, and able to call on friends to assist in these regards, including the ability to appoint an enduring attorney - Finding that there was no longer a need for an administration order and no need for a guardianship
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order - Revocation of administration order and dismissal of application for guardianship order
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43(1), s 46(1), s 64(1), s 86, s 87(1)
Result:
Administration order is revoked and the application for a guardianship order is dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Represented Person : Self-represented
Solicitors:
Applicant : N/A
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 This matter concerned the review of an administration order made in July 2006 and consideration of whether a guardian should now be appointed for the represented person (a 62-year-old man). The Tribunal was satisfied that since the making of the administration order the man's physical and mental health had improved to such an extent that, whilst he still suffered from some residual decision-making disabilities, he was generally able to make reasonable judgments about his own affairs and make decisions about his life and matters relating to his person. The Tribunal was also satisfied that he could call upon the assistance of many friends to assist in managing his affairs generally, including the appointment of an enduring attorney.
2 The Tribunal was not satisfied that the administration order was still needed and revoked the order. The Tribunal was not satisfied that a guardianship order was needed and dismissed the application.
Background
3 Mr C is a 62-year-old man. In May 2006 his former wife, Ms TC, applied to the Tribunal for guardianship and administration orders to be made for Mr C pursuant to the provisions of the Guardianship and Administration Act 1990 (GA Act). Those applications were made on the basis that Mr C was suffering from dementia and was occasionally delirious, with the consequence that he was unable to make decisions. In the event, on 3 July 2006, the Tribunal appointed Ms TC as the plenary administrator of Mr C's estate with that order to be reviewed by 3 July 2011. The application for the appointment of a guardian was dismissed.
4 In October 2007 Ms HL, who is a social worker at the nursing home in Perth in which Mr C resides, applied to the Tribunal seeking leave to apply to have the administration order reviewed (s 87(1) of the GA Act) and for the Tribunal to conduct such a review pursuant to s 86 of the GA Act . Shortly thereafter Ms HL also applied to the Tribunal for the appointment of a guardian for Mr C.
5 The matters were heard together and I granted leave to Ms HL to apply for the review of the administration order. The hearing was attended by Mr C, Ms HL, Ms GN (a clinical nurse at the nursing home where Mr C resides), Ms B (an officer of the Office of the Public
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- Advocate), and Mr R and Ms R (officers of the Office of the Public Trustee). Dr W, Mr C's long standing general practitioner and friend, gave evidence via telephone during the hearing.
6 At the conclusion of the hearing I announced my decision on the two substantive applications before the Tribunal, namely that the application for the appointment of a guardian for Mr C be dismissed and that the administration order made on 3 July 2006 be revoked. At the same time I stated short reasons for those decisions. Ms HL subsequently requested a statement of the reasons for the decision and this statement is provided accordingly.
The issues to be determined
7 In the review of an administration order, the Tribunal must decide whether the existing order should continue to have effect in its original or amended form, or be discharged. Before an administration order can be made or confirmed on review, the Tribunal must be satisfied that the preconditions for the making of such an order, as set out in s 64(1) of the GA Act, are made out. That provision relevantly provides that the Tribunal may appoint an administrator if it is satisfied that the person concerned:
"(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b) is in need of an administrator of his estate."
8 In the case of an application for a guardianship order, the preconditions for the making of such an order are set out in the GA Act at s 43(1), which relevantly provides that the Tribunal may appoint a guardian if it is satisfied that the person concerned:
"(a) has attained the age of 18 years;
(b) is -
(i) incapable of looking after his own health and safety;
(ii) unable to make reasonable judgments in respect of matters relating to his person; or
- (iii) in need of oversight, care or control in the interests of his own health and safety, or for the protection of others;
and
- (c) is in need of a guardian … ".
9 In exercising its powers under the provisions referred to above, the Tribunal must observe the principles set out in the GA Act s 4(2), which require the Tribunal to have as its primary concern the best interests of Mr C; to presume that Mr C is capable of the matters referred to above until the contrary is proved to the Tribunal's satisfaction; to not make orders if the needs of Mr C could be met by other means less restrictive of his freedom of decision and action; to make any orders in terms that impose the least restrictions possible in the circumstances on Mr C's freedom of decision and action; and to, as far as possible, seek to ascertain the views and the wishes of Mr C.
Consideration
10 There is no dispute that Mr C has attained the age of 18 years.
11 At the Tribunal hearing in July 2006 the medical evidence concerning Mr C's health problems painted a picture of a man with many serious health issues. The full extent of those issues are summarised in a report dated 12 March 2007 from Dr M, a nephrologist, that was before me in the present proceeding. It is not necessary to set out the full extent of Dr M's description of Mr C's health issues and diagnoses, other than to record that he had spent 138 days in hospital prior to his discharge in May 2006 and that his health issues included: end-stage renal failure; acute chronic renal impairment; he had had a liver transplant in 1987 for liver disease; he suffered from cerebrovascular, cardiovascular and peripheral vascular disease; and had bilateral lower limb amputations. He had also suffered bronchopneumonia and staphylococcus septicaemia, and a toxic delirium during his hospitalisation. At the July 2006 hearing the medical evidence was, and Mr C readily acknowledged it at the hearing before me, that at that time his mental state was extremely poor.
12 Mr C has, since leaving hospital, resided at a nursing home that he dislikes intensely and he is considerably frustrated by the need to reside there in what he perceives to be very unsatisfactory living conditions for a person in his position, with considerable restrictions on his freedom of movement.
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13 Ms HL's evidence to the Tribunal was that she had made the applications for review of the administration order and a guardianship order because the nursing home had experienced great difficulty in making contact with Ms TC in order to resolve a number of matters concerning Mr C's finances - including the payment of a pharmacy account for medication, payment of an ambulance fund and payment of Mr C's personal spending account, which was significantly in arrears; as well as some arrears in relation to Mr C's daily care fees. On a number of occasions Ms TC had failed to respond to attempts to contact her. In addition, Ms HL said that there were issues in relation to Mr C's access to medication, his attendance for regular dialysis sessions and, generally, the need to make long-term decisions about where he should reside - it being apparent that Mr C did not wish to continue to live at the nursing home. It was thought that Mr C may not be in a position to make realistic decisions for himself about future accommodation.
14 Mr C readily acknowledged to me that his physical and mental health in mid-2006 was very poor and the making of an administration order was appropriate at that time. However, he said that his physical and mental health had improved greatly in the time since the administration order was made. He was aware that there had been some difficulties in communicating with Ms TC and he had been somewhat reluctant to follow up with her the concerns that the nursing home were expressing about financial matters because he was aware that Ms TC had commenced a new relationship with another man. That relationship had now ended, and he was having more and better dealings with Ms TC.
15 Mr C acknowledged that he had not always been diligent in arranging supplies of medication, attending medical appointments or treatment sessions - but that he had recently had a long talk with the staff at the Joondalup Health Campus where he went for his dialysis sessions, and he now had a much better understanding of what was required and would have no difficulty complying in the future. He said that he now realised that medical treatment for his various conditions would be a part of his life forever and he accepted that as a fact of life.
16 Mr C said that prior to his hospitalisation he had lived with a long-term friend in a rented house and he wished to return to that situation. His friend was quite willing to have him and they recognised that there may be a need for modifications to the house to accommodate Mr C's wheelchair and his other physical limitations. He knew that this would require the approval of the landlord, but did not think that would be
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- a problem. If it were, then he believed that his friend would be happy to move to another house.
17 Mr C said that he had many friends who were prepared to assist him in whatever was needed, including by providing funds for the cost of any modification to his house or providing advice and assistance in the management of his affairs - financial or otherwise. Mr C acknowledged that he may have been a difficult resident at the nursing home because he was most unhappy living there and he saw it as inappropriate for his needs. He acknowledged that he did not have a good understanding of his current financial position, including his possible entitlement to social security benefits and he had, for the reasons mentioned above, not tried to resolve these matters with Ms TC. He said that he would be quite prepared to look at appointing one of his friends as his enduring attorney to assist in the resolution of financial matters.
18 Ms GN said that in the 12 months or so that she had been at the nursing home it was clear that there had been major improvements in Mr C's physical health and physical capabilities. His physical mobility and his ability to look after himself on a daily basis had improved to the extent that they no longer thought it necessary to get an ACAT assessment of his care needs.
19 The recent medical evidence before me consisted of the report from Dr M, referred to above (which was submitted by Ms HL), and a report from Dr W.
20 Dr M's report states that when he saw Mr C in February 2007, he found him to be "affable, well nourished, of good colour, and of reasonably clear mind. His long-term memory seemed well preserved and he told me that he was performing in a very independent manner in the nursing home … ", which Mr C thought was inappropriate accommodation. Dr M recorded that he had confirmed with the nurse manager at the nursing home much of what Mr C had said to him in terms of his overall independence. Dr M recorded that Mr C's "… mental state overall seems markedly improved from when he left hospital".
21 Dr W, in his report, expressed the opinion that Mr C was capable of making reasonable decisions at the present time in relation to his personal health care, living situation and financial affairs, but with the qualification that Mr C needed to be alcohol free. Dr W also considered that Mr C was capable of executing a valid enduring power of attorney at the present time. In his oral evidence given at the hearing Dr W confirmed those
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- opinions, noting that he had observed Mr C over more than 20 years as both his medical advisor and as a friend. He said that Mr C had improved "100[%]" since his discharge from hospital in mid-2006, and he was now mentally able to care and look after himself. Mr C had impressed Dr W at a recent function with his memory and Dr W considered that Mr C had no long-term or short-term memory problems. He said that he still sees Mr C in his capacity as a doctor, and Mr C understands what he is told about his medical conditions and he is perfectly able to understand and weigh up options and consequences relating to his physical ailments and their treatment.
22 Dr W said that he thought that Mr C could live independently but he needed someone to call a few times a week to make sure that he was coping. Dr W said that Mr C had a large group of friends and he was highly regarded by them. He (Dr W) and some of Mr C's friends had recently raised an amount of money that was available to Mr C and he had no doubt that he could do that again if it were needed.
23 Ms B, on behalf of the Public Advocate, commented that it appeared from Dr M's report that there may have been permanent damage from the cerebrovascular disease that may have impaired Mr C's decision-making capabilities. In addition, Ms B said that although Mr C appeared to have had the ability to manage significant businesses in the past he did not seem to have been able to sort out what had been happening with his pension over the last 12 months, nor had he been able to make any plans or organise alternative accommodation for himself, even though he wanted to leave the nursing home.
24 My assessment of Mr C was that he acknowledged his many physical and mental problems, and understood that it had been appropriate for the administration order to be made at the time that it was. Likewise, he now understood that medical treatment would now be a major part of his life in the future and that it was in his best interests to make sure that he received that treatment and to cooperate with the persons responsible for it. In addition, I am satisfied that Mr C is aware that he needs assistance in the management of his financial affairs and he is grateful for the many offers of assistance that he has received from his many friends.
25 I am inclined to agree with Ms B's assessment that Mr C continues to suffer from residual decision-making difficulties, as evidenced by his apparent inability to sort out his financial affairs and arrange alternative accommodation over the last six to 12 months. However, I am also satisfied that at least some of Mr C's reluctance to become involved in his
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- financial affairs is because of his wish to not interfere with Ms TC's role as administrator of his estate. It is unfortunate that that administration has not been as active as perhaps it should have been, as evidenced by the difficulties experienced by the nursing home in having various accounts paid and Mr R's evidence that the Public Trustee had encountered difficulties in contacting Ms TC and her failure to respond to correspondence in relation to the late filing of accounts.
26 Notwithstanding those residual decision-making difficulties, I am not satisfied that any impairment is so great as to make it possible to say that Mr C is a person who suffers from the decision-making disabilities referred to in GA Act s 43(1)(b) and s 64(1)(a). Nevertheless, even if that is the case, I am not satisfied that he is a person who is in need of either an administrator or a guardian. In relation to his financial affairs, I accept Mr C's evidence that he has a number of friends who are able to assist him financially and whom he could appoint as his attorney under an enduring power of attorney arrangement. Similarly, I am satisfied that Mr C is in a position now to call upon other people to help him organise alternative accommodation. I am satisfied that Mr C knows what sort of accommodation he requires and that he has the ability to make decisions about where he wishes to live, and to consent to the medical treatment that he needs.
27 Overall, I am not satisfied that Mr C has a need for either an administrator or a guardian.
28 It was for those reasons that I revoked the administration order made on 3 July 2006 and dismissed the application for the appointment of a guardian.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M ALLEN, SENIOR MEMBER
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