IE
[2024] WASAT 104
•18 SEPTEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: IE [2024] WASAT 104
MEMBER: DR M EVANS-BONNER, SENIOR MEMBER
HEARD: 20 AUGUST 2024
DELIVERED : 20 AUGUST 2024
PUBLISHED : 18 SEPTEMBER 2024
FILE NO/S: GAA 3134 of 2024
IE
Represented Person
Catchwords:
Guardianship and administration - Periodic review - Orders made five years ago appointing Public Advocate as guardian and Public Trustee as administrator - Initial orders made due to hoarding and self-neglect - No current evidence of mental disability - Presumption of capacity no longer rebutted - Represented person now has good insight - Represented person is no longer a person for whom orders can be made - Guardianship and administration orders revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(7), s 43, s 43(1)(b), s 43(1)(c), s 64, s 64(1), s 84
Result:
Guardianship and administration orders revoked
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered orally and have been taken from the transcript of the hearing. They have been edited to make necessary corrections or annotations for the purposes of correcting grammatical errors or infelicity of expression.)
Introduction
IE is an 81-year-old woman who is currently living in an aged care facility.
On 27 August 2019, the Tribunal made guardianship orders under s 43 of the Guardianship and Administration Act 1990 (WA) (GA Act) and administration orders under s 64 of the GA Act, appointing the Office of the Public Trustee (Public Trustee) as administrator and the Office of the Public Advocate (Public Advocate) as guardian for a period of five years with a review date of 27 August 2024.
The orders were made because IE was living in unsanitary conditions due to hoarding, was not accepting services, and was drinking alcohol to excess.
After the orders were made, the Public Advocate decided that IE should live in an aged care facility where she could receive appropriate care.
Section 84 of the GA Act provides that orders must be reviewed within a period not exceeding five years from the date of the order. This is a review of those orders made on 27 August 2019. It is what is known as a periodic review.
In reviewing these orders, the best interests of IE are my primary concern (s 4(2) of the GA Act). I also need to consider IE's views and wishes (s 4(7) of the GA Act). IE's strong view is that she wants to make her own financial and personal decisions. She does not like living in the aged care home. She wants to purchase an independent living unit in a retirement village and has been making enquiries to do so. IE has written me a letter which she has handed to me today where she expresses very strong wishes that she wants to be independent and that she is able to make good decisions about her finances, medical treatment, and services and accommodation.
IE has also told me about her life story in her letter and has shown a great deal of insight into her hoarding and the reasons for it.
I heard this review on 20 August 2024. IE came to the hearing and gave the evidence that I have described. IE's friend, EH, who volunteers at the aged care facility also attended the hearing. She has visited IE once a week for approximately five years. EH described IE as one of the most independent people in the aged care facility. She said that IE keeps her room clean and tidy and enjoys working in the garden.
JP, IE's guardian from the Public Advocate also attended the hearing. She confirmed her view in her report that she did not think IE was a person for whom orders could be made. She did, in her report, express a view that the guardianship order should continue with respect to accommodation. When I asked her about this, she agreed that IE was not a person for whom an order could be made, and that IE would be able to independently pay for someone to help her find accommodation.
Administration
I will consider the administration order first. An administrator is a person appointed by the Tribunal who can make decisions about a person's financial affairs and that is sometimes referred to as their estate.
As the current orders must be reviewed by 27 August 2024, I need to consider whether to make new orders to appoint an administrator. To make those orders, I need to be satisfied of three things under s 64(1) of the GA Act.
Firstly, that IE suffers from a mental disability. Secondly, by reason of that mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate. If the answer to those two questions is yes, then thirdly, I need to consider whether IE needs an administrator.
A medical report from Dr B dated 18 July 2024 who is the doctor in the aged care home says that IE does not suffer from a mental disability and that she has the capacity to make decisions about simple financial matters, complex financial matters and legal matters.
A letter from Dr S, a consultant geriatrician dated 28 July 2024, states that IE scored 29 out of 30 on their Montreal Cognitive Assessment (MoCA). That test is a screening test for mild cognitive dysfunction. Dr S also stated that, although IE has had minimal control over managing her finances over the last five years, she had a good understanding of the costs of purchasing an independent unit in a retirement village set-up, as well as the amount of bond that she would have to pay.
A service provider report from registered nurse Ms D from the aged care facility dated 18 July 2024 states that IE can use money or a card when shopping in the community, that she can perform simple tasks on an iPad, is able to access taxi vouchers and can catch the bus.
That report also states IE's high score of 29 out of 30 on her MoCA. Ms D also states that IE can work out moderately complex math calculations when writing them down. It was Ms D's opinion that IE can make financial decisions that are beneficial to her interests. For example, she is making plans to organise surgery for her knees. Ms D also said that IE is careful and aware of her bank balance. For example, she stopped paying her companion because it was too expensive and she got minimal engagement.
I am also satisfied after speaking to IE that she is a person who can make good decisions about her finances. She seemed very thoughtful about her finances and had investigated independent living and the cost of having someone to assist her with that.
The medical evidence indicates, and I am satisfied that, IE does not suffer from a mental disability. Additionally, I am satisfied, based on the evidence before me, that she can make reasonable judgments about matters relating to her estate.
I therefore find that the administration order should be revoked.
Guardianship
I will now consider guardianship. A guardian is someone appointed by the Tribunal who can make personal decisions on behalf of a person. This can include decisions about accommodation, medical treatment and support services.
As I have mentioned, the current orders must be reviewed by 27 August 2024. I therefore need to consider whether to make new orders to appoint a guardian for IE.
A guardian can be appointed if the Tribunal is satisfied that a person is incapable of looking after their own health and safety; unable to make reasonable judgments in respect of matters relating to their person; or is in need of oversight, care or control in the interests of their own health and safety or for the protection of others (s 43(1)(b) of the GA Act). There must also be a need for a guardian (s 43(1)(c) of the GA Act).
A person is also presumed to have capacity until the contrary is proven to the satisfaction of the Tribunal (s 4(3) of the GA Act).
Whether the presumption of capacity can be overturned requires a consideration of the medical evidence. As I have already mentioned, IE scored 29 out of 30 on the MoCA screening test which is a high score. With respect to IE's capacity to make personal decisions, the medical evidence includes the medical report from Dr B dated 18 July 2024, which says that IE is capable of making reasonable decisions in relation to medical treatment and procedures, accommodation, (such as identifying and securing housing that is appropriate to her care and support needs) and identifying and securing appropriate support services.
The service provider report from Ms D, dated 18 July 2024, states that IE is able to understand and follow advice concerning medical treatment effectively, that she is able to accept services appropriate to her support requirements, and that she has insight into her mobility issues and uses elbow crutches for mobility safety outside her room. The report does, however, say IE requires some prompts to keep her room free from clutter and hoarding materials.
The letter from Dr S dated 28 July 2024 states that IE continues to demonstrate very good insight into her previous limitations and the reason why she entered residential care in the first place. Dr S assessed IE as currently having capacity to make decisions about her living arrangements and said that she had the physical and cognitive capacity to trial living independently in the community despite living in residential care for the past five years.
I also note a letter dated 19 August 2024 from Ms H, nurse practitioner. This letter was handed to me this morning before the hearing. This letter states that, despite having lived in residential aged care, IE has maintained her independence with all aspects of personal care, is able to self-medicate, and can independently access community shops and appointments using public transport.
It also states that IE is consistently orientated, engages well and has a good understanding of her own abilities, health and needs and is able to make good decisions about her care. It also emphasises IE's repeated wishes and frustrations at having a guardian and administrator and that she has capacity to make her own decisions and wishes to live independently.
I also note that in the Public Advocate's report dated 9 July 2024, Ms P says that IE has had a functional assessment undertaken, which indicates that it is possible for her to live independently in the community.
Thus, on the evidence before me and the evidence from IE, I am not satisfied that the presumption of capacity can be overturned. I find that IE does have capacity. She does not need a guardian.
As IE is no longer a person for whom orders can be made, the guardianship order should also be revoked. The orders that I will make today are that the administration order dated 27 August 2019 is revoked and the guardianship order of the same date, 27 August 2019, is also revoked.
Orders
The Tribunal orders:
Administration
1.The administration order dated 27 August 2019 is revoked.
Guardianship
2.The guardianship order dated 27 August 2019 is revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR M EVANS-BONNER, SENIOR MEMBER
18 SEPTEMBER 2024
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