IFC and PC
[2010] WASAT 153
•6 AUGUST 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: IFC and PC [2010] WASAT 153
MEMBER: MS S GILLETT (MEMBER)
HEARD: 6 AUGUST 2010
DELIVERED : 6 AUGUST 2010
FILE NO/S: GAA 1753 of 2010
GAA 1837 of 2010
BETWEEN: IFC
Applicant
AND
PC
Proposed Represented Person
Catchwords:
Applications for guardianship and administration - Need for a guardian - Need for an administrator
Legislation:
Guardianship & Administration Act 1990 (WA), s 110ZD
Result:
Applicant appointed plenary administrator
Public Advocate appointed limited guardian to determine contact
Category: B
Representation:
Counsel:
Applicant: Self-represented
Proposed Represented Person : Self-represented
Solicitors:
Applicant: N/A
Proposed Represented Person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Applications for guardianship and administration were made to the Tribunal by IFC, in respect to his wife, PC, who has dementia. The applicant proposed that he be appointed guardian and administrator. PC did not attend the hearing and the Tribunal accepted that, due to her significant cognitive impairment, PC was no longer able to express her views and wishes concerning the applications.
It was not in dispute, and the Tribunal found on the evidence, that PC was a person in respect of whom both guardianship and administration orders could be made. The Tribunal was satisfied that there was a need for the appointment of a plenary administrator for PC and appointed IFC to act on his wife's behalf.
The Tribunal was further satisfied that PC's husband and adult children were able to provide consent for her medical treatment by other less restrictive means, that this arrangement was operating in PC's best interests and that there exists no need for a guardian to be appointed for this purpose. However, the Tribunal found that a guardian was needed to make decisions about whether PC should have contact with another party and the extent of such contact. The Tribunal gave oral reasons for its decision and appointed the Public Advocate limited guardian for PC with authority to determine what contact the represented person should have with others and the extent of that contact.
The Tribunal's oral reasons with minor editing follow.
The decision
This application is brought by IFC seeking his appointment as administrator and guardian of his wife, PC. As set out at the beginning of this hearing, the Tribunal's primary concern is that the applications made must be decided in PC's best interests. In respect to both of the applications, the Tribunal is satisfied based on the report of Dr C, but also on the information from parties present at the hearing today that the presumption of capacity in respect to PC is displaced, and the Tribunal finds that PC is someone for whom both guardianship and administration orders may be made.
Administration
In respect to the administration application, it is clear that PC's financial affairs are very closely entwined with the financial affairs of her husband. The Tribunal finds that PC has a mental disability - that being the dementia from which she now suffers. It is further understood that PC may have some degree of acquired brain injury as a result of recent seizures. Even if that were not so, the Tribunal is satisfied that due to PC's significant level of cognitive impairment, she is unable to make reasonable judgments in respect to her financial affairs, and her diminished capacity in this regard is contributed to by her confusion, her significant memory problems and by her general disorientation.
It is evident to the Tribunal that for quite some time PC has been unable to manage her financial affairs and that her financial affairs have been managed by her husband. The Tribunal is satisfied that there is a need for someone to have legal authority to act on her behalf in respect to her financial affairs. Whilst the existence of the joint accounts has meant that IFC has been able to continue to look after her affairs, it is understood that there are accounts that are held solely in PC's name. The Tribunal is also satisfied that there is a need for a formal order, because PC no longer has the capacity to authorise anyone to act on her behalf, and a formal order will operate both to protect her interests and to protect the interests of anyone who is acting on her behalf.
In considering who should be appointed as administrator, IFC has proposed that he be appointed administrator to act on his wife's behalf and the Tribunal is satisfied that he will act in the best interests of his wife and that he is suitable to undertake this role. Although it is very difficult for the Tribunal to ascertain what PC's views or wishes are, given her level of incapacity now, it is evident that she has for very many years been in a position where her financial interests have been very much entwined with her husband's interests.
The Tribunal is of the view that this circumstance provides some guidance of PC's wishes; that is, that her affairs would continue to be managed by her husband. The Tribunal is satisfied that it is in PC's best interests for IFC to be appointed as her plenary administrator. A plenary order rather than a limited order is made as there is a need for the sale of property, for ongoing decisions about payment of bond money, and a range of other functions which an administrator may undertake. If a limited administration order was made, it would not have the effect of increasing PC's freedom of decision and action; however, it may create the need for the administrator to have to come back to the Tribunal because he does not have the specific authority required to undertake a particular function.
Consequently, a plenary order will be made. This order will be made for a period of five years. This is the longest period for which the Tribunal can appoint an administrator; however, orders are not set in stone and if circumstances change, an application can be made to have the order reviewed. IFC may make that application or, if anyone else other than IFC wishes to have the order reviewed, an application for leave to review the order is also required.
Guardianship
In respect to the guardianship application, the Tribunal is satisfied that PC is now incapable of looking after her own health and safety, that she is unable to make reasonable judgments in respect to matters relating to her person, and that she is in need of oversight and care. It may be, as Dr C has indicated, that she has complied with the various treatments that have been provided; however, complying with such treatment is not the same as making an informed decision about that treatment and, given her level of confusion, her lack of insight and comprehension and her memory problems, the Tribunal is satisfied that PC is not able to make informed decisions on her own behalf. The Tribunal is of the view that PC would be at risk in the absence of there being someone else able to make decisions on her behalf.
In considering the question of what need exists for a formal order appointing a guardian, the Tribunal is mindful that there are decisions that have been made and are being made on PC's behalf in relation to medical treatment. It is understood that IFC is the person responsible for making treatment decisions in accordance with s 110ZD of the Guardianship and Administration Act 1990 (WA), that he is willing to continue to make treatment decisions on behalf of his wife and that there is no concern that he would not be able to continue to do so in PC's best interests. This is the view expressed by all parties present at the hearing. As this represents a less restrictive arrangement which is in place and which is operating in PC's best interests, the Tribunal does not find that there is a need for a guardian to consent to medical treatment because that is already provided for.
In respect to whether a need exists, at the present time, for a guardian to decide where PC is to reside, the Tribunal understands that there have been decisions made by PC's family following the assessment by the Aged Care Assessment Team that she requires low level residential care. The Tribunal accepts that due to PC's deteriorating physical and cognitive condition, her care requirements may change in the future; however, the Tribunal understands that, at the present time, there is no dispute in relation to her care and accommodation and consequently, there is no need for a guardian to be appointed with the authority to make decisions about accommodation.
The Tribunal notes that SMF, a longstanding friend of PC, suggested that he would be willing to provide care for PC; however, given the evidence that there has not been any contact between PC and SMF for about five weeks and given also that there has been a deterioration in PC's level of functioning over that short period, the Tribunal considers that there is no immediate need for decisions to be made concerning where PC is to reside.
The Tribunal is of the view, however, that there is a need for a guardian in respect to the issue of who PC should have contact with and, in particular, in relation to the dispute that exists between PC's family and SMF as to the contact that PC has with SMF. The Tribunal has considered carefully the question of who should be appointed as guardian and is of the view that there is a need for an independent appointment of the Public Advocate to make decisions in respect to contact.
IFC proposed that he be appointed as guardian. SMF has also indicated he is willing to take on the role of guardian, to make decisions on behalf of PC. The Tribunal is of the view that both IFC and SMF would be unable to set aside the particular views they have now in relation to the question of contact. IFC has expressed the view that it would not be in PC's interest to have any contact with SMF and that contact between PC and SMF since his wife's hospitalisation has been deleterious to her. SMF has expressed the view that it was in PC's interest to have contact with him and he has disputed that past contact since PC's hospitalisation has had any negative effect on her wellbeing.
The Tribunal considers that there is a need for independent judgment to be exercised about what contact PC has with SMF: having regard to information that is available from existing records of what has occurred in the past; having regard to what can be determined as to PC's views and wishes; and further, having regard to an independent assessment, if there is to be contact, of the effect of that contact on PC.
The Tribunal therefore appoints the Public Advocate as a limited guardian for PC with the sole function to determine what contact, if any, the represented person should have with others and the extent of that contact. The Tribunal approves delegation by the Public Advocate of her function as guardian to one of her officers. The order appointing the Public Advocate is made for 12 months, because there is a need for a significant amount of information to be gathered and, depending on the decisions made, there may be a need to consider the effects of contact on PC and to determine what further contact should occur. This order will be reviewed by the Tribunal in 12 months.
I certify that this and the preceding [18] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS S GILLETT, MEMBER
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