In the Matter of AP (Guardianship and Management of Property)
[2019] ACAT 125
•24 December 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF AP (Guardianship and Management of Property) [2019] ACAT 125
GT 97/2018
Catchwords: GUARDIANSHIP AND MANAGEMENT OF PROPERTY– application for a family member to replace PTG as guardian and manager – need to preserve family relationships – family relationship found to be so minimal as to not be affected by appointment – applicant suitable person
Legislation cited: Guardianship and Management of Property Act 1991 ss 7, 8, 9, 10
Tribunal: Presidential Member MT Daniel
Senior Member M Matheson
Date of Orders: 22 October 2019
Date of Reasons for Decision: 24 December 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) GT 97/2018
IN THE MATTER OF AP
TRIBUNAL: Presidential Member MT Daniel
Senior Member M Matheson
DATE: 22 October 2019
ORDER
The Tribunal orders that:
1. These Orders were reviewed and varied as shown:
2. The appointment of Public Trustee and Guardian as guardian and manager is revoked.
Appointment of Guardian
3. [Ms I] is appointed guardian for [AP] (the protected person) with the following powers:
(a) to decide where, and with whom the protected person is to live;
(b) to give any consent required for a medical procedure or other treatment (other than a prescribed medical procedure);
(c) to give any consent required for medical treatment involving treatment, care or support under the Mental Health Act 2015 (other than a prescribed medical procedure);
(d) to bring or continue legal proceedings for or in the name of the protected person;
(e) to make other personal decisions needed to ensure the protected person’s health and welfare needs are met and to protect her from unreasonable risks to her health and welfare;
(f) to do things necessary to give effect to decisions about the matters set out above, including (but not limited to):
(i) giving or receiving information; or
(ii) giving consent to investigations and assessments; or
(iii) participating in negotiations; or
(iv) signing documents.
4. The Tribunal will review this appointment on its own initiative before 22 October 2022.
5. The guardian must notify the Tribunal of any changes to the address of, or of any other significant change in circumstances of, herself or of the protected person.
Appointment of Manager
6. [Ms I] is appointed as manager to manage all of the property including finances of AP (the protected person) with the following powers:
(i) all the powers the protected person would have been entitled to exercise if she were legally competent to exercise powers in relation to her property including her finances herself.
7. Any dealings with the real property of the protected person must have prior endorsement of the Public Trustee and Guardian.
8. The Tribunal notes that, before endorsing the sale of any real property, the Public Trustee and Guardian will require evidence that:
(i) the sale price is the true market value of the property; and
(ii) the sale is in the best interests of the protected person.
9. The Tribunal will review this appointment on its own initiative before 22 October 2022.
10. The manager must notify the Tribunal of any changes to the address of, or of any other significant change in the circumstances of, herself or of the protected person.
The Tribunal directs:
The guardian to take immediate steps to address the protected person’s living arrangements; including removing the protected person temporarily to stay with the guardian in Queensland or using residential respite care; until the house is cleaned; an Occupational Therapy assessment conducted; the living arrangements are considered safe and carers put in place or other arrangements for her residence made.
……………Signed……………..
Presidential Member MT Daniel
For and on behalf of the Tribunal
REASONS FOR DECISION
1. On 22 October 2019 the Tribunal made orders substituting Ms I, the daughter of AP, as guardian and financial manager of AP in place of the Public Trustee and Guardian (PTG). These are the reasons for that decision.
Background to the proceedings
2. It is helpful to set out the history of the proceedings from its beginning in June 2018, to provide context to the current decision.
3. AP was born in 1937. She lives in Canberra, in a house that she owns outright located in an inner suburb. The house is three bedrooms, it has a renovated garage which is habitable and there is also a second two-bedroom house on the property. AP has four adult children, Ms I (who lives in Queensland), Mr D (who lives in the two-bedroom house), Mr F (who lives in the garage) and Mr R (who lives in NSW). Also occupying a bedroom in AP’s three-bedroom home is Mr D’s adult son Mr A.
4. On 15 June 2018, Ms I filed an application for herself to be appointed as guardian and financial manager for AP (the first application).
5. For the first application Ms I provided copies of an enduring power of attorney (EPOA) in favour of her brother Mr D, dated 26 April 2018, and an earlier EPOA in favour of Ms I executed 16 August 2017. Ms I alleged that Mr D was misusing his powers under the EPOA and that the protected person was not receiving the care she needed. Ms I identified concerns around AP’s hygiene, medical and dental care, lack of social interaction, unclean and disorderly home environment, and cancellation of approved carers. Ms I filed photographs, a witness statement and submissions from herself, and a witness statement from Mr R The photographs and statements evidenced squalid and unsafe living conditions in AP’s home, and suggested a lack of attention to her day to day care needs or her health needs by Mr D or others caring for AP, and depletion of AP’s bank account by Mr D including while AP was visiting Ms I interstate.
6. Ms I also provided a copy of a medical report dated 27 June 2018 from AP’s general practitioner Dr Kath, in which Dr Kath stated:
(a) AP had been a patient since December 2015;
(b) AP had multiple health issues including diabetes and dementia;
(c) AP was not brought for appointments at the frequency requested;
(d) a geriatrician referral had been recommended by Dr Kath which had not been done;
(e) Dr Kath was concerned that AP was receiving suboptimal care by her family in Canberra.
7. On 3 August 2018 Mr D filed an interim orders application seeking orders that AP undergo an assessment by a geriatrician and then, depending upon the outcome of that assessment, the ACAT either:
(a) declare that AP did not have impaired decision-making ability; or
(b) if satisfied AP lacked decision making ability, either
(i) appoint Mr D as her guardian and financial manager; or
(ii) appoint the PTG as guardian and manager and arrange an aged care assessment and provision of care by external services at government expense.
8. With the application, Mr D provided a statement in which he said:
(a) as a self-employed builder he would go to work at around 9am and return home at 4pm, and was able to return home and check on AP two to four times each workday;
(b) he withdraws roughly $400 per fortnight from AP’s account for AP’s needs, and he and Mr A often purchased items for AP using their own funds;
(c) neither he, nor Mr A nor Mr F paid any rent to AP for living on her property, however Mr F paid the rates for the property, and Mr D paid the utilities for the two-bedroom house.
(d) Mr A, Mr D and Mr D’s partner Ms N (who stayed about five nights a week with Mr D) provided care for AP;
(e) the photographs provided by Ms I misrepresented the true and usual state of the home;
(f) that Ms I had previously taken AP to Queensland for extended periods of time;
(g) that he considered Ms I on those occasions misused AP’s money for her own purposes;
(h) that AP had told him on many occasions that she wanted to live and die in her own home; and
(i) that the relationship between himself and Ms I was not good.
9. The PTG provided a report dated 3 August 2018 in which it was stated that a representative of the PTG had met with AP and a Croatian interpreter. AP was reported to have said:
(a) she understood the role of a guardian but “I’m not going anywhere. This is my house. I want to stay here;”
(b) she thought she needed a guardian and “[Mr D] helps me with everything;
(c) She wanted Mr D as a guardian because “[Ms I] doesn’t live here;”
(d) She has two sons who pay her bills; and
(e) She intended to attend the hearing.
10. The first application came before the tribunal on 7 August 2018. The tribunal adjourned the matter to hearing on another date and made directions for the assessment of AP by a geriatrician. Although the terms of a referral letter were settled between the Tribunal and Mr D’s solicitors, it does not seem that any appointment with a geriatrician was made by Mr D.
11. Ultimately an assessment was arranged by Ms I, and conducted by Dr Paramadhathil over two appointments in November 2018, with an interpreter. Dr Paramadhathil provided a report on 28 November 2018, advising that:
(a) AP has a significant decline in cognitive function;
(b) she had difficulty in making simple calculations, was unaware of her assets, her money in the bank or how much pension she received;
(c) medical health appeared reasonable;
(d) she did not understand the concept of a power of attorney and stated she had not appointed any attorney in the past;
(e) AP indicated her sons who live adjacent to her care for her and stated that her current care arrangements were satisfactory to her.
12. The tribunal ultimately heard the first application on 5 February 2019. The Tribunal revoked the previous EPOA to Mr D. The tribunal appointed the PTG as both guardian and manager of the protected person and ordered that the appointment be reviewed before 5 February 2020.
13. On 12 June 2019 Ms I lodged an application for review or direction (the second application), this was heard by the tribunal on 30 July 2019. Ms I in the second application stated that in the four months since the appointment of the PTG as guardian and financial manager, AP’s personal care and financial situation remained the same. Specifically, Ms I stated that no aged care assessment had been undertaken, no home care services put in place, and AP’s income continued to be accessed and controlled by Mr D. Ms I queried how AP could spend $400 per week on food and cigarettes, when she largely eats tuna and yoghurt. Ms I set out the efforts she had undertaken to try to ensure that the outstanding issues were addressed. Ms I also provided bank statements for Mr D’s partner Ms N, which appeared to show that in 2018 AP’s pension had been paid directly to Ms N’s bank account.
14. In advance of the 30 July 2019 hearing, the PTG provided a report from the Senior Guardian dated 23 July 2019 which explained delays in obtaining an aged care assessment which were only rectified in July 2019, and advised that arrangements for meals on wheels were now underway. The Senior Guardian also advised of difficulties in ensuring that AP’s medical needs were met, reporting that the GP wanted to undertake more regular monitoring of diabetes but AP was not brought in for consultations. The Senior Guardian noted that conflict in the family remained. Finally, the Senior Guardian noted Mr D has said that he was opposed to AP having an aged care assessment, on the basis that “Mum wants to be independent” and “she doesn’t need that now.”
15. The PTG also provided a report on financial management dated 25 July which advised that:
(a) AP’s property is unencumbered;
(b) AP’s sole income is her pension of $926 per fortnight;
(c) agreement had now been reached between the PTG and family living at the property that they would pay utilities, general rates and water and sewerage rates;
(d) the property had been uninsured but the PTG had now arranged insurance;
(e) the property had no smoke detectors, in discussion with Mr D he undertook to the PTG to install these;
(f) AP’s will and certificate of title for her property had been retrieved by Mr D from AP’s lawyers on 21 November 2018, under authority of his EPOA; and
(g) conflict between the family remained.
16. Mr D provided a submission to the Tribunal by email on 28 July 2019, in which he denied that there had been any dilatoriness on the part of the PTG in performing its functions. He said that AP and he were happy for the PTG to continue to manage AP’s affairs.
17. When the matter came before the tribunal on 30 July 2019, Ms I was not present. Mr D and AP participated by telephone from another location, with a telephone interpreter. There was no appearance by or on behalf of the PTG. The tribunal considered the second application, and the information provided by Ms I, the PTG and Mr D. This showed that after a delayed start, the PTG was now performing its role and decisions were being taken to ensure AP’s interests. As a consequence, the tribunal confirmed the orders of 5 February 2019, declined to make any directions to the PTG about exercise of its powers, and maintained the review date of 5 February 2020.
18. At the hearing on 30 July 2019 the tribunal advised Mr D that the information provided to the tribunal supported the inference that AP was being financially exploited by him and other members residing on her property, and that the level of physical and medical care provided to AP raised serious concerns for the Tribunal. The tribunal was conscious that quite apart from Mr D’s apparently unregulated access to AP’s pension, the free accommodation provided by AP to family members, including Mr D and his son, provided a significant financial incentive for maintaining the status quo. The tribunal explained that if Mr D wanted the current arrangements to continue, he would need to be able to demonstrate to the tribunal at the review of the orders that it should not draw the suggested inference, and that on the contrary AP’s living, health and welfare arrangements were appropriate to her needs and means.
19. Ms I contacted the tribunal on 31 July 2019 to advise that the notice of the hearing of 30 July 2019 had been received by her in her post only that day. The matter was relisted for a mention on 3 September 2019, when Ms I was expected to be in Canberra visiting AP.
20. On 3 September 2019, Ms I attended the tribunal but Mr D, the PTG and AP did not. The tribunal explained to Ms I the hearing that had been conducted in her absence on 30 July 2019, and that the tribunal had declined to issue directions to the PTG at that time as matters now appeared to be in hand. Ms I indicated that nonetheless she considered that the arrangement with the PTG as guardian and manager was an inefficient process, when she was available and willing to undertake that role, and also to physically take AP to appointments. The tribunal told Ms I that if she wished to be appointed as a guardian and financial manager for AP she would need to lodge an application for appointment, which includes specific documentation required by the Act, and such application would be listed for hearing on another day.
21. Ms I also advised the tribunal that to her knowledge, there had been no real change to AP’s financial arrangements because the PTG had provided Mr D with a card to access AP’s new account, and AP continued to have little food and no spending money, while the account was regularly depleted. These arrangements for Mr D to access AP’s account were confirmed by a further report from the PTG dated 29 August 2019.
22. To address these concerns, the Tribunal directed the PTG to provide a report to the tribunal, by 3 October, detailing the arrangements in place to provide AP with funds, and specifying how AP’s funds had been applied during the period of financial management.
23. On 30 September 2019 Ms I lodged an application for appointment of herself as guardian and financial manager (the third application). That application was heard by the Tribunal on 22 October 2019 and is the subject of this decision.
Application
24. In the third application Ms I sought to be appointed as guardian and manager for AP, on the basis that AP had impaired decision making ability and PTG “have not been able to put in place mums needs in seven months that she has been under their care” .
Evidence
25. At the hearing on 22 October 2019, the Tribunal had before it all of the documents filed for the first and second applications, and the following additional material:
(a) Reports on financial management from the PTG dated 2 October and 16 October.
(b) A report of AP’s guardianship provided by the PTG dated 16 October 2019.
(c) An aged care assessment in relation to AP dated 21 October 2019.
26. The Tribunal also heard oral evidence and submissions on 22 October 2019 from Ms I, Mr D, Mr D’s partner Ms N, and Ms I’s partner Mr I. The key aspects of that evidence and submissions are summarised below.
27. Ms I attended the hearing in person, and her husband Mr I attended by telephone. Mr D, his partner Ms N and AP did not attend the tribunal in person but participated by telephone. The PTG did not attend the hearing.
28. Ms I advised the Tribunal that:
(a) Mr D and Ms N are not adequately caring for AP. AP is in bed when they leave for work, and is left to fend for herself;
(b) Mr D does not currently have a licence and so cannot check on AP during the day;
(c) while in bed, AP often smokes and drops her cigarettes on the floor and her bedding, which is a fire hazard;
(d) in addition, her smoking is unrestricted, and she can smoke up to 40-60 cigarettes a day;
(e) AP has continence issues, and Mr D has given her a bucket next to her bed to urinate in at night;
(f) despite often soiling her bedding, AP’s sheets are only washed on the weekend, by Ms N;
(g) AP often misses medication, takes it late, or takes multiple doses because it is left out for her in the morning but she has no concept of time;
(h) the heating in AP’s room is inadequate;
(i) AP is not receiving “proper food”, she eats mainly tuna and yoghurt;
(j) AP is being manipulated by her son Mr D; and
(k) the appointment of the PTG has not made a real difference to AP’s care situation or living circumstances.
29. Ms I’s position was supported by Mr I, who also said that he believed the situation was “elderly abuse and this has to stop.”
30. Mr D stated that:
(a) he takes care of AP on a day-to-day basis, and has been for a long time;
(b) he takes his mother wherever she wants to go, and does whatever she wants him to do;
(c) he has not taken AP to her GP in relation to continence issues, but will do so “if things progress”;
(d) his mother wants him to look after her, and would say so if asked; and
(e) he believes if it were not the PTG appointed, then he should be AP’s financial manager and guardian, and that it would be in her best interests for him to be so appointed.
31. Ms N supported Mr D’s position, and further advised:
(a) she did not think Ms I is a suitable guardian because she lives on the Gold Coast;
(b) Ms N and Mr D look after AP “24-7;”
(c) the protected person has a bucket beside her bed for urination at night as she is often unable to get to the toilet quick enough, and this has been the case for about 10 months; and
(d) she is happy for the PTG to continue in their role, as they have been helpful so far in ensuring AP’s needs are met.
32. The three reports provided by the PTG gave further information in relation to both their management and guardianship appointments.
33. In summary, the guardianship report dated 16 October 2019 advised that during the period of guardianship, through communication with Ms I, arrangements had been put in place for both meals on wheels and social support funded by My Aged Care. A re-assessment of services was also underway. It described a conversation in September 2019 with AP, in which AP said she did not want home assistance and also did not want Mr A living in her house. The report concluded that the appointment of the PTG has been “fraught with challenges” and noted various limitations to the ability for significant decisions to be made ‘in-situ’ under the current orders. The report advised that the PTG had no objection to Ms I’s application.
34. The financial management report dated 2 October 2019, provided in compliance with the orders of 3 September 2019, stated:
(a) At the time of appointment in February 2019 AP’s pension was being directed to an account not in her name. This was rectified and an account in AP’s name established. In the interim, funds were paid directly to Mr D.
(b) Once a bank account was established in AP’s name, a debit card was obtained and in accordance with the usual procedure the debit card was given to the protected person/family member to enable withdrawal of funds.
(c) The PTG acknowledged AP is incapable of independently attending an ATM and withdrawing funds and is entirely reliant upon family to assist her to access her funds.
(d) After review of AP’s budget in April, July and August the amount made available to AP for withdrawal has been reduced;
(e) On 4 and 6 September 2019 Ms I and Mr D respectively dealt with the bank in relation to AP’s account and each cancelled the current debit card.
(f) The PTG had concerns that the conflict between Mr D and Ms I, and the actions they had taken as a result of that conflict, could leave AP with no access to funds.
(g) The report noted concerns for AP’s welfare while this conflict is ongoing.
35. The second financial management report dated 16 October 2019 advised:
(a) On 2 October 2019 the PTG arranged repairs to the front door and sliding door of the property, and servicing of the air conditioning.
(b) Quotes for installation of a heater in the lounge room were being obtained.
(c) AP now has over $2000 savings in the PTG common fund.
(d) PTG met with Mr D and Ms N on 18 September, and with Ms I on 27 September, to explain the role of guardian and financial manager, the decisions it had made to date, and its concerns that their actions in relation to the debit card use were detrimental to AP’s interests.
(e) The PTG remained concerned by the conflict between Mr D and Ms I but would support the appointment of Ms I, providing the tribunal determined she was suitable and that her “appointment would not hinder the preservation of existing relationships”.
36. The Tribunal referred to the aged care assessment plan, dated 22 October 2019. This was conducted with Ms I present and an interpreter, at AP’s home on 9 October 2019. The plan detailed AP’s medical condition and noted that AP “has significant cognitive decline and reduced mobility which is impacting on her ability to attend to her own Personal and Instrumental Activities of Daily Living.” It also described AP’s living and social circumstances, describing it as a “Very Complex family situation” and noted discrepancies in the approach Ms I and Mr D have to AP’s care. The plan concluded that AP’s current situation is “unsustainable” and inappropriate for her current needs. The report noted:
(a) AP requires prompting and assistance with showering;
(b) AP needs prompting and supervision with medication management;
(c) AP has urinary incontinence and has been given a small bucket to void in at night;
(d) AP smokes in her bedroom and there are multiple burn marks on the carpet.
37. The report concluded by recommending access to High Priority Home Care Package Level 4, High Level residential respite care and Permanent residential care.
Consideration
38. The provisions that govern whether a guardian or financial manager should be appointed are set out in similar terms sections 7(1) and 8(1) of the Guardianship and Management of Property Act 1991 (GMP Act). Essentially, there are three matters that must be considered if a guardian or financial manager is to be appointed for a person.
39. First, does the person have ‘impaired decision-making ability’ in relation to a relevant matter? Secondly, is there likely to be a need for a decision in relation to that matter? Thirdly, if a guardian or manager is not appointed will the persons needs not be met, or their interests significantly adversely affected?
40. In relation to AP, the tribunal in January 2019 was satisfied these three criteria were met. The evidence before this tribunal leads to the same conclusion. AP undisputedly has impaired decision making ability, and the evidence satisfies the tribunal that currently there are a number of decisions that need to be made, in relation to her health and welfare, and financial matters such as the financial consequences of health and welfare decisions and how they are to be funded. We are satisfied that if there is no person to make the requisite decisions, AP’s needs will not be met and her interests will be significantly adversely affected.
41. Indeed, there was no submission at the hearing on 22 October 2019 that AP does not require a guardian and financial manager to be appointed. The area of dispute at the hearing was whether the guardian and financial manager should be the PTG, or Ms I.
42. In relation to who can be appointed as a guardian or financial manager, sections 9(4) and (5) of the GMP Act provide that the PTG must not be appointed if an individual “who is otherwise suitable has consented to be appointed.”
43. Is Ms I ‘otherwise suitable’ and consenting to appointment?
44. In determining whether there is an individual who is otherwise suitable, and who consents to appointment, the tribunal must consider the matters set out in section 10 of the GMP Act. We address these in turn.
Section 10(1) A person must not be appointed as a guardian or manager unless the person consents in writing to the appointment
45. Ms I provided written consent to appointment as a guardian and as financial manager with her application dated 30 September 2019.
Section 10(2) A person (except the public trustee and guardian or a trustee company) must not be appointed as a guardian or manager unless the person is an adult and has informed the ACAT on oath whether the person—
(a) has been convicted or found guilty of an offence involving violence, fraud or dishonesty; or
(b) has been, either in the ACT or elsewhere, refused appointment as a guardian or manager, or removed from office as a guardian or manager; or
(c) is bankrupt or personally insolvent (and, if so, has given particulars to the ACAT).
Note Bankrupt or personally insolvent—see the Legislation Act, dictionary, pt 1.
46. Ms I provided the necessary statutory declaration with her application dated 30 September 2019.
Section 10(3) Someone (other than the public trustee and guardian) may be appointed as a guardian or manager only if the ACAT is satisfied that the person will follow the decision-making principles and is otherwise suitable for appointment.
47. The tribunal was troubled by the actions of Ms I in cancelling AP’s debit card, which at least temporarily led to AP not being able to access funds. This action suggested that Ms I would be motivated to make decisions for AP in furtherance of her dispute with Mr D, rather than by reference to the decision-making principles.
48. However, we are satisfied that the debit card incident is not indicative of Ms I’s ability, if appointed guardian and manager, to make decisions for AP in accordance with the decision-making principles set out in section 4(2) of the Act. Those principles are as follows:
(a) the protected person’s wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person’s interests;
(b) if giving effect to the protected person’s wishes is likely to significantly adversely affect the person’s interests—the decision-maker must give effect to the protected person’s wishes as far as possible without significantly adversely affecting the protected person’s interests;
(c) if the protected person’s wishes cannot be given effect to at all—the interests of the protected person must be promoted;
(d) the protected person’s life (including the person’s lifestyle) must be interfered with to the smallest extent necessary;
(e) the protected person must be encouraged to look after himself or herself as far as possible;
(f) the protected person must be encouraged to live in the general community, and take part in community activities, as far as possible.
49. Overall, the tribunal was satisfied that Ms I will make decisions in accordance with the decision-making principles. We reached this conclusion by reference to the content of Ms I’s multiple written submissions and oral evidence in which she expresses her concerns for her mother, and her desire to see AP remain living in her home with external carers and supports to ensure her needs are suitably met. It would be the easiest course for Ms I, being located interstate, to simply fall back on the proposal that AP move into residential care. However, the entire thrust of her communications in these proceedings, and in the preceding months, has been to recognise AP’s desire to remain in her own home, to put in place services which implement AP’s intention and thus interfere with AP’s life as little as possible, while recognising the importance of AP being enabled to have a greater level of social interaction and engagement in the community than currently.
50. In the context of Ms I’s suitability, we also considered section 4(3) of the Act, which provides that before making a decision the guardian or financial manager must consult with each carer of the protected person. Given the conflict between Mr D and Ms I, would consultation occur?
51. Ms I submitted that if appointed as guardian and manager she would propose to initially remove AP to Queensland while the house in Canberra was properly cleaned, any necessary renovations or alterations assessed and undertaken, and support and care services put in place. As set out below, the Tribunal considered that this was an appropriate decision and ultimately directed this to occur. Thus, in the immediate short term there would be no need for consultation with Mr D as he would not be providing care for AP over those weeks or months.
52. In this case, the tribunal was satisfied that Mr D was unlikely to continue his role as sole carer of AP in the longer term, because it requires a time commitment and the activities that he cannot undertake. However, if in the short term he was to continue to provide care for AP we were satisfied that any consultation by Ms I could be undertaken by text or email message.
53. In determining the suitability of Ms I, the Tribunal must also consider the matters set out in section 10(4) of the Act. Subsection 10(4) provides as follows:
(4) For subsection (3), the matters the ACAT must take into account include—
(a) the views and wishes of the person (the protected person) for whom a guardian or manager is to be appointed; and
(b) the desirability of preserving existing relationships with family and any other carers; and
(c) whether the proposed guardian or manager is compatible with the protected person; and
(d) whether the proposed guardian or manager lives in the ACT; and
(e) whether the proposed guardian or manager will be available and accessible to the protected person; and
(f) the nature of the functions to be exercised under the order and whether the proposed guardian or manager is competent to exercise them; and
(g) whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests.
54. In this case, AP has previously expressed the view that Mr D should continue to look after her and be her guardian. She has said that Ms I “couldn’t do it’ as she resides in Queensland. The tribunal is concerned that in expressing her view AP confused the role of the guardian/financial manager with the role of a carer.
55. Ms I also raised concerns that her brother had been manipulating AP, and that the views and wishes expressed by the protected person were a consequence of misinformation Mr D provided.
56. The Tribunal was concerned that the views and wishes expressed by AP are affected by misinformation provided to her, whether intentionally or through misunderstanding, and her inability to understand the question being asked, and therefore can be given little weight. As noted during the hearing, the Tribunal was unable to speak with AP directly, with an interpreter, about her wishes during the course of this matter.
57. Nonetheless, we take into account the views previously communicated by AP.
58. Another factor to consider in assessing suitability is the desirability of preserving existing relationships with family and carers. The tribunal was concerned that appointing any of the family members to make decisions for AP would destroy the relationships between AP’s four children, and particularly between Ms I and Mr D. However, our observation of that family relationship over the last 12 months is that it is effectively non-existent. Given that the PTG is reliant on family members to provide information on which to base its decisions, that relationship is unlikely to be improved by the PTG remaining as the decision-maker.
59. We consider that Ms I is compatible with AP. As AP’s daughter she has an established relationship which has not been suggested to be in any way difficult or strained, and she has cared for AP for extended periods of time in the past at her home in Queensland.
60. We have considered the impact of Ms I being located in Queensland, rather than residing in the ACT. During the hearing, the Tribunal felt it was necessary to clarify the distinction between a guardian and a carer to minimise any confusion or concern arising from a conflation of the two. An individual may have both a guardian and a carer, or they may have a guardian that fulfils the role of a carer also – the two roles are not mutually exclusive. In this case, Mr D had been acting in the role of carer and the PTG recently as guardian. Mr D expressed concerns that, if Ms I were to be appointed guardian, the protected person would not receive adequate care as Ms I lives in Queensland. As was explained to Mr D, the appointment of Ms I as guardian would not necessitate her acting as AP’s carer.
61. We do not consider that in the world of modern communication Ms I’s residing in Queensland poses a difficulty in terms of making decisions for AP, any greater than that experienced by the PTG as a guardian and financial manager. Indeed, notwithstanding the apparent distance, it is likely that Ms I due to the family relationship and common language will be more readily available and accessible to AP than an officer of the PTG.
62. We have also considered the nature of the decisions which will need to be made: it seems to the tribunal that a number of these decisions are dependent upon each other and upon factors as yet unknown.
63. Unsurprisingly given her age, AP needs decisions to be made about her health, including visits to the optometrist, dentist and her GP, there may also be a need to visit an audiologist. These consultations may lead to consideration of matters such as whether to vary AP’s medication, for example so that there is no necessity for lunchtime medication and thus lunchtime supervision.
64. Because of AP’s strong desire to remain living in her home, it needs assessment by a qualified person, and if recommended, works to be undertaken so that it will be suitable for her to remain living there for the longer term. The tribunal understands that the bathroom, at least, has been recently renovated. However, given AP’s mobility, there will need to be consideration of installation of ramps. We note repair work was undertaken recently and the air conditioner serviced, but the issue of installation of a heating system remains. The tribunal is concerned that the photographs and other information provided suggest that AP’s home environment is impoverished. Consideration should be given to enriching AP’s living environment through the provision of comfortable internal living spaces, and a garden or other inviting external area.
65. The most practically difficult decisions for the immediate future are to put in place carer arrangements and support services to enable AP to remain living in her home long term. At a minimum AP must receive sufficient assistance with meals and activities of daily living (such as showering), and regular cleaning and linen changes. We note AP has expressed a view that she doesn’t need in home assistance, and she is concerned at the cost of meals on wheels, and these wishes will need to be considered and given effect to in accordance with the decision-making principles. It may be possible for carers to provide transport and outings for AP, however given her language limitations and memory deficits it may be too late to for these opportunities to be successfully implemented.
66. Of course, any renovations or adjustments to the house will need to be paid for, as will services. and the Tribunal was concerned to note that the PTG earlier advised Ms I that suggested works could not be undertaken as AP had no savings to pay for them. This raises squarely the question of whether AP should continue to provide free accommodation to her two sons and grandson. The guardian will need to consider AP’s wishes in this respect, and AP may express the desire to provide free accommodation to her sons, and go without a new heater, or ramps, or meals on wheels. In accordance with the decision-making principles, the guardian will need to give effect to AP’s wishes, unless those wishes are likely to significantly adversely affect AP’s interests.
67. The Tribunal notes AP has advised she does not want Mr A living in the house. A decision may also need to be made in that respect.
68. It seems to the tribunal that an important factor in suitability of a guardian or financial manager is the ability to identify that a decision point has been reached. When the PTG is appointed as guardian and manager, the PTG is still reliant upon carers or the protected person advising that the need for a decision has arisen, and time may be taken in the PTG receiving the information that may already have been provided to the protected person or carer.
69. Ms I’s ability to identify when decisions for AP’s personal care, medical or living arrangements needed to be made, as demonstrated by Ms I contacting the tribunal and PTG to request decisions be made, is a matter that goes to her suitability for appointment. Ms I’s actions in facilitating AP’s attendances as required upon her GP, the hospital, and the aged care assessment team, all suggest that Ms I will be able to promptly make decisions that promote AP’s desire to age in her own home for as long as possible.
70. Finally the tribunal considered whether the interests and duties of Ms I as proposed guardian and manager are likely to conflict with AP’s interests to AP’s detriment. The Tribunal did not consider that such a conflict was likely to arise.
71. Although the factors listed in section 10(4) which we have addressed above must be taken into account, they are not determinative as to whether a particular person is suitable for appointment as a guardian or manager. The Tribunal must consider the entirety of the Act, and the relevant facts of the particular case, in reaching an overall conclusion as to suitability. Having done so, we were satisfied that Ms I was a suitable person to be appointed as guardian and financial manager for AP.
Decision
72. For the reasons set out above, the tribunal was satisfied that AP is a person in relation to whom a guardian and financial manager may be appointed.
73. The PTG cannot be appointed if there is an individual who is suitable, who consents to appointment.
74. Ms I is available and willing to perform the functions of guardian and manager, she has provided the necessary written consent and statutory declaration and the tribunal considered that she was suitable for appointment.
75. Accordingly, the Tribunal made orders on 22 October 2019 appointing Ms I as guardian and manager for AP.
76. The Tribunal was troubled by a number of incidents occurring under the current living arrangements that put AP’s safety – and potentially life – at risk. This included the delay in obtaining medical treatment for her infected foot, the risk of starting a fire due to her smoking in her room while there were no smoke alarms, and the ongoing risk of misadministration of her medications. Consequently the Tribunal considered that Ms I’s proposal of AP having a holiday in Queensland while works were undertaken and services put in place to be a sensible decision.
77. The evidence before the Tribunal was that AP had holidayed with Ms I in Queensland for extended periods in the relatively recent past. Accordingly, the Tribunal directed that the decision be made that AP was to have a holiday in Queensland, or even to trial residential respite care in Canberra, while these arrangements for her housing and services are underway.
78. The Tribunal noted that there are a number of difficult decisions that will need to be made for AP in coming months. Most will be difficult only in practical terms, the process of obtaining all of the relevant information and discussing the options with AP may be protracted and complicated. However, for some matters the appropriate decision for AP under the decision-making principles may not be clear. The PTG is an excellent source of support for decision-makers in these situations. It is also open to the guardian or financial manager, or any interested person, to request that the tribunal make a direction as to how the guardian or financial manager is to exercise their powers in relation to a certain matter. We recommend to Ms I, and Mr D and other family members, that they apply to the tribunal for direction should there be any such matters in the future.
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Presidential Member MT Daniel
For and on behalf of the Tribunal
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