In the Matter Of Clara (No.2) (Guardianship and Management of Property)
[2022] ACAT 78
•30 September 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF CLARA (No.2) (Guardianship and Management of Property) [2022] ACAT 78
GT 114/2018
Catchwords: GUARDIANSHIP AND MANAGEMENT OF PROPERTY – review of appointment of Public Trustee and Guardian as guardian and manager – application for appointment by protected person’s daughter – previous application for appointment dismissed – considerations of suitability where conflicting interests, incompatibility, unwillingness to acknowledge changing views and wishes of protected person and unresolved family conflict – Public Trustee and Guardian seeking to confirm and continue existing appointments – application dismissed – orders confirmed and re-issued
Legislation cited: Guardianship and Management of Property Act 1991 ss 4, 9, 10
Cases cited:In the matter of Clara [2019] ACAT 46
Tribunal:Senior Member K Katavic
Member A Delahunt
Date of Orders: 30 September 2022
Date of Reasons for Decision: 30 September 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) GT 114/2018
IN THE MATTER OF CLARA
Tribunal:Senior Member K Katavic
Member A Delahunt
DATE:30 September 2022
ORDER
The Tribunal orders that:
The application is dismissed.
The orders made on 7 June 2022 have been reviewed, confirmed, and re-issued as follows:
Appointment of Guardian
The Public Trustee and Guardian is appointed guardian for [Clara] (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 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;
(d)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.
The Tribunal will review this appointment on its own initiative on [Date 2025].
The guardian must notify the Tribunal of any changes to the address of, or of any other significant change in circumstances of, itself or of the protected person.
Appointment of Manager
The Public Trustee and Guardian is appointed as manager to manage all of the property including finances of [Clara] (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 his/her finances herself.
The Tribunal will review this appointment on its own initiative on [Date 2025].
The manager must notify the Tribunal of any changes to the address of, or of any other significant change in the circumstances of, itself or of the protected person.
………………………………..
Senior Member K Katavic
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
On 15 May 2019, the tribunal made orders[1] in relation to Clara[2] (the 2019 Orders). Those orders and the reasons for them were made following a hearing regarding the revocation of enduring powers of attorney previously made by Clara, her decision-making capacity and the need to appoint a guardian and financial manager (the 2019 Decision). For convenience, we adopt the same pseudonyms used in the 2019 Decision.
[1] In the matter of Clara (Guardianship) [2019] ACAT 46
[2] ‘Clara’ bears no resemblance to the person’s real name. This pseudonym was previously used by the tribunal in the 2019 Decision and has been adopted again to protect her privacy.
Relevantly for the purposes of the present matter, the tribunal appointed the Public Trustee and Guardian (the PTG) as Clara’s guardian and financial manager with the power to decide where and with whom she is to live, to give consent for any medical procedures or treatment, and make other personal decisions needed to ensure Clara’s health and welfare needs are met and to protect her from unreasonable risks to her health and welfare. It also included the power to do things necessary to give effect to any decisions made according to those specific powers.
The tribunal dismissed separate applications made by John[3], Clara’s son and Susan[4], Clara’s daughter to be appointed as guardian and financial manager.
[3] ‘John’ bears no resemblance to the person’s real name. This pseudonym was previously used by the tribunal in the 2019 Decision and has been adopted again to protect his privacy and his mother’s privacy.
[4] ‘Susan’ bears no resemblance to the person’s real name. This pseudonym was previously used by the tribunal in the 2019 Decision and has been adopted again to protect her privacy and her mother’s privacy.
The tribunal also made an order, consistent with its usual practice, to review the appointments on its own initiative before 14 May 2022 or on application.[5]
[5] Refer section 19 of the Guardianship and Management of Property Act 1991
On 14 April 2022, the tribunal notified interested parties of the impending review and invited those interested parties to provide their views as to whether the orders should continue in the same form, be varied or revoked.
On 30 April 2022, Susan sent a submission to the tribunal dated 27 March 2022, setting out a number of complaints regarding the conduct of the PTG and decisions that had been made, primarily a decision to place Clara in a residential aged care facility. Following receipt of this submission, the tribunal sought Susan’s views regarding the circulation of the submission to other interested parties in order for the tribunal to take it into account as part of the review and/or alternatively make an application for review of the appointments. Susan agreed to the submission being circulated and on 25 May 2022 also made an application for review of the appointments. Her submission dated 27 March 2022 provides the reasons for her application.
On 4 May 2022, the PTG provided two reports regarding its conduct during the period of its appointment, one in relation to the guardianship review and one in relation to its financial management. The PTG advised in all of the circumstances the existing orders should continue.
On 7 June 2022, the tribunal conducted a review on the papers and decided to continue the existing orders, but list Susan’s application and the review for further hearing. These are the matters before this Tribunal for consideration.
On 14 July 2022, the PTG provided a further submission in response to Susan’s application. The PTG maintained the existing orders should continue.
On 18 July 2022, John provided a submission to the tribunal stating that he wished for the current arrangements to continue. He advised the tribunal by telephone that he did not wish to participate in the hearing.
Susan and her daughter, Michelle[6], attended the hearing and both made oral submissions. The following representatives for the PTG attended the hearing, Ms Helen Connolly, Ms Bronwyn Smith and Ms Danae Lacey. At the hearing, Ms Connolly, Ms Smith and Ms Lacey outlined the contents of the respective reports and submission before the Tribunal.
[6] ‘Michelle’ bears no resemblance to the person’s real name. This pseudonym has been adopted to protect her privacy and her grandmother’s privacy.
The Tribunal has considered the oral submissions made at the hearing and also the written submissions made by Susan, John and the PTG. The Tribunal has not had regard to John’s submission beyond the statement of support for a continuation of the PTG’s appointment.
Background
Clara was born in 1930 and is now 92 years old.
The tribunal previously found Clara suffered from dementia and lacked decision-making capacity, thus necessitating the need for a guardian and financial manager.[7] The PTG was appointed to both roles.
[7] In the matter of Clara [2019] ACAT 46 at [144]-[146] and [261]
Against a background of conflict between John and Susan, the Tribunal was not persuaded that either was suitable for appointment.[8] In Susan’s case, the Tribunal regarded her as unsuitable for appointment due to Clara’s stated wish to no longer live with her and to live with John. Their conflict, the Tribunal found, was an insurmountable problem.[9] Further, the Tribunal held that John was not suitable as a consequence of his acquiescence in Clara spending and exhausting her money.[10] We note however that John does not seek to be appointed in either role.
[8] In the matter of Clara [2019] ACAT 46 at [260]
[9] In the matter of Clara [2019] ACAT 46 at [259]
[10] In the matter of Clara [2019] ACAT 46 at [255]
There have been a number of events since the 2019 Orders and decisions made by the PTG. Since October 2020, Clara has been residing in a residential aged care facility. It is this decision which Susan takes issue with. Prior to this Clara had been living with and being cared for by John.
Clara’s health and living arrangements
Clara had been living with Susan in NSW just outside the ACT until approximately July 2018 when she returned to Canberra to reside with John.[11]
[11] PTG Submissions 14 July 2022
Following the 2019 Orders, in late May 2019, Susan advised the PTG that she wished for Clara to return to live with her. The PTG reports ascertaining Clara’s views on returning to live with Susan to which Clara expressed a wish to continue living with John.[12]
[12] PTG Submissions 14 July 2022
On or about 23 March 2020, Clara was admitted to hospital following a fall at home.[13] During this admission, an occupational therapy assessment was conducted which the PTG reports concluded Clara required 24/7 care and supervision with a recommendation for residential aged care.[14] Clara was instead discharged home into John’s care on the basis she would continue to have 24/7 supervision.[15]
[13] PTG Submissions 14 July 2022
[14] PTG Submissions 14 July 2022
[15] PTG Submissions 14 July 2022
In October 2020, Clara was again admitted to hospital with a medical condition. The hospital again recommended discharge into residential aged care. Clara was discharged into a residential aged care facility in late October 2020. She has remained there since.
The PTG reports Clara’s health has continued to decline and further decisions are likely required to be made regarding her health, welfare and care needs.
Decisions made by the PTG
The PTG explained the decision to discharge Clara home into John’s care following the March 2020 admission was made due to the emerging COVID-19 pandemic and its impact on aged care facilities. The decision to return to John’s home was supported by Dr S, Clara’s treating Geriatrician.[16]
[16] PTG Submissions 14 July 2022
The PTG further submitted that the decision to place Clara in residential aged care following her second admission to hospital in October 2020 was made based on medical advice and after ascertaining Clara’s views and wishes. At the time, the PTG reports Susan was dissatisfied with Clara being placed in residential aged care and that she believed she should be living with her.[17] The PTG informed Susan that Clara had expressed on a number of occasions that she did not want to live with her, and also indicated she would “go into a nursing home when the time comes.”[18] The PTG also reported that Clara’s condition has deteriorated to the extent it would not be possible for her to reside anywhere else but residential aged care.[19]
[17] PTG Submissions 4 May 2022
[18] PTG Submissions 4 May 2022
[19] PTG Submissions 4 May 2022
Ms Smith reported having a conversation with Clara on 4 May 2022 which Ms Smith described in her report[20] as pleasant with Clara maintaining her sense of humour. Ms Smith said the conversation was somewhat incoherent and Clara’s preferences regarding the current guardianship orders could not be ascertained however when asked if she liked her current accommodation, Clara said “Oh yes, we don’t argue or anything.”[21]
Financial management
[20] PTG Submissions 4 May 2022
[21] PTG Submissions 4 May 2022
In a Financial Management Report dated 4 May 2022, the PTG reported on financial decisions that had been made since being appointed in 2019 and Clara’s financial position. The report outlined Clara’s sources of income and a substantial PTG common fund balance. The PTG was not aware of any debts.
The PTG reported facilitating the sale of an investment property in Malua Bay with the proceeds funding a Refundable Accommodation Deposit. The PTG also reconciled payments made from Clara’s bank account for legal services and other transactions which were not for her benefit. It established a repayment schedule in August 2021 with John for these amounts for which he is up to date.
As a consequence of her diminished capacity, the PTG submitted the current orders should remain in place.
Clara’s wishes
Susan submitted that her main concern is that Clara is in a nursing home against her wishes. She told the Tribunal that she has a recording of Clara from 2017 expressly and clearly stating her view that she did not wish to be placed in a nursing home. While invited to do so, the Tribunal did not listen to the recording. Susan further submitted she was trying to maintain a promise to her mother that she made years ago.
Susan declined to accept that it was possible Clara’s wishes had changed since 2017 or that her care needs had changed necessitating her placement in residential aged care. Susan adamantly maintained that Clara’s wish was to not be placed in residential aged care and that wish had not changed. She claims the PTG has acted against her mother’s express wishes and not looked after her wellbeing.
Susan has repeatedly conveyed to the PTG a willingness to care for Clara and have her reside with her. She did so in May 2019, July 2020 and in October 2020. The PTG reports that on each occasion Clara was asked about returning to live with Susan and consistently expressed a view against that course.
In May 2019, the PTG reports it met with Clara privately and asked her about her accommodation preferences to which she responded she “would rather move into a nursing home [should her care needs exceed her ability to stay living with John] rather than return to [Susan’s] place” and “I had no freedom there.”[22]
[22] PTG submissions 14 July 2022
In July 2020, the PTG reports that upon Susan again asking if Clara could reside with her, Susan was advised that Clara had consistently expressed a wish to remain living with John and had stated she did not wish to reside with Susan.[23]
[23] PTG Submissions 14 July 2022
In October 2020, following her second admission to hospital, the PTG reports it contacted Clara to ascertain her preferences in relation to a bed vacancy in a residential aged care facility. Clara reportedly said “Yes, it doesn’t matter. If you think it’s a good thing to do, well do it. The family can come and see me there.” The PTG reports Clara also stated she does not want to be a bother and not be a burden to anyone.
The PTG also reports that Clara was asked about returning to live with Susan, as this had previously been requested by Susan, to which Clara responded, “Oh no, I couldn’t do it. No.”[24]
[24] PTG Submissions 14 July 2022
Susan submitted that because she believes Clara’s express wish is to not reside in aged care, she should reside with her. She does not propose Clara reside with John. She submitted that Clara’s views could not be properly ascertained.
Susan’s application
Susan made a number of complaints about the PTG’s conduct since the 2019 Orders. These are mainly around contact with Clara, communication and information sharing. Her main concern is that Clara should not have been placed in residential aged care and that she should live with her. We understand this to be the driving force behind seeking appointment as Clara’s guardian and that if appointed she would facilitate Clara’s relocation from residential aged care.
We do not understand Susan to be seeking appointment as Clara’s financial manager.
The Tribunal’s review
Section 9 of the Guardianship and Management of Property Act 1991 (GMP Act) governs who may be appointed as guardian and manager. Sub-sections 9(4) and (5) relevantly provide that the PTG must not be appointed if an individual who is otherwise suitable has consented to being appointed. The PTG is often referred to as the guardian or financial manager of last resort. It is not often the PTG advocates for maintaining its appointment in both roles as it did in this case.
Section 10 of the GMP Act provides considerations affecting appointment. Sub-section 10(3) enables the appointment of someone only if the Tribunal is satisfied the person will follow the decision-making principles and is otherwise suitable for appointment. The decision-making principles are set out in section 4 of the GMP Act.
Sub-section 10(4) sets out the matters the Tribunal must take into account when considering a person’s suitability. They are:
(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.
In terms of each of these considerations, the Tribunal finds as follows:
(a)Clara’s views and wishes as to the appointment of Susan or the PTG have not been fully ascertained. To the extent her views and wishes can be discerned, the Tribunal is satisfied on the information available that Clara has maintained that she does not wish to reside with Susan and has expressed a view that she is happy with her placement in residential aged care. We do not discount that Clara may have previously held a view against such a placement, however, circumstances and needs change. We cannot, when all of the current information is taken into account, conclude that this previously held view (based on a 2017 recording) is consistent with Clara’s present views and wishes. There is sufficient information to the contrary.
(b)The conflict between Susan and John cited in the 2019 Decision remains. The appointment of the PTG in 2019 was driven by this conflict. We consider that appointing Susan in circumstances where that conflict is unresolved would destabilise Clara being able to maintain relationships with her family.
(c)Having regard to the unresolved family conflict and our findings below at (g), we do not regard Susan is compatible with Clara in a legal sense in terms of being appointed guardian.
(d)Susan resides outside the ACT, but this would not prohibit her appointment.
(e)Whether Susan would be available and accessible to Clara is a concern. She informed the Tribunal that she attempts to call Clara two to three times a week with varying success and does not visit her regularly. She has advocated to have Clara visit her in her home in NSW and reported being frustrated by the PTG requesting details of such a visit. She was unhappy about arrangements being made to see Clara in a café. We understand the COVID-19 travel restrictions over the last two years has impacted Susan’s ability to visit Clara.
(f)Susan told the Tribunal she has many years of experience working in the aged care setting and with people suffering dementia and together with Michelle who is a registered nurse, could competently care for Clara. The Tribunal recognises Susan’s experience in this regard.
(g)In balancing Susan’s well-entrenched view that Clara should not have been placed in residential aged care and that she should live with her against the PTG’s submission that Clara’s placement was made based on medical advice and Clara’s views and wishes, we can only conclude Susan’s interests would detrimentally conflict with Clara’s interests. At 92 years of age, any relocation of Clara from a place where she has been settled for two years would be significant. There is no evidence before the Tribunal to suggest Clara’s health, welfare and care needs are not presently being met. We accept the PTG’s submission that Clara has not voiced any objection to her placement in residential aged care at the time it was being considered in October 2020 or since.
We have also considered whether Susan would follow the decision-making principles and for reasons expressed above in relation to Clara’s views and wishes, family conflict and Susan’s own interests we cannot be comfortably satisfied she would.
It is for the above reasons that, on balance, we are not satisfied Susan is suitable for appointment as Clara’s guardian or financial manager and in the absence of any other suitable individual, the appointment of the PTG to both roles should continue.
Orders
Susan’s application is dismissed.
The orders made on 7 June 2022 have been reviewed, confirmed and re-issued as follows:
Appointment of Guardian
The Public Trustee and Guardian is appointed guardian for [Clara] (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 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;
(d)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.
The Tribunal will review this appointment on its own initiative on [Date 2025].
The guardian must notify the Tribunal of any changes to the address of, or of any other significant change in circumstances of, itself or of the protected person.
Appointment of Manager
The Public Trustee and Guardian is appointed as manager to manage all of the property including finances of [Clara] (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 his/her finances herself.
The Tribunal will review this appointment on its own initiative on [Date 2025].
The manager must notify the Tribunal of any changes to the address of, or of any other significant change in the circumstances of, itself or of the protected person.
………………………………..
Senior Member K Katavic
For and on behalf of the Tribunal
| Date(s) of hearing: | 20 July 2022 |
| Applicant: | In person |
| Interested Parties: | H Connolly, PTG B Smith, PTG D Lacey, PTG Michelle*, granddaughter |
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