In the Matter of Jane
[2019] ACAT 18
•21 September 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF JANE (Guardianship) [2019] ACAT 18
GT 134/2018
Catchwords: GUARDIANSHIP – point in time assessment of decision-making ability – principles to be observed by decision-makers – adequate and proper consideration of all the evidence – unreasonable risk – lack of insight into personal circumstances – supported decision-making – change of circumstances from time to time – material change of circumstances – role of Public Trustee and Guardian – ongoing responsibilities of guardian and manager – protected person’s right to an opportunity to be heard – attendance of protected person at hearing
Legislation cited: Guardianship and Management of Property Act 1991 ss 4, 5A, 7, 8, 9, 19
Cases cited:A v Guardianship and Management of Property Tribunal [1999] ACTSC 77
Allesch v Maunz [2000] HCA 40
Holt v Protective Commissioner (1993) 31 NSWLR 227
HRI (Guardianship) [2015] VCAT 1140
Hunter and New England Area Health Service v A [2009] NSWSC 761
In the Matter of ER [2015] ACAT 73
In the Matter of QR [2018] ACAT 118
McDonald v Guardianship and Administration Board [1993] 1 VR 521
Moore v Guardianship & Administration Board [1990] VR 902
Qumsieh v Guardianship and Administration Board [1998] VSCA 45
XYZ v State Trustees Ltd [2006] VSC 444XYZ (Guardianship) [2007] VCAT 1196
List of
Texts/Papers cited: Australian Law Reform Commission, Elder Abuse – A National Legal Response, ALRC Report No 131 (2017)
Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008)
Tribunal:Presidential Member G McCarthy
Date of Orders: 21 September 2018
Date of Reasons for Decision: 31 January 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) GT 134/2018
IN THE MATTER OF JANE
TRIBUNAL:Presidential Member G McCarthy
DATE:21 September 2018
ORDER
The Tribunal orders that:
Appointment of Guardian
The Public Trustee and Guardian is appointed guardian for [name suppressed] (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 before 20 September 2021.
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 [name suppressed] (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.
The Tribunal will review this appointment on its own initiative before 20 September 2021.
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.
………………Signed………………
Presidential Member G McCarthy
REASONS FOR DECISION
This matter brought into full view the difficult questions that arise when a person has led a full and independent life and wishes to continue doing so in their later years, but lacks insight into their inability to do so as a consequence of dementia.
Background
Jane[1] was born in 1928, and is now 90 years of age. She lives in rented accommodation in an inner north suburb of Canberra. From what I could tell, she has lived there for many years. She lives alone. Her husband predeceased her and she has no children. She has, however, friends and neighbours who care for her very much.
[1] ‘Jane’ bears no resemblance to the protected person’s real name. The Tribunal has adopted a pseudonym to preserve her privacy
Jane is of a slight build (46kg) but physically healthy. At the hearing, she spoke repeatedly about walking to the shops, and the satisfaction she gains from cooking for herself and taking care of her house.
At hearing, Jane also spoke about the care she has given to others over the years, particularly providing meals to the elderly through Meals on Wheels. She spoke disparagingly about children who ‘put’ their elderly parents into ‘nursing homes’ because, she said, the children ‘could not be bothered’ providing them with support to enable them to continue living in their homes as they wished. She described quite graphically her dread of being placed in a nursing home where, she said, residents do no more than ‘stare out a window and read’.
Jane has lived a full and independent life, but over recent months her ability to do so has become fraught.
On 12 September 2018, Jane’s general practitioner filed an application for the Public Trustee and Guardian to be appointed as Jane’s guardian to make decisions for her regarding her health and welfare, and as Jane’s manager to make decisions regarding her property and finances. In support, by letter dated 23 August 2018, he wrote:
I have become [Jane’s] regular GP since the beginning of this year. Particularly in the light of several recent home visits, I have become increasingly concerned about her welfare and ability (inability) to manage herself and her affairs. Accordingly I write to support the attached application for the appointment of a public guardian.
She lives alone and has no remaining family in Australia. Although she is often visited by her friend [Julia][2] who helps her with things such as the taking of medications, she cannot take on this guardianship role. [Jane] recently had a RADAR[3] review and they have expressed significant concerns with her ability to continue to live safely in her own unit; they suggested applying for guardian appointment in the near future.
[Jane] displays no insight into her condition of what I strongly suspect is Alzheimer’s Dementia. She is now quite frail due to its recent deterioration. I understand that she has already had one significant kitchen fire in her unit and am concerned about a possible further incident such as this that may not end so well.
[2] ‘Julia’ bears no resemblance to the person’s real name. The Tribunal has adopted a pseudonym to preserve her privacy
[3] The initials ‘RADAR’ refer to the Rapid Assessment of the Deteriorating Aged at Risk conducted by ACT Health
I expect that Jane’s general practitioner was reluctant to make the application, but in my view it was a responsible action.
In support of the application, Jane’s general practitioner provided a letter dated 15 August 2018 he had received from a geriatric registrar at The Canberra Hospital who commented upon Jane’s cognitive abilities. The letter included the following:
I conducted a home visit through RADAR on 15/8/18 along with RADAR nurse [Sue][4] in the presence of [Jane’s] friend from church, [Julia].
…
[Jane] is a 91 year old widow lady who lives alone … She was last seen by [Dr Jones][5] on 5/1/18 through RADAR and was thought to have mild to moderate Alzheimer’s dementia with psychotic symptoms. Guardianship application was recommended if any crisis occurred. Since then she [has] had [an] ACAT[6] assessment and was approved for level 4 packages though she has declined all services.
Socially, [Jane] migrated from Scotland many years ago (she could not elaborate more on this history). She previously worked in book making and horse racing. She does not have children or relatives in Australia. There is no enduring power of attorney (EPOA) or advanced care plan. Her neighbour and [Julia] visit her daily to check on her and to monitor her medication compliance. [Julia] also assists with bills and medication pick‑up from the pharmacy.
Despite [Jane] denying any issue with her health and cognition, [Julia] is concerned about her declining cognition and future deterioration. [Jane] seems to lack insight into those concerns and is resistant to any assistance. She is unable to remember to take medication from [her] Webster-pak and has missed many doses in the past. During our visit she [was] unable to provide details on her medical conditions, medication list, or their indications. In addition, she is reluctant to answer many safety questions and diverted to different topics multiple times. For example, in case of a fire she will call a fire brigade but does not know the number to dial.
Financially, she receives [a] pension from Australia and a small amount from [the] UK though she is unable to provide more detail on the amount or how she manages her money and bank account. In addition, she is unable to understand the concept of EPOA or when it comes [in] to effect. Therefore, guardianship application will need to be considered for future decision making.
Her pantry is well stocked with food, particularly packaged porridges and canned soups. Her fridge has combination of good food and expired vegetables. There are also rotten potato[es] in her freezer. She has always been a slim person and denies any weight loss. Her weight is 46 kg (with shoes on). Bedroom is kept tidy but bathroom and kitchen are stained. I question her personal hygiene as she appears unkempt and her clothes unwashed. She mobilizes well without any walking aids around the unit.
MMSE[7] score is 20/28 with deficits in orientation, recall and language. She could not read or draw due to poor vision. This is unchanged from Jan ’18.
[4] ‘Sue’ bears no resemblance to the person’s real name. The Tribunal has adopted a pseudonym to preserve her privacy
[5] ‘Dr Jones’ bears no resemblance to the person’s real name. The Tribunal has adopted a pseudonym to preserve the privacy of the protected person
[6] The acronym ‘ACAT’ refers here to the Aged Care Assessment Team
[7] The acronym MMSE refers to a Mini-Mental State Examination
In support of the application, Jane’s general practitioner also provided a later report dated 11 September 2018 from a senior staff specialist in geriatric medicine at The Canberra Hospital who stated:
[Jane] is a 90-year-old lady originally from Scotland. She has no family in Australia and currently lives on her own with her cat. [Jane] was diagnosed with a dementia several months ago and has had symptoms of cognitive impairment for several years … There has been significant functional decline over the past few months to the extent that she is unable to look after herself. I performed a Capacity Assessment on [Jane] on 11 September 2018. Her MMSE score was 15/30 with deficits in multiple cognitive areas including memory, visuospatial tasks, orientation and language and concentration skills. She did not have evidence of a delirium.
With regards to her finances, [Jane] knew that she got the pension but did not know how frequently she received it or how often she received it. She was unable to tell me how she withdrew money from the bank. She was also unable to tell me what to do if she lost her bank card. At this stage, [Jane] is unable to make informed decisions about her finances.
[Jane] states that aside from hypertension, she has no other medical illnesses. In actual fact, she has a history of hypertension, hypercholesterolaemia, osteoporosis, dementia, macular degeneration (she is legally blind) and hypothyroidism, type 2 diabetes mellitus and vitamin D deficiency. She also states that she is on no medications, however she is meant to be on Irbesartan, Thyroxine, Cholecalciferol. At this stage, [Jane] is unable to make informed decisions about her medical care needs.
With regards to lifestyle decisions, [Jane] feels that she can manage independently at home without any services. [Jane’s] home is quite malodorous. Her shelves are stacked full of the same foods, ie. porridge and long-life milk. She forgets that she has them at home and she keeps buying the same things. She feels that other people are stocking her shelves and gets paranoid about this. Her fridge has to be repaired as there have been rats that have bitten through the wiring. There was extensive old food in the fridge as well. Her toilet needs a good clean as it is quite unhygienic at present. [Jane] was unable to tell me the number for emergency services. She was unable to tell me what to do if she had a fall. If there is a fire in the house, she stated that she would actually try and put it out even though it was a big fire. [Jane] has become lost walking to the shops a couple of times and strangers have had to bring her home. [Jane], at present, requires assistance with managing the cleaning, shopping, transportation and managing her medications. At this stage, she lacks the capacity to make informed decisions about her lifestyle choices.
…
As a result of [Jane’s] dementia, she lacks the capacity to make informed decisions about her medical care needs, finances and lifestyle decisions. None of her friends are able to be appointed as the Guardian and, as such, a Public Guardian and a Public Trustee will need to be appointed for [Jane]. Her safety cannot be guaranteed at home and, as such, she will require admission into an aged care facility where 24 hour supervised care can be provided for her.
The hearing
I conducted the hearing of the application at The Canberra Hospital. Jane attended with her good friend, Julia, who had brought her to the hospital. A social worker from the RADAR team and a registered nurse, both of whom have had a role in providing (or trying to provide) care for Jane, also attended the hearing.
At hearing, Julia and the health care workers explained that they had earlier given copies of the application and the doctors’ reports to Jane, and had read from them to her because of her blindness. Julia explained that Jane has peripheral vision but very limited central vision. The health care workers told me that they had spoken to Jane about the application and its purpose several times prior to the hearing. I am quite confident that these prior explanations were given, however Jane did not know what the hearing was about. She was upset that Julia had brought her to the hearing when I stated that its purpose was to decide whether someone should make decisions on her behalf.
Jane was anxious and upset about what might occur. She protested that she wished to continue living in her own home. She said that she could see no reason why she should not be able to do so because she paid the rent. In response to my re‑stating Julia’s concerns and the concerns of many others that she was not able to care for herself, and was unwilling to let others assist her in ways that would enable her to be safe and well, she described the concerns as ‘ridiculous’.
She protested that just because she was old did not mean she should have to leave her home. When it was stated that her age was not an issue, and that the concern was about her inability to care for herself, regardless of her age, the conversation returned to strident insistence that she was perfectly able to care for herself as she had always done.
Three times during the hearing Jane walked out of the hearing room stating that she was ‘going home’, although each time she returned with Julia or one of the health workers.
My giving specifics about why people held concerns for her caused Jane to become more upset. She was particularly upset that anyone would say that her home was not clean or tidy, where a clean and tidy home has obviously been a high priority for Jane throughout her life.
I discussed with Jane the care she had provided to the elderly through Meals on Wheels. She enjoyed the conversation, and was obviously (and appropriately) proud of the help she had given to others over many years. When I suggested that perhaps she had reached a ‘time in life’ where she could receive some help and support, she described the suggestion as ‘ridiculous’ because she can look after herself. Support providers at the hearing confirmed that they have tried in many ways to persuade Jane to accept help in her home, without success.
I spoke to Jane about the importance of her receiving support with her shopping, cooking and cleaning if she wished to remain living in her home, in the same way that she had provided support for the elderly in the past, but she rejected the comparison.
I explained, or at least tried to explain, to Jane that her friends, neighbours, doctor and health support workers were all concerned about her health and safety if she were to continue living alone in her home and that she needed to accept practical support if she wished to continue doing so. Jane would have none of it, insisting she was perfectly able to continue living an independent life.
The hospital support workers informed me that Jane’s general practitioner visits her at her home each Wednesday to attend to her medical needs, but Jane could not tell me his name. She also appeared to be unaware that her doctor visited each Wednesday.
Jane often walks to the nearby shops, and plainly enjoys doing so, but ‘near miss’ events have occurred. They are likely to re-occur with the risk of less fortunate outcomes. I give some examples.
Julia reported that Jane (who I understood has no assets of consequence other than her pension) gave a $50 note to a busker before going into a shop. Upon leaving the shop she tried to give him another $50 note. The busker, who I was told has also come to know and like Jane over time, declined the further offer and explained to Jane that she had given him a $50 note a short time earlier. I was told the busker escorted Jane to her bank, consequent upon her being unsure where it was.
Julia and the hospital social workers reported that on at least three occasions Jane walked well beyond the shops and become lost, including an occasion when she was close to the Federal Highway. Only by the goodwill and assistance of passers‑by was she returned home safely. When asked about these events at the hearing, Jane dismissed their significance and stated that she enjoyed a walk.
I received a report of $1,600 in cash found in Jane’s home. On inquiry, Jane said she knew nothing about it.
A significant fire occurred recently in Jane’s kitchen, but Jane could not recall it.
I was told that Jane had a fall in June 2018 and was unable to walk until August. Jane could not recall it.
At the hearing, Jane could not tell me who she would ring or what numbers she would ring if another fire occurred or she had another fall. She said she had a telephone, but could not tell me the number she would ring if she needed assistance, or how she would find the number.
After reviewing the evidence and listening to Jane’s viewpoint, I concluded that a guardian and manager needed to be appointed. I was satisfied that the Public Trustee and Guardian (PTG) should be appointed where there was nobody else who had consented to be appointed or was likely to do so.[8]
[8] The Guardianship and Management of Property Act 1991, section 9(4) and (5), preclude the appointment of the Public Trustee and Guardian as a person's guardian or manager, respectively, where an individual who is otherwise suitable has consented to be appointed
The PTG is sometimes described as the appointee ‘of last resort’. There is nothing disparaging about the phrase. It is intended to reflect a “sensible hierarchy of choices”, and that a person suitable for appointment who has consented to appointment should be preferred, particularly “where there is no risk of conflict of interest and duty, and where a relationship of love or affection is established.”[9]
[9] Holt v Protective Commissioner (1993) 31 NSWLR 227 [238]-[239], noted with approval in In the Matter of QR [2018] ACAT 118 [164]
In this case, no one had consented, meaning that the PTG’s services became necessary to fill the need. For this reason, the PTG provides an extremely valuable service to the community. The PTG and his staff have a keen appreciation of the rights of persons the subject of a guardianship order, and the safeguards that are built into the Guardianship and Management of Property Act 1991 (Guardianship Act). But for the services of the PTG, the circumstances of many people would be dire.
My reasons for appointing the PTG in this case follow.
Supported decision-making
There is a growing and commendable recognition in the community that impaired decision-making ability[10] is not a sufficient basis to appoint a guardian or manager for another person. With support, many people with impaired decision‑making ability are able to live relatively independent lives and to make decisions for themselves.
[10] Impaired decision-making ability is described in section 5 of the Guardianship Act. A person has impaired decision-making ability if the person’s decision-making ability is impaired because of a physical, mental, psychological or intellectual condition or state, whether or not the condition or state is a diagnosable illness
This proposition is built into the Guardianship Act. Section 7(1)(a), (b) and (c) of the Guardianship Act set out three criteria, all of which must be satisfied in order to appoint a guardian. Impaired decision-making ability is only the first.
Sections 7(1) and (2) of the Guardianship Act state:
7 Appointment and powers of guardians
(1) This section applies if the ACAT is satisfied that—
(a)someone has impaired decision-making ability in relation to a matter relating to the person’s health or welfare; and
(b)while the person has the impaired decision-making ability—
(i)there is, or is likely to be, a need for a decision in relation to the matter; or
(ii)the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and
(c)if a guardian is not appointed—
(i)the person’s needs will not be met; or
(ii)the person’s interests will be significantly adversely affected.
(2) The ACAT may, by order, appoint a guardian for the person, with the powers that the ACAT is satisfied are necessary or desirable to make decisions for the person in accordance with the decision-making principles.
In many cases, with support, a person will be able to make a decision for themselves “in relation to the matter” and is not likely to “do something” that involves or is likely to involve unreasonable risk to their health, welfare or property. Likewise, with support, it might well be that their needs will be met or their interests will not be significantly adversely affected despite the absence of a guardian.
In XYZ v State Trustees Ltd and Anor, Cavanough J of the Supreme Court of Victoria commented on materially similar legislation in the Guardianship and Administration Act 1986 (Vic), and the need for each criteria to be fulfilled:
Section 46(1)(a) of the Act imposes three separate and cumulative requirements. The question whether the person is “in need of an administrator” does not arise unless and until VCAT is duly satisfied, first, that she or he is a “person with a disability” (as defined) and, second, that she or he is “unable to make reasonable judgments etc by reason of the disability”. Generally speaking, the question of “need” will be answered primarily by reference to the availability or otherwise of alternative arrangements outside administration (such as family support) to compensate for or deal with the person’s identified “inability”.[11]
[11] XYZ v State Trustees Ltd [2006] VSC 444 [44]
The same three criteria apply in relation to appointment of a manager under section 8 of the Guardianship Act regarding “the person’s financial matters or a matter affecting the person’s property”. Sections 8(1) and (2) state:
8 Appointment and powers of managers
(1) This section applies if the ACAT is satisfied that—
(a)someone has impaired decision-making ability in relation to the person’s financial matters or a matter affecting the person’s property; and
(b)while the person has the impaired decision-making ability—
(i)there is, or is likely to be, a need for a decision in relation to the matter; or
(ii)the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and
(c)if a manager is not appointed—
(i)the person’s needs will not be met; or
(ii)the person’s interests will be significantly adversely affected.
(2) The ACAT may, by order, appoint a manager to manage all, or a stated part of, the person’s property, with the powers that the ACAT is satisfied are necessary or desirable to allow the manager to make decisions in relation to the property, in accordance with the decision-making principles.
The Courts have repeatedly stated the importance of addressing the statutory requirements for appointing a guardian or manager as closely as possible, having regard to the deprivation of freedom of action of the subject person that the order entails. Jane’s circumstances demonstrate the importance of doing so.
In McDonald v Guardianship and Administration Board the Supreme Court of Victoria, Appeal Division said:
It is fair to say that the Board Act provides a charter for administered officiousness. Guardianship and administration orders are calculated to achieve, at the instance of any person at all, a far-reaching deprivation of the freedom of action not only of represented persons but of near relatives of such persons. This is not to deny that there may be cases in which the jurisdiction of the board may be justifiably invoked. The Board Act, however, prescribes very important safeguards against the making of inappropriate guardianship and administration orders.
…
The tribunal has itself recognised that the appointment of a plenary guardian under the Board Act, since it officially and formally removes the whole of a person’s legal rights over person and circumstances, is to be made only as a last resort.[12]
[12] McDonald v Guardianship and Administration Board [1993] 1 VR 521 [531]-[532]
Each of the three criteria raised significant issues in this case. Although I have focused on the criteria for appointment of a guardian, the principles apply equally to the appointment of a manager.
Section 7(1)(a): impaired decision-making ability
Impaired decision-making ability is not an ‘all or nothing’ concept. It must be assessed “in relation to the matter” in question.
In A v Guardianship and Management of Property Tribunal (A), Miles CJ of the ACT Supreme Court said:
The essential nature of the concept of legal incompetence is that it is not absolute but relative. It is summed up in the single sentence at the commencement of Christian Witting's paper in 1996, 3 Journal of Law and Medicine, 377:
“Employment of the term ‘incompetent’ naturally elicits the inquiry, ‘incompetent in relation to what?’”
A comprehensive collection of materials is gathered by R Creyke in her report, Who can decide? Legal decision-making for others (1995) Aged and Community Care Service Development and Evaluation Reports, report No 19 at 2. From these materials the writer distils a principle that incompetence to manage is a variable notion which requires soundness of mind with capability of understanding the general nature of what the person is doing. The degree of understanding varies with the complexity of the transaction and must be that level of understanding which can be attained following explanation: see Gibbons v Wright (1954) 91 CLR 423 at 437-438.[13]
[13] A v Guardianship and Management of Property Tribunal [1999] ACTSC 77 [59]-[60]
In Hunter and New England Area Health Service v A (by his Tutor T) (Hunter), McDougall J of the NSW Supreme Court made a similar observation. He said:
There is a presumption of capacity, whereby an adult ‘is presumed to have the capacity to consent to or refuse medical treatment unless and until that presumption is rebutted’: see Butler-Sloss LJ in Re MB (An Adult: Medical Treatment) [1997] 2 FCR 541 (at [553]
…
In this context, it is necessary to bear in mind that there is no sharp dichotomy between capacity on the one hand and want of capacity on the other. There is a scale, running from capacity at one end through reduced capacity to lack of capacity at the other. In assessing whether a person has capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision … The capacity required to make a contract to buy a cup of coffee may be present where the capacity to give away one's fortune is not.
…
As Butler-Sloss LJ said in [Re MB at 553-554], in deciding whether a person has capacity to make a particular decision, the ultimate question is whether that person suffers from some impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. That will occur if the person:
(1)is unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision; or
(2)is unable to use and weigh the information as part of the process of making the decision.[14]
[14] Hunter and New England Area Health Service v A (by his Tutor T) [2009] NSWSC 761 [23]‑[25]
In In the Matter of ER [2015] ACAT 73 (ER), the tribunal considered and rejected a submission that a person either has capacity to consent to medical treatment or they do not. The tribunal said, and I agree:
As stated by O’Neill and Peisah, it is generally accepted that capacity is not a unitary concept but rather refers to specific decisions, tasks or domains. Capacity is task or domain specific and is peculiar to the particular decision that is to be made. This was acknowledged by the High Court in Gibbons v Wright as follows:
[T]he mental capacity required by law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of the transaction when it is explained.
Thus, capacity cannot be extrapolated from one capacity task to another. (footnotes omitted)[15]
[15] In the Matter of ER [2015] ACAT 73 [30]-[31]
In XYZ (Guardianship), Deputy President Billings of the Victorian Civil and Administrative Tribunal (VCAT) said:
In the Report of the Minister’s Committee on Rights and Protective Legislation for Intellectually Handicapped Persons dated December 1982, which report is cited by Cavanough J in his decision, there is this discussion:
“A person might have a proven ability to manage a small sum of money such as $500 or $1,000 and yet be at risk of exploitation if he came into a larger sum or if he inherited valuable property or a majority shareholding in a company. In addition, it may be in the interests of the person to encourage him to continue to exercise control over a small but growing portion of his estate. A tailor-made order could reflect these needs by ensuring that the ... person retains some limited residual control over his property while at the same time protecting him from financial exploitation.” (paragraph 21 on page 86)[16]
[16] XYZ (Guardianship) [2007] VCAT 1196 [57]
Whether a person has impaired decision-making ability is not a question to be deferred to the medical profession. Sections 7 and 8 state that it is a circumstance about which the Tribunal must be “satisfied”. The Tribunal must be satisfied, or not, on the whole of the evidence before it.
In XYZ v State Trustees, Cavanough J considered a ground of appeal that VCAT had failed to give adequate or proper consideration to all of the evidence, and had placed undue reliance on a neuropsychological report from an examining doctor. The Court said:
Before VCAT, Mr Sharp submitted repeatedly that a neuropsychological assessment could only be a part (and a small part at that) of a full and proper assessment by VCAT of real life capacity or ability. The Senior Member apparently disagreed. Within minutes of the plaintiff beginning to give evidence, she stopped the examination in chief to say that she was not sure that it was relevant to hear the plaintiff’s life story. Mr Sharp responded that the evidence was relevant to show that the plaintiff was perfectly lucid and perfectly capable of looking after his own affairs. The Senior Member replied:
“Mr Sharp, he appears pretty lucid to me, but I’m not a neuropsychologist and I’m not testing [XYZ].”
…
VCAT was obliged to “consider for itself, against the objections raised by [the plaintiff], whether on the material before the tribunal the decision [in question] was the ‘correct or preferable one’.” Just as, under the review regime then in place, the AAT had not been entitled to regard the decision of the Guardianship and Administration Board under review as “presumptively correct” - , VCAT was not, in my opinion, entitled to regard any neuropsychological report as presumptively correct, whereas I think it did so in the case of Dr Vowels’ report.
…
I am not aware of any general understanding that neuropsychological assessments are so accurate as instruments for measuring the capacity of a person to handle property and financial affairs that any other kind of evidence tending to the contrary can be discounted, much less ignored.
…
I agree with Mr Sharp that VCAT effectively abdicated its role as decision-maker in favour of Dr Vowels. This went beyond legitimate use by VCAT of expert evidence and involved an inappropriate delegation of the “ultimate issue” to the expert. (footnotes omitted)[17]
[17] XYZ v State Trustees Ltd [2006] VSC 444 [48]-[55]
In XYZ (Guardianship), on remitter from the decision of Cavanough J, Deputy President Billings commented on the need for caution regarding assessments of capacity, especially the widespread use of MMSE assessments. He said:
In the present case there are conflicting views between neuropsychologists but also opposing conclusions by one of the neuropsychologists, Dr Vowels, on the one hand and a number of medical practitioners and a psychologist on the other. In many of the medical reports it does not appear whether any and what tests formed the basis for the opinions expressed. In a significant number, however, they refer to the results of a MMSE. It is relevant, therefore to observe this:
“The MMSE was not developed to assess capacity, although it has often been used to document ‘general cognitive’ abilities as part of capacity assessment in clinical and other contexts ... The use of the MMSE for capacity assessments is the subject of ongoing debate”. Mental Capacity Powers of attorney and Advance Health Directives, at pp. 116 ff.
The general need for caution in capacity assessments is expressed by Darzins et al. in this way:
“If capacity assessments place too much weight on cognitive function tests, like the [MMSE] or the cognitive capacity test, poor performance on these tests may be interpreted as evidence of incapacity. These tests are primarily language based and influenced by education, culture and language. If tests of cognition are used to determine capacity, some people who are capable, but who score poorly on these tests because of ignorance, lack of education or language difficulties, will be inappropriately labelled as incapable. Conversely, incapable people who have received more education and have well developed language skills, may erroneously be judged capable by these tests” — Who can decide? The six step capacity assessment process. Darzins et al., cited above, at p. 8.
This supports the proposition that, if there is expert opinion that a person lacks capacity but there is also lay evidence that indicates the person has capacity, the Tribunal may decline to find that the person is incapable. On the other hand - depending on the circumstances - if there is expert opinion that a person has capacity but there is also lay evidence that indicates the person lacks capacity, the Tribunal may elect to obtain further and better medical or other expert evidence rather than reach an immediate conclusion. Any paradox here can be explained, I think, by considering the presumption that a person has capacity but, at the same time, the protective nature of the jurisdiction.[18]
[18] XYZ (Guardianship) [2007] VCAT 1196 [68]-[70]
In this case, I had evidence from many sources that Jane’s ability to make decisions for herself regarding her accommodation, her health care and her finances is impaired. In particular, I had the professional evidence of her general practitioner and two geriatricians. Jane’s friend, Julia, supported their viewpoint. So did the social workers.
Jane protested that these viewpoints were ‘ridiculous’, and that she was quite capable of continuing to make decisions regarding these issues for herself. She protested that the statements from the different doctors about her were incorrect. As mentioned above, I spoke with Jane about her viewpoint. My conversation with her about her ability to look after herself, to manage her many medical needs and to manage her money persuaded me that the consensus opinions from the various other persons should be preferred. I was satisfied on the evidence that Jane does have impaired decision-making ability in relation to her accommodation, her medical treatment, her finances in her property and particularly her lease over her home.
I make similar observations about my decision to appoint the PTG as Jane’s manager. On the evidence, Jane’s only material assets are her pension and her residential lease that gives her secure accommodation. On the evidence before me, I was satisfied that Jane has impaired decision-making ability in relation to both. She knew she received a pension, but knew very little about the detail and knew nothing about the $1,600 in cash at her house.
Regarding her lease, meaning her home, Jane places a high priority on cleanliness and tidiness, yet (on the evidence) she had no insight into the state of her home and no insight into the need to accept help in order to maintain her home as she wished it to be and which, I expect, her lease requires.
Section 7(1)(b)(i) and (ii): need for a decision or unreasonable risk
Until its removal with effect from 17 September 2002,[19] the Guardianship Act, section 3, provided for “principles to be observed” when a person exercises a function or power under the Act. Section 3(2)(a) stated the first of those principles as follows:
the person’s views and wishes, so far as they can be ascertained, should receive paramount consideration
[19] Statute Law Amendment Act 2002
In A, Miles CJ considered section 3(2)(a) on appeal from a decision of the (then) Guardianship and Management of Property Tribunal appointing the Public Trustee as manager of the protected person’s property and financial affairs. The protected person wished to manage his own money, and protested that he was competent to do so. In 1994, he inherited $40,000 from his mother which was spent over the following few years on food, cigarettes and gambling. In 1998 he was awarded $65,000 consequent upon a motor vehicle accident in 1993. The Court recorded the substance of the dispute as follows:
The Public Trustee, the Community Advocate and the Tribunal have all continued to hold to the view that it is not in A’s interests to pay him the whole of what remains of the damages, as he is likely to waste it gambling and soon render himself destitute. A has continued to maintain that it is his money and that he should be free to do what he likes with it. Through his solicitor, it is submitted that the Tribunal overlooked, or did not give proper weight to the principles to be observed in discharging its duty as mandated by s 3(2), especially by s 3(2)(a), that the person's views and wishes, so far as they can be ascertained, should be given paramount consideration. Conversely, it is submitted that the Tribunal gave too much weight to its own views of how A’s welfare and interests should be appropriately protected.[20]
[20] A v Guardianship and Management of Property Tribunal [1999] ACTSC 77 [65]
Applying section 3(2)(a), the Court found that A was competent to manage his own money. The Court said:
It may not be easy to understand how or why A's views and wishes as to the management of his property should prevail over the opinion of the Tribunal as to how his welfare and interests should be protected when his condition is such that he continues to be subject to guardianship under the Guardianship Act and to a mental health order under the Mental Health Act, and when the Tribunal considers him incapable of making reasonable decisions about his financial affairs. But that is exactly the outcome which s3 of the Guardianship Act tends to encourage and to bring about. It discourages the notion that simply because a person is affected by some mental disorder, he or she should be deprived of the practical means of enjoying his or her property. It dispels the notion that mental illness necessarily means the loss of the right to use or misuse one’s own property. It emphasises the distinction between a person who needs a guardian for his or her welfare and a person who needs a manager for his or her property, or some of it, because he or she is legally incompetent to enter into a transaction relating to that property.[21]
[21] A v Guardianship and Management of Property Tribunal [1999] ACTSC 77 [67]
The Guardianship Act was amended in 2001[22] by inserting what is now section 4 (Principles to be followed by decision-makers). The first and second of those principles qualify the obligation to give effect to the views and wishes of the person. They state:
4 Principles to be followed by decision-makers
(1) This section applies to the exercise by a person (the decision-maker) of a function under this Act in relation to a person with impaired decision-making ability (the protected person).
(2) The decision-making principles to be followed by the decision-maker are the following:
(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
[22] Guardianship and Management of Property Amendment Act 2001
The Explanatory Memorandum to the Bill that became the amending Act states:
The [Guardianship] Act provides that in making decisions under the Act about people, their wishes should receive paramount consideration, and their welfare and interests should be appropriately protected. This creates conflict between the person’s wishes and their welfare. Giving effect to the former may endanger an individual’s personal and financial welfare.
This Bill clarifies the principles for decision making to be observed by those acting under the [Guardianship Act]. For the purpose of the Act, the person’s interests would include (but not be limited to) the preservation of his or her safety, prevention of physical and mental deterioration, the ability for self-care and to live in the general community and participate in community activities, to maintain the non-harmful aspects of the person’s preferred lifestyle, the promotion of financial security, and prevention of dissipation of financial resources or destitution.
Decisions are to be made according to the person’s wishes, unless to do so would significantly adversely affect his or her interests, which are defined in the Act. Where the person’s wishes cannot be determined, then decisions are to be made in accordance with his or her interests. Autonomy, self-care and community participation are the basis for making and applying decisions. These are called the decision-making principles.
The decision-making principles apply not only to a person appointed as a guardian and/or manager. They apply also to the tribunal, when deciding whether to appoint a guardian and/or manager. That is clear from section 4(1), which provides that the principles apply in relation to “the exercise by a person … of a function under this Act.” The principles apply therefore when the tribunal is determining whether it is satisfied, for example, of the matters set out in section 7(1)(b)(ii) and 8(b)(ii) and hence whether to appoint a person as a guardian and/or manager.
To give effect to a person’s views and wishes unless doing so is likely to significantly adversely affect their interests is easily stated, but can be difficult to apply. Caution should always be exercised to ensure that the proviso does not too easily displace the general rule. In XYZ v State Trustees, Cavanough J said:
VCAT’s reasoning in this case shows that there may be a need for VCAT to re-examine the exercise of its guardianship and administration jurisdiction generally to determine whether the balance has swung too far in favour of paternalism or protection as against individual autonomy.[23]
[23] XYZ v State Trustees Limited and Anor [2006] VSC 444 [66]
In Moore v Guardianship & Administration Board, Gobbo J of the Victorian Supreme Court said:
Moreover, as is said in the report relied upon by Parliament in framing the legislation and referred to in Hansard, it must be a very rare case that will see an order made against the wishes of a represented person.[24]
[24] Moore v Guardianship & Administration Board [1990] VR 902 [916]
In XYZ v State Trustees,[25] Cavanough J referred to a decision of the Court of Appeal of the Supreme Court of Victoria in Qumsieh v Guardianship and Administration Board where the Court noted, with obvious approval:
In exercising its powers the Board reminded itself of its obligations, prescribed by s 4 of the Act, to perform its functions so that, inter alia, the best interests of the person with the disability are protected and the wishes of that person are, wherever possible, given effect to.[26]
[25] XYZ v State Trustees Limited and Anor [2006] VSC 444 [29]
[26] Qumsieh v Guardianship and Administration Board [1998] VSCA 45 [6]
In XYZ (Guardianship), cited with approval by Deputy President Nihill of VCAT in HRI (Guardianship),[27] Deputy President Billings said:
Although the Minister also stated there that “there is no suggestion in the proposed legislation, inherent or implied, that any person will be compelled to apply for guardianship”, he did not make any mention, let alone special mention, of the requirement to give effect wherever possible to the wishes of the person with the disability. Similarly, the Report of the Minister’s Committee gives no special emphasis to the person’s wishes.
I say at once that I do not suggest here that what I have just mentioned would somehow reduce the importance of the requirement to give effect to the person’s wishes. The person’s wishes are obviously of very special importance. It simply supports the view that, while clearly intending that the person’s wishes be given effect to wherever possible, the Victorian Parliament did not intend that the person’s wishes would be the paramount consideration.[28]
[27] HRI (Guardianship) [2015] VCAT 1140 [81]
[28] XYZ (Guardianship) [2007] VCAT 1196 [76]-[77]
In ER, the tribunal referred to the decision of Justice Baker of the Court of Protection (England and Wales) who said:
There is, I perceive, a danger that professionals, including judges, may objectively conflate a capacity assessment with a best interests analysis. … I remind myself again of the danger of the ‘protection imperative’ identified by Ryder J in Oldham MBC v GW and PW ([2007] EWHC136 (Fam) [2007] 2 FLR 597). These considerations underpin the cardinal rule, enshrined in statute, that a person is not to be treated as unable to make a decision merely because she makes what is perceived as being an unwise one.[29]
[29] In the Matter of ER [2015] ACAT 73 [56]
Regarding section 7(1)(b)(i), “a need for a decision in relation to the matter” is a reference back to “the matter” in relation to which the person has impaired decision-making ability. “Need” entails more than an option to achieve a preferred outcome. The person’s views and wishes must also be considered when determining whether there is that need.
In this case, Jane rejected the claim that any decision needed to be made. She wishes her life to continue as it is. Pursuant to section 4(2)(a), her wish to do so should be respected unless giving effect to her wish is likely to significantly adversely affect her interests.
On the evidence, I was satisfied that there is a need for decisions to be made regarding Jane’s ongoing accommodation and medical needs and to secure her health and welfare as best as practicable. To give effect to her wishes to the contrary is likely to significantly adversely affect her interests. Her impaired decision-making ability leading to a decline in the cleanliness of her home is not, despite her pride, likely to significantly affect her interests but her impairment giving rise to a real risk of a fall or fire does. There is a real risk that either would be fatal.
Regarding section 7(1)(b)(ii), I was particularly troubled by the risks that Jane was exposed to, consequent upon her lack of insight into her personal circumstances. There is a significant degree of subjectivity when assessing risk, the seriousness of the risk and whether a person should be able to live as they choose despite risk and despite lack of insight into the risk, but I was satisfied in this case that the risks are unreasonable.
Much stemmed from the circumstance that Jane lives alone, meaning without ongoing and close support. If Jane lived with another person, her circumstances might be quite different especially if that person could: accompany Jane on her walks, or at least know where to look (and promptly) if she were not to return; ensure that the stove was turned off after use; assist Jane were she to fall; fill Jane’s Webster-pak with necessary medications and ensure she was taking them; and assist her with her cooking. If that was so, it would be difficult to see how section 7(1)(b)(i) or (ii) would be met. Indeed, were that to be the situation, I doubt the application for appointment of a guardian would have been made.
This case highlights the importance of families and friends looking after each other.
To some degree, the risks arising from Jane living by herself, and wishing to do so, could be managed by other means. For example, the social workers from RADAR are ready and willing to provide her with in-home support. They pointed out that Jane’s inability to find her way home after a walk could, to some degree, be managed by a tracking bracelet. The consequential risks from a fall could be alleviated if Jane wore an emergency device by which she could call for help.
In short, support for Jane may well avoid the need for decisions to be made or avert unreasonable risk, but the problem is that Jane, through lack of insight, steadfastly refuses any of these supports.
This is not a case, in my view, where it is appropriate to permit Jane to continue living the life she wishes to live, despite the risks. There would be widespread and justifiable criticism of the Tribunal for not granting the application for appointment of a guardian, notwithstanding the medical evidence, were Jane to be found wandering on the Federal Highway, or found on the floor of her home with a broken hip several days after the event, or worse.
Regarding my appointment of the PTG as Jane’s manager, I was satisfied that Jane is likely to “do something” that involves unreasonable risk to her finances and property, namely lose or give away her money and unintentionally set fire to her house.
Regarding her finances, better management of her funds is necessary if she is not to be left destitute. It is one thing to give what was, for her, a significant amount of money to a busker. It is another thing altogether to have no recollection of doing so, and to seek to continue to do so. The first gift might not have been an unreasonable risk to her property, but there is an unreasonable risk that she would make gifts of that amount on an ongoing basis.
Regarding her accommodation, the lessor may reasonably take steps to terminate the lease in circumstances where it is not being properly maintained and where there is a real risk of its destruction by fire.
Section 7(1)(c)(i) and (ii): needs and interests
Section 7(1)(c)(i) and (ii) require the Tribunal to consider what “will” occur if a guardian is not appointed. Section 8(1)(c)(i) and (ii) provide similarly in relation to the appointment of a manager. Implicit within the language of the provisions are two propositions.
First, the language permits the possibility or probability that the person’s needs can (still) be met or their interests can be protected without the appointment of a guardian and/or manager. For example, with support or with a less stringent approach from service providers, it might be possible for a person’s needs to be met or their interests to be protected without appointment of a guardian and/or manager. The word “will” in section 7(1)(c) and section 8(1)(c) permits the possibility, without the need for certainty, that the outcomes can (still) be achieved without an appointment. If that possibility exists, section 7(1)(c) and/or section 8(1)(c) are not met.
Second, again arising from the word “will”, the Tribunal does not need to be satisfied that appointment of a guardian and/or manager will enable the person’s needs to be met or will ensure that their interests will not be significantly adversely affected. Many other extraneous factors can play a part. That the appointment of a guardian or manager might avoid or address an adverse outcome (of the kind described) that otherwise “will” occur is enough.
In this case, I was satisfied that if a guardian is not appointed, Jane’s needs will not be met and her interests will be significantly adversely affected.
I was also satisfied that if a manager is not appointed, her interests will be significantly adversely affected.
For example, on the evidence presented at the hearing, Jane needs alternative supported accommodation where she will be safer, however much she might dislike the idea. Also, on the evidence, Jane’s interests would be significantly adversely affected if a guardian is not appointed because she would continue to choose to live alone and at significant risk, primarily because of her lack of insight into her changed circumstances.
Appointment of the PTG as Jane’s guardian might not secure her needs or eliminate the risks she faces, but there are reasonable prospects that those results can be achieved, which is enough. I give some examples.
Appointment of a guardian will not facilitate provision of support services to Jane. RADAR is already willing to provide those services, and does not need a ‘decision’ by anybody in order to do so. The issue is Jane’s unwillingness to receive them. As is often appropriately and correctly noted, a guardian or manager is appointed to make decisions on behalf of the ‘protected person’, not to provide care, but the PTG could make decisions to implement Jane living elsewhere. Faced with that prospect as a real possibility, Jane’s attitude to receiving support might change.
To appoint the PTG as Jane’s guardian with power to decide where and with whom Jane will live does not touch on the more difficult task of determining what decisions to make. There are also practical difficulties. To decide and implement a decision that Jane live elsewhere where she can obtain care and support will be of limited assistance if Jane refuses to leave her present home. The challenging task is to persuade Jane to accept support or to move to an aged care facility. However I was satisfied that if a guardian was not appointed neither of those tasks, and preferably successfully the former, could even progress.
The appointments are not a solution to the difficulties that Jane faces. They provide only a legal framework within which difficult decisions can be made. What those decisions should be will depend very much on the human dynamics and interactions between Jane and those who care for her over time.
Regarding the appointment of the PTG as Jane’s manager, I was satisfied that the appointment might protect her interests through independent management of her money, and that her interests will be significantly adversely affected if a manager is not appointed. That was enough to meet the third criterion.
A moment in time
Sections 7 and 8 of the Guardianship Act are written in the present tense. They require the Tribunal to be satisfied that the person ‘has’ impaired decision‑making ability; that there ‘is’ or ‘is likely’ to be a need for a decision or that the person ‘is likely’ to do something that ‘involves, or is likely to involve’ unreasonable risk to them; and that if a guardian or manager ‘is’ not appointed the person’s needs will not be met or their interests will be significantly adversely affected.
The Tribunal is necessarily obliged to consider the operation of sections 7 and 8 at the moment in time when it hears the application, but must be alert to the fact that circumstances can change. In ER, the Tribunal said, and I agree:
The Tribunal accepts the submission made by the Chief Psychiatrist that the degree of any person's capacity may fluctuate over time and may be diminished by factors such as illness, fatigue, intoxication, pain, or undue influence. Further, this observation applies to the population generally, not just a person living with intellectual disability. A person's capacity to make decisions may also improve over time.[30]
[30] In the Matter of ER [2015] ACAT 73 [75]
Circumstances can change in relation to other criteria about which the Tribunal must be satisfied in order to appoint a guardian and/or manager. For example, relevant to this case, later provision of support services sufficient to enable an elderly person with dementia to continue living in their home or to address their needs or risks may mean that neither of the second and third criteria in section 7 and/or section 8 continue to be met, even if they were at the time of the hearing. Relocation to more suitable accommodation can also have that result.
In XYZ (Guardianship), Deputy President Billings of VCAT made the following observation:
Just as each person is unique so is each proceeding under the Guardianship and Administration Act 1986 unique.
When the statutory definition of “disability” is considered (intellectual impairment, mental disorder, brain injury, physical disability or dementia: section 3(1)), it can be recognised immediately that disability can be mild, moderate or severe. So too can the impact of the disability on a person’s cognitive or decision-making capacity be mild, moderate or severe. Then, depending on the person’s circumstances (including not only family or other support or the existence of an EPA but also the person’s actual exposure to risk of exploitation), there may be greater or lesser need for an administrator. Even the person’s wishes, if the person can express them, may be more or less strongly held. And what the person’s best interests require may change over time. When it is also considered that the person’s condition can be static, progressive, fluctuating or improving it will be obvious that, as the legislation requires, an administration order should never be made “once and for all” but should be reassessed later on.
…
Even where an administrator has been appointed, the legislation recognises that the issues may still not be totally clear. The Tribunal may make a limited administration order, tailored to the needs of the person with a disability. Whether or not the order is limited, the administrator must exercise power in such a way as to encourage and assist the represented person to become capable of administering his or her estate: section 49(2)(a). This indicates a realisation that there will be people on the verge of no longer needing an administrator but who for the time being still do need one.
All this justifies an approach by the Tribunal, in appropriate cases, to make or continue an administration order even though the person’s disability may be mild, or the impact of the disability on the person’s capacity may be mild, or the need for an administrator may not be absolute. The Tribunal has discretion that it must exercise in the person’s best interests having taken into account matters including the person’s wishes. If the Tribunal makes an administration order, nevertheless the circumstances may soon warrant reassessment of the order. Any person can apply for a reassessment. This may actually be the administrator who, if properly exercising power under the Act, would be especially well placed to see that the order may no longer be necessary or in the person’s best interests.[31]
[31] XYZ (Guardianship) [2007] VCAT 1196 [47]-[51]
As Deputy President Billings observed, a guardian or management order should never be made “once and for all”. In recognition of that principle, section 19(1)(a) of the Guardianship Act states:
(1) The ACAT may at any time, on application or on its own initiative, hold a hearing to consider—
(a) whether an order appointing a guardian or manager should be—
(i)varied; or
(ii)revoked on the ground that the need for guardianship or management no longer exists
A guardian and/or manager, and any other person with an interest in a protected person’s welfare, should be mindful that a person’s circumstances can change over time and that a guardianship/management order should properly reflect their circumstances from time to time. If circumstances materially change, the fact that the order was, or may have been, properly made at the time it was made is irrelevant.
In this case I appointed the PTG as Jane’s guardian and manager by reference to her circumstances at the time I made the order. Things can change, and perhaps they already have.
For example, the medical opinion at the time of the hearing was to the effect that Jane needs to relocate to a place that can offer 24 hour supported accommodation. It does not follow that that must occur. The PTG’s task, as guardian, is not simply to implement an opinion expressed many months previously. It might be that Jane, faced with a statement from the PTG that she must accept a suite of supports in order to continue living in her home, would agree to do so, however much she might disagree with the need for those supports. Conversely, her circumstances might have changed to the point where that is no longer an option. The case highlights the ongoing responsibilities of a guardian.
I make the same observation about my decision to appoint the PTG as Jane’s manager. On the evidence, Jane’s only material assets are her pension and her residential lease. On the evidence before me, I was satisfied that Jane is likely to “do something” that would put either or both at unreasonable risk, but that might change. Her bank might be able to put arrangements in place to better manage her money. Support services might alleviate concerns of her landlord. These are considerations for the PTG over time.
Attendance of the subject person
This case highlighted a further issue that warrants comment. My prior reading of the reports regarding Jane gave me an impression of an elderly, frail person in the twilight of her life. I could not have been more wrong. Jane strode into the hearing room at a quick pace, unaided, and ahead of Julia and the social workers. Unlike many others who are the subject of a guardianship application from whom comment needs to be carefully and slowly drawn in order to ascertain their views and wishes about the application, Jane was the first to speak at the hearing. She spoke with a strong and articulate voice, quickly engaging in courteous but defiant resistance of the hearing and its purpose.
But for Jane’s attendance, I would have had little if any ability to know or appreciate her point of view, and yet the sole purpose of the hearing was to decide whether to make decisions (and, in her view, adverse decisions) regarding her health, welfare, finances and property.
Well established principles of procedural fairness, one of which is an opportunity to be heard, in my view bear heavily upon the conduct of a fair and purposeful hearing in guardianship matters, particularly where the proposed protected person (and Jane in this case) opposes the proposed orders.
Being heard, of course, is not mandatory. In Allesch v Maunz, Kirby J of the High Court observed:
Sometimes … a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law in principle require. [32]
[32] Allesch v Maunz [2000] HCA 40 [38]
The right to an opportunity to be heard also explains why every effort should be made to overcome any impediment that is preventing a person’s attendance. Jane’s attendance at the hearing well illustrated the importance and value of hearing from the protected person whenever possible.
The importance of hearing from the protected person accords with comment by the Australian Law Reform Commission in its recent report, Elder Abuse – A National Legal Response. The Commission referred to Article 13 of the Convention on the Rights of People with Disabilities,[33] which provides that access to justice should be provided:
including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants.
[33] Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008)
After considering the issues, the Commission made the following recommendation:
The Australian Guardianship and Administration Council should develop best practice guidelines on how state and territory tribunals can support a person who is the subject of an application for guardianship or financial administration to participate in the determination process as far as possible.[34]
[34] Australian Law Reform Commission, Elder Abuse – A National Legal Response, ALRC Report No 131 (2017) paragraphs [10.32]-[10.46] (Recommendations 10-2)
………………………………..
Presidential Member G McCarthy
HEARING DETAILS
FILE NUMBER: | GT 134/2018 |
TRIBUNAL MEMBERS: | Presidential Member G McCarthy |
DATE OF HEARING: | 21 September 2018 |
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