J
[2018] WASAT 29
•26 APRIL 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: [2018] WASAT 29
CORAM: SENIOR MEMBER J MANSVELD
HEARD: 19 FEBRUARY 2018
DELIVERED : 19 FEBRUARY 2018
PUBLISHED : 26 APRIL 2018
FILE NO/S: GAA 3853 of 2017
BETWEEN:
FILE NO/S: GAA 3855 of 2017
BETWEEN: J
Represented Person
Catchwords:
Guardianship and administration - Urgent hearing - Guardianship order made - Guardianship order reviewed - Capacity - Dementia - Complex decision‑making - Need for guardianship and administration orders - Enduring power of attorney - Enduring power of guardianship - Best interests - Guardianship and administration orders made - Enduring power of attorney and enduring power of guardianship revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 84, s 90, s 108, s 110N
Result:
Guardianship and administration orders made
Enduring power of attorney and enduring power of guardianship revoked
Summary of Tribunal's decision:
J is a 93‑year‑old man diagnosed with dementia.
In November 2017, J was admitted to hospital after a fall in his home. InDecember 2017, he was discharged to a transitional care facility for rehabilitation.
At the end of December 2017, a social worker with the transitional care facility made an urgent application for the appointment of a guardian for J and the appointment of an administrator of his estate.
The application was made under the Guardianship and Administration Act 1990 (WA).
On 22 December 2017, J had appointed his friend and neighbour T as his enduring guardian under an enduring power of guardianship and his attorney under an enduring power of attorney.
On 22 December 2017, the Tribunal appointed the Public Advocate as J's limited guardian with the authority to decide his accommodation and any support services he might need. The operation of the enduring power of guardianship was suspended in respect to those authorities given to the Public Advocate.
The guardianship order was set for review in one month and the application for an administration order was adjourned.
On 19 February 2018, the Tribunal heard the review of the guardianship order and the adjourned administration application.
The Tribunal found that although J had retained some decision‑making skills, complex decision‑making was now beyond his abilities.
Complex decisions concerned whether J should return home; if he did, what assistance he would need; and if and when a point was reached, when he would require nursing home care.
J had a difficult medical profile. The Tribunal found that the complications that arose from his many physical conditions precluded him from fully understanding the implications of the treatment he received.
The Tribunal further found that the management of J's estate included complexities that were beyond his capacity in the context of his progressive neurological decline.
Concerns had been raised as to whether J had capacity at the time he executed the enduring power of attorney and enduring power of guardianship. Concerns had also been raised about the conduct of T and allegations of controlling behaviour towards J.
The Tribunal was not required to consider those matters further because T supported the appointment of his daughter as guardian and his daughter and son‑in‑law as joint administrators. Those appointments were also supported by J and not opposed by the Public Advocate.
Consequently, guardianship and administration orders were made and the enduring power of attorney and enduring power of guardianship were revoked.
Category: B
Representation:
GAA 3853 of 2017
GAA 3855 of 2017
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL
Introduction
J is a 93yearold man diagnosed with dementia.
In November 2017, J was admitted to hospital after a fall in his home. In December 2017, he was discharged to a transitional care facility for rehabilitation.
At the end of December 2017, a social worker with the transitional care facility made an urgent application for the appointment of a guardian for J and the appointment of an administrator of his estate.
The application was made under the Guardianship and Administration Act 1990 (WA) (GA Act).
The concern raised by the social worker in the application was that T, a friend and neighbour of J, was allegedly stating that he was going to discharge J and have him return to his home. The team at the transitional care facility were of the view that J was not yet well enough to return home.
T purportedly was relying upon an authority granted him by J under an enduring power of guardianship (EPG) made on 22 December 2017.
There was also said to be an enduring power of attorney (EPA) made by J on 22 December 2017 in favour of T.
The Tribunal heard the application on an urgent basis on 22 December 2017 and made the following orders:
(1)The Public Advocate was appointed J's limited guardian with the authority to decide his accommodation and any support services he might need. The operation of the EPG was suspended in respect to those authorities given to the Public Advocate.
(2)The application for an administration order was adjourned; and
(3)The guardianship order was set for review in one month pursuant to s 84 of the GA Act.
On 19 February 2018, the Tribunal heard the review of the guardianship order and the adjourned administration application.
Present at the hearing were J, T, KD (T's daughter), SG (T's soninlaw), CD (social worker at the transition care facility), Dr B, general practitioner and DD from the Office of the Public Advocate.
J was assisted by an advocate.
Decision
On 19 February 2018, KD was appointed limited guardian with authority to decide J's accommodation (both temporary and permanent), his need for support services and to make his ongoing treatment (medical) decisions.
KD and SG were appointed J's joint plenary administrators with an authority to expend up to a total amount of $2,500 per annum on gifts from J's estate.
The EPG and the EPA were revoked.
The following are the reasons for these appointments.
Relevant legislation (the GA Act)
The primary concern of the Tribunal is the best interests of J: s 4(2) of the GA Act.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of J as expressed, in whatever manner, at the time, or as gathered from his previous actions: s 4(7) of the GA Act.
J is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
Under s 43(1)(b) of the GA Act the Tribunal cannot consider appointing a guardian for J unless it is satisfied on the evidence that he is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect of matters relating to his person; or is in need of oversight care or control in the interests of his own health and safety or for the protection of others.
Under s 64(1)(a) of the GA Act, the Tribunal cannot consider appointing an administrator of the estate of J unless it is satisfied on the evidence that by reason of a mental disability, he is unable to make reasonable judgments in respect of matters relating to all or any part of his estate.
Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to J the Tribunal must further determine whether he is in need of guardianship and administration orders. If the needs of J can be met in a manner less restrictive of his freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
If the Tribunal decides that J is in need of guardianship and administration orders it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68 , s 69 and s 84 of the GA Act.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of J then a plenary order should not be made. If limited guardianship and administration orders are made the orders must place the lease restriction necessary on J: s 4(5) and s 4(6) of the GA Act.
Upon review of a guardianship order, the Tribunal may, as it considers in the best interests of J, confirm the order or amend the order, revoke the order or revoke the order and substitute another order for it. The Tribunal may revoke the appointment of any guardian, appoint a new or additional guardian or appoint an alternate guardian: s 90 of the GA Act.
J's capacity, evidence and submissions
Medical and allied health
The Tribunal has before it a number of medical and allied health reports dating from 2011. They are, in chronological order:
•a report from Dr L, physician from November 2011;
•letters/reports by the aged care assessment team (ACAT) from March 2015, November 2017 and February 2018;
•hospital discharge summary from December 2017;
•hospital inpatient social worker reports from January 2018;
•reports from Dr B, general practitioner (GP) from January 2018;
•reports from the transitional care social worker from February 2018; and
•reports from Dr A, Consultant in Geriatric Medicine from February 2018.
The report of Dr L from 2011 states that J had been given a diagnosis of Alzheimer's disease which had been confirmed by a consultant geriatrician.
The March 2015 report of the ACAT relevantly states that J had scored 16/27 in a Mini Mental State Examination (MMSE) and had lost points on recall, language, attention and calculation. J was in receipt of home care services for personal care (three days per week) and fortnightly domestic assistance. The ACAT had recommended approvals be given for increased home services, permanent residential care and low level respite care in respect to his future care planning. J declined the recommendation for the increased approvals. A comment in the report refers to T as J's carer and T being considered overbearing, controlling and with a tendency to answer questions directed at J.
The hospital discharge summary from December 2017 states that J had been admitted to hospital after a fall at home when he was being showered by a support worker. J was reviewed by an occupational therapist who initially assessed him as needing assistance with toileting and prompting for his activities of daily living. However by the time of discharge J required minimal assistance. At first J was said to regularly change his mind as to whether he should go into transitional care. The psychogeriatric team had formed the impression that J's insight appeared reasonable and his cognitive capacity regarding accommodation decisions was not then a concern. By the time of the discharge J was happy to go into transitional care. Provision was made for an urgent capacity assessment to be undertaken by the older adult mental health services should that become necessary.
The hospital inpatient social worker stated in January 2018 that a formal capacity assessment of J was not undertaken because he had become agreeable to going into transitional care. Reference was made to a Rowland Universal Dementia Assessment Scale (RUDAS) score of 12/30 in which J was assessed as having deficits in memory retrieval, problem solving, insight and judgment. J had told the social worker that he was mostly independent in maintaining his financial affairs in the community and that he received informal assistance from T. Whilst in hospital J was said to fluctuate in his willingness to accept services in the home.
Dr B in his report from January 2018 states a diagnosis of mixed dementia (Alzheimer's disease and vascular dementia). The GP was unable to form a view as to J's capacity to make personal and simple financial decisions but assessed J as incapable of making complex financial decisions or being able to deal with legal matters. The GP stated that J was prone to change his mind and reverse previously made decisions. He was also said to be unable to recall significant matters or events.
The February 2018 report of the ACAT states that J had difficulty following instructions and could occasionally be resistive to care. It was considered that he might lack insight into his care needs. Mention is made of a RUDAS that took place on 11 December 2017 in which J scored 17/30. At the time J was ambulating independently with a Zimmer frame. He required prompting to shower and needed assistance with dressing and shaving. He was incontinent of urine and occasionally faeces. J was approved for a high level care package, residential respite care and permanent residential care.
The transitional care social worker states in her report that J could not recall making the EPA. She observed J's cognition varying from day to day, being quite lucid and then at times he was confused, had poor shortterm memory and was unable to follow through with a discussion. J seemed to accept the need for care in his home but equally accepted the possible need for residential aged care.
Although ready for discharge from transitional care J was unable to explain to staff what would need to happen for him to feel ready to return home. He would consistently say that he wanted to go home but appeared unable to follow through with that decision. J expressed some anxiety about being on his own at night if he returned to his home.
Dr A states that she assessed J on 15 February 2018. Dr A opined in her report that J has moderate Alzheimer's dementia which is a progressive neurodegenerative condition. At the time of the assessment J was able to retain information, weigh the options and understand information relating to a decision about his personal finances and future living arrangements. He was able to communicate his decision in these matters freely and consistently. Dr A recommended that an administrator be appointed given J's financial vulnerability and that he required assistance with more complex matters including if and when moving into residential care.
Dr B gave oral evidence and responded to Dr A's assessment. Dr B states that J's level of ability varies and this is common in people with Alzheimer's dementia. J is able to 'fool' interviewers with his good social skills but his thinking is generally shallow and he does not display a deep understanding of the issues the subject of the decision to be made.
Other
DD had interviewed J on 16 January 2018. J did not recall the Tribunal proceeding and despite having things explained to him, was unclear about the issues raised by the applications for the appointment of a guardian and an administrator. J was of the belief there was nothing wrong with him and that he could still live in his home. He later told DD that if he was not well enough he would need to go into a nursing home, however believed he could make the necessary decisions himself.
J could not explain an enduring power of attorney and enduring power of guardianship and was emphatic in telling DD that he had never signed the EPA and EPG. When shown the documents by DD he expressed amazement but confirmed his signature and then said he did remember making the EPA and EPG. J was of the view he did not need anyone to manage his finances.
T states that J has good days and bad days which he accepts impacts on J's decision-making abilities. He says he was not aware of the 2011 diagnosis of Alzheimer's disease made by Dr L as J had not shown him the doctor's letter.
KD states that she was not initially aware that J had been diagnosed with dementia. Prior to his most recent hospital admission he appeared to be doing things for himself. KD had noticed J experiencing some confusion but took that to be a consequence of his advancing years.
SG says he also was not aware of the dementia diagnosis. He had observed J's confusion in transitional care but thought it was caused by a delirium.
J's advocate states in confirmation of what J told DD, that J had no recollection of signing the EPA and EPG. J also said to her that he can manage his finances.
The need for a guardian and an administrator, evidence and submissions
In a written submission KD states that her family has been involved with J for many years and has assisted him on a consistent basis. She considers it unnecessary for the applications to have been urgently made by the team at the transitional care placement. She says J would not have been removed from transitional care against his wishes. DD states that KD told him that she considers J part of her family.
KD states that she and her mother have secured and managed significant amounts of cash that J has withdrawn from his bank account from time to time and have been acting on his instructions as to what bills to pay.
KD states that J is a generous person in gifting to family members for special occasions.
KD states that she would like for J to have a chance to return home from transitional care and would try to respect his wishes. If J did return home she could not say how long that could last and would review the decision in a timely manner.
KD proposes herself as guardian and jointly with SG as administrator of J's estate.
SG consents to his appointment as joint administrator with KD.
T states that he has not been overbearing but has always acted in J's best interests. He says he has assisted J with various matters including the payment of accounts and organising J's medications through Websterpaks.
T states that he has had discussions with his daughter and soninlaw (KD and SG) with a view to transferring authority for J's decisionmaking to them which he supports.
The hospital inpatient social worker states that T and his wife report a close personal relationship with J and that they were observed to regularly visit him on the ward. During the hospital admission J reported that he had lived alone since the death of his wife about 30 years ago and it is the social worker's understanding that T and his wife have been J's main supports during that time.
The transitional care social worker states that T and his wife are J's neighbours who have known and cared for him for over 50 years. They class themselves as family and J describes T as his carer. T's daughters and soninlaw have been and continue to be involved in J's life and J has consistently said to the social worker that he wants T's daughters to inherit his estate.
The transitional care social worker states that the reason the applications for the appointment of a guardian and an administrator were made on an urgent basis was because T was prepared to discharge J from the transitional placement against J's wishes and medical advice. In that regard she submits that T had no regard for J's safety or best interests.
The transitional care social worker also states that J has been consistently saying that he did not know what he was signing when presented with the EPA and EPG and that he does not want T to manage his finances because T is controlling. She expresses concern if T was to resume any control over the decisions that need to be made for J. She is also concerned that if KD is appointed J's guardian and administrator that KD will be influenced by T.
DD states that a hospital social worker told him that whilst J was an inpatient in December 2017, T attended the ward with a lawyer. The social worker said to DD that she had advised the lawyer that the assessment of the treating medical team was that J was not competent to make an EPA.
DD submits that T's evidence that he was not aware of the 2011 diagnosis of dementia made by Dr L, is implausible given T's ongoing involvement with J.
DD states that he supports the appointment of a guardian and administrator for J, that it should not be T and that he is not opposed to the appointments of KD and SG as proposed by KD.
The advocate for J states that she has met him four times to discuss his circumstances and is confident she has been able to get a sense of what he wants.
The advocate states that J would like to return home from the transitional care facility but his responses to what assistance he would need have varied. J would be open to a nursing home placement if the return home is not successful. J has no recollection of signing the EPA and EPG. J believes he can manage his financial affairs but if support is needed he would choose SG and KD. J accepts that T helps him in his home. If a guardian is needed, he has no particular preference as to who that should be.
In respect to J's general physical (medical) state, Dr A in her report mentions that J's medical history includes benign prostatic hypertrophy, gout, osteoarthritis, osteoporosis, monoclonal gammopathy of undetermined significance, myocardial infarction, atrial fibrillation (non-valvular) and left total hip replacement. He is prescribed a range of medications.
Discussion of the issues
I am satisfied that J has dementia and that the likely cause is Alzheimer's disease which is a progressive neurodegenerative condition. The medical opinion before the Tribunal is consistent in respect to this diagnosis.
The diagnosis of dementia is not of itself sufficient to find incapacity even though incapacity is the inevitable outcome over the course of the illness.
The Tribunal needs to find that at the time of the hearing the impact of J's dementia on his cognition has reached a point where incapacity can be found.
The evidence before the Tribunal which I accept on the basis of its uniformity is that J has problems with his memory and has attendant confusion. He varies as to the responses he gives to people when considering what assistance he might need if he returns to live at home and he seems to be unable to follow through with his wishes.
The need for assistance is not something new. J has been receiving informal and formal assistance for personal and financial matters for some time prior to the most recent hospital admission. This is not surprising given that J was first diagnosed with dementia in 2011.
I accept that J had not been in a position to cope at home without assistance before he was admitted to hospital. That assistance had included financial matters, activities of daily living and the dispensing of medications (T speaks of assisting J with Websterpaks).
J has expressed a strong wish to return home upon discharge from transitional care but this is not necessarily an indication of his capacity to make a reasonable judgment about this matter.
Although J has retained some decisionmaking skills I accept the medical evidence that what might be described as complex decisionmaking is now beyond his abilities.
In my view the decisions about whether J should return home, if he does, what assistance he will need and if and when a point is reached when he will require nursing home care, are complex matters. I agree with the assessment of Dr A in this regard.
I find also that the management of J's estate includes complexities that are beyond his capacity in the context of his progressive neurological decline. He has property and bank funds. If J becomes a resident in a nursing home (as is likely, eventually), the financial considerations will need to be assessed including such things the possible sale of his property, the assessment of fees to be paid after a declaration of his income and assets and the need to scrutinise legal agreements with the nursing home.
J has a difficult medical profile as Dr A's report indicates. I am satisfied that the complications that arise from his many physical conditions preclude him from fully understanding the implications of the treatment he receives.
I am satisfied on all the evidence that J is incapable of looking after his own health and safety and is in need of oversight, care and control in the interests of his own health and safety.
I am further satisfied on the evidence that as a consequence of his progressive dementia, first diagnosed in 2011, J is currently unable to make reasonable judgments concerning his estate, his future accommodation, support services to which he should have access and his ongoing medical treatment.
On the basis of these findings J is in need of a person with formal authority to manage his estate and to make those decisions in his personal life that I have described.
There is currently an EPA and EPG in place appointing T as J's attorney and enduring guardian. Concerns have been raised as to whether J had capacity at the time he executed these instruments. Concerns have also been raised about the conduct of T and the allegations of his controlling behaviour towards J.
KD is proposed as J's guardian and KD and SG as the joint administrators of his estate. This is supported by T and not opposed by the Public Advocate. The transitional care social worker expresses a concern that T will negatively influence the decisions KD and SG will be required to make if they are appointed. I do not doubt that the concern of the social worker is genuinely held, however there is no evidence before the Tribunal to suggest this will occur.
It is the wish of J that KD and SG manage his financial affairs.
I consider it in J's current best interests that KD be appointed his guardian and KD and SG the joint administrators of his estate. I am satisfied they will act in J's best interests, that KD is not in a position of a conflict of interest (guardianship), that they can perform the functions vested in them and that their appointment is consistent with J's wishes.
The guardianship order is to be limited in scope with the functions to be given to be to decide where and with whom J is to live both permanently and temporarily; to determine the services to which he should have access and to make his treatment decisions.
The administration order is to be plenary in scope with a gifting authority of $2,500 per annum.
By making these guardianship and administration orders I do not need to go any further regarding the circumstances surrounding the making of the EPA and EPG or T's conduct.
I will revoke both the EPA and EPG given that the continued operation of those instruments is inconsistent with the guardianship and administration orders I have made: s 108 and s 110N of the GA Act.
The guardianship and administration orders will be set for a review in five years: s 84 of the GA Act.
Orders
GAA 3853 of 2017
The Tribunal declares that the represented person, J;
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)is in need of an administrator of his estate,
and the Tribunal orders that:
1.KD and SG are appointed joint plenary administrators of the estate of the represented person with all the powers and duties conferred by the Act.
2.The administrators are authorised to expend up to a total amount of $2,500 per annum on gifts on behalf of the represented person.
3.The enduring power of attorney dated 22 December 2017 by which J appointed T to be his attorney, is revoked.
4.The administration order is to be reviewed by 19 February 2023.
GAA 3855 of 2017
The Tribunal declares that the represented person, J;
(a)is incapable of looking after his own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to his person;
(c)is in need of oversight, care or control in the interests of his own health and safety; and
(d)is in need of a guardian,
and the Tribunal orders that:
The guardianship order dated 22 December 2017 is revoked and an order in the following terms is substituted for it:
1.KD is appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person; and
(d)To determine the services to which the represented person should have access.
2.The enduring power of guardianship dated 22 December 2017 by which J appointed T to be his enduring guardian, is revoked.
3.The guardianship order is to be reviewed by 19 February 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, SENIOR MEMBER
26 APRIL 2018
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