JB
[2008] WASAT 159
•7 JULY 2008
JB [2008] WASAT 159
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 159 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:782/2008 | 30 JUNE 2008 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) MS D DEAN (MEMBER) MR J JAMES (SENIOR SESSIONAL MEMBER) | 7/07/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appointment of Public Advocate as limited guardian confirmed Public Trustee appointed plenary administrator | ||
| B | |||
| PDF Version |
| Parties: | JB |
Catchwords: | Guardianship Review of order appointing Public Advocate limited guardian Whether father suitable to be appointed guardian Arrangements for out of home care Whether father would maintain current arrangements Tribunal not satisfied in represented person's best interests for father to be appointed Appointment of Public Advocate confirmed Application by accommodation service provider to appoint administrator Whether father suitable to be appointed Invoices for costs related to accommodation ignored by father Tribunal not satisfied in represented person's best interests for father to be appointed Invoices for costs related to accommodation ignored by father Tribunal not satisfied in represented person's best interests for father to be appointed Public Trustee appointed plenary administrator |
Legislation: | Guardianship and Administration Act 1990 (WA), s 84 |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JB [2008] WASAT 159 MEMBER : MS J TOOHEY (SENIOR MEMBER)
- MS D DEAN (MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)
- GAA 1018 of 2008
- Represented Person
Catchwords:
Guardianship - Review of order appointing Public Advocate limited guardian - Whether father suitable to be appointed guardian - Arrangements for out of home care - Whether father would maintain current arrangements - Tribunal not satisfied in represented person's best interests for father to be appointed - Appointment of Public Advocate confirmed - Application by accommodation service provider to appoint administrator - Whether father suitable to be appointed - Invoices for costs related to accommodation ignored by father - Tribunal not satisfied in represented person's best interests for father to be appointed - Invoices for costs related to accommodation ignored by father - Tribunal not satisfied in represented person's best interests for father to be appointed - Public Trustee appointed plenary administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 84
(Page 2)
Result:
Appointment of Public Advocate as limited guardian confirmed
Public Trustee appointed plenary administrator
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 JB was a young man with profound multiple disabilities that made him dependent on others for all aspects of his care. He had been cared for at home by his father for many years. In 2006 the Disability Services Commission became concerned that he was being neglected and asked the Tribunal to appoint a guardian. The Tribunal appointed the Public Advocate his guardian to decide where and with whom he should live and what services he should receive, and to consent on his behalf to medical treatment. The order was to be reviewed after two years.
2 Over a long period, JB's father, DB, had been difficult to contact and had failed to keep to arrangements concerning JB's care. Even after the Public Advocate was appointed guardian, her attempts to make contact with JB were repeatedly frustrated by his father. In 2007, when she had still not met JB, the Public Advocate applied to the Tribunal for a warrant to enter the home. In the end, an agreement was reached with DB that JB would spend two weeks of "respite care" at a Senses Foundation facility and four weeks at home in his father's care on a rotating basis.
3 At the review of the order appointing the Public Advocate, the Tribunal heard, and accepted, evidence from the Public Advocate and Senses Foundation about the benefits JB gained from the periods in care and that he would benefit from increased periods of care. The Tribunal also accepted that JB's father continued to frustrate the arrangements for his care.
4 DB denied obstructing the arrangements. He did not dispute that his son gained some benefits from the respite care but disagreed that he would benefit from increased periods of care. He maintained there was no need for a formal order or, if there was, that he should be appointed guardian.
5 The Tribunal was not satisfied that DB would keep to the arrangements for respite care if he were appointed guardian and, for that reason, did not consider him suitable to act as guardian. It confirmed the appointment of the Public Advocate.
6 The Tribunal also considered an application by Senses Foundation for the appointment of a plenary administrator for JB. The Tribunal was satisfied that JB was in need of an administrator but not that JB's father should be appointed because he was unable sufficiently to separate his
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- own financial interests from those of his son. It appointed the Public Trustee plenary administrator for five years.
Background
7 These reasons are delivered orally on 7 July 2008 following a hearing on 30 June 2008. In this published version the names of the represented person and others, and other information which might identify him, have been amended.
8 The proceedings concern a review under s 84 of the Guardianship and Administration Act 1990 (WA) (the Act) of an order made by the Tribunal on 6 June 2006 appointing the Public Advocate limited guardian for JB to make decisions concerning where he should live and with whom, what services he should receive, and to consent on his behalf to medical treatment. The order was to be reviewed by 6 June 2008.
9 The Tribunal also has before it an application by Mr Garry Parker of Senses Foundation for the appointment of an administrator for JB. Mr Parker proposes the Public Trustee be appointed.
The guardianship order
10 We will deal with the review of the guardianship order first.
11 It is not in dispute that JB has profound disabilities which make him dependent on others for all aspects of his care and which make him incapable of making decisions about his own health and safety. It is not in dispute that decisions need to be made on his behalf about where and with whom he should live and what services he should receive. Nor is it in dispute that someone needs to consent on his behalf to medical treatment.
12 What is in dispute is who should make those decisions for him.
13 The Public Advocate, Senses Foundation who currently provide "respite care" for JB, and the Disability Services Commission who have been involved with him in the past but less so for some years now, all agree that it is in JB's best interests for the Public Advocate to remain his guardian. They say he has gained considerable benefits from the respite care and would benefit further from increased periods of care. They say that, without an independent guardian, JB's father would likely frustrate the arrangements for respite care.
14 JB's father, DB, maintains that he has cared for JB all his life and should be allowed to continue to make decisions on his behalf. He does
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- not dispute that respite care provides some benefits but he maintains a formal order is not necessary or, if it is, that he should be appointed to act for his son.
15 The Tribunal has received written reports from the Public Advocate, Senses Foundation and the Disability Services Commission. We have also had the benefit of hearing oral evidence from the delegated guardian and from officers from Senses Foundation and the Disability Services Commission. We have also heard from DB and from JB's mother, KB, who attended the hearing by telephone.
Background to the Public Advocate's appointment
16 The background to the appointment of the Public Advocate, and proceedings before the Tribunal since then, are relevant.
17 The initial application to appoint a guardian was made by the Disability Services Commission. According to the application, the Commission had been trying for the previous 12 months to provide services to the family; although DB had said repeatedly that JB was in "desperate need" of services, it had proven almost impossible to provide services; Senses Foundation had been able to see JB only three times; the Commission was concerned that JB was seriously underweight and was spending most of his day alone and unoccupied. The Commission and Senses Foundation reported that all attempts to provide services and support to JB had been blocked by his father.
18 It is not necessary to go into further detail here other than to say that the Tribunal was satisfied that JB was in need of an independent guardian and appointed the Public Advocate limited guardian for two years.
19 In October 2006, following numerous attempts to see JB, all of which she said had been obstructed by DB, the Public Advocate applied to the Tribunal for a warrant to enter their home.
20 There followed a number of hearings before the Tribunal which it is not necessary to detail here other than to say that, in light of undertakings given by DB, the Tribunal did not issue a warrant but ordered that JB attend respite at a Senses Foundation facility on a regular rotation of two weeks at the facility followed by four weeks at home, until further order. The Tribunal made further orders about when the next respite visit would occur and about arrangements for DB to transport JB to the facility.
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The current review
21 The Tribunal has received written reports from the Public Advocate, Senses Foundation and the Disability Services Commission. All support the continuation of the order.
22 Senses Foundation says that JB has benefited from the services he has received over the past year since the Tribunal's orders and that his overall quality of life has improved; his health and medical needs are being cared for; he gets enjoyment from participating in activities; his communication with others and independence have increased.
23 JB has seen a doctor at least once and sometimes more, during each respite visit. He has been referred for full neurological, dietary and dental assessments. His weight has increased from 17 kilograms when respite visits started in June 2007, to 29.6 kilograms in January 2008. His weight dropped to 27 kilograms around the time that he missed a respite visit.
24 Senses Foundation reports that JB has a good appetite and feeds himself if food is put into his hand. He appears calm and relaxed with staff and his habit of injuring himself by scratching and rubbing his eyes has decreased. He now allows staff to touch his shoulder without pushing them away. He can sit fully upright at a table or in a chair and no longer adopts a foetal position. He sleeps well and is not on any medication.
25 Senses Foundation reports, and the Public Advocate and Disability Services Commission agree, that more can be achieved to improve JB's quality of life with longer periods of respite care. They believe he would benefit from the arrangement being increased to a rotation of four weeks at the facility and four weeks at home.
26 Both Senses Foundation and the Public Advocate report continuing difficulties in making arrangements with DB. The delegated guardian reports that she has written to DB prior to each respite visit to remind him of the dates and associated arrangements. In each of these letters, she has asked him to contact Senses Foundation in the event that he has difficulties providing transport for JB to or from respite. Despite this, she reports that DB has failed to get JB to respite on the agreed date on a number of occasions and, as a result, JB has missed one of the nine scheduled respite visits. She says that, at various times during the course of the order, she has been advised by staff at Senses Foundation that alternate arrangements had been made by DB but he has not followed through with these.
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27 The Public Advocate and Senses Foundation report continuing difficulties making contact with DB and they believe he is being deliberately evasive. Senses Foundation staff report that, on a number of occasions, JB has not been at home when the support worker arrived to pick him up and, on occasions, DB has cancelled services or said that JB is unwell and cannot attend for respite care. The Public Advocate notes that DB has not contacted her to advise of this or to discuss medical appointments or treatment for JB.
28 Senses Foundation reports that the uncertainty about when JB will attend respite has adversely affected the organisation of staff at the facility and has made it difficult to ensure that appropriate levels of staff are available when he does attend. It also makes arranging medical and other appointments for him more difficult.
29 DB does not dispute that JB derives some benefit from the respite visits but he disputes the extent of the benefit. For instance, he disputes that JB has gained weight while in care and attributes any apparent gain to fluid retention. He maintains that JB can receive the same care at home and that he gets more than adequate stimulation and attention at home. He disagrees with the suggestion that the respite visits should be extended although his reasons are not entirely clear. When asked by the Tribunal if he thought it worth trying out extended periods of care, he simply said he did not.
30 DB denies that he has obstructed arrangements. He disputes most of what is said about his failure to meet agreed arrangements and failure to respond to the service providers and, in particular, he denies receiving telephone messages and correspondence. He disputes the need for an independent guardian.
Review of the guardianship order - reasons for decision
31 We accept the evidence of the Public Advocate, Senses Foundation and the Disability Services Commission. We accept that JB has derived considerable benefit from the respite visits and that it is in his interest that the visits be maintained.
32 We accept the evidence of the Public Advocate and Senses Foundation about difficulties in securing DB's cooperation with arrangements for the respite visits. We accept they have made repeated attempts to contact DB including by telephone, mail and attending at his home. We do not accept DB's claims that he has not received messages
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- and correspondence or that he has not been home when people have visited.
33 Unfortunately, the resistance with which attempts by the Public Advocate and others to gain admittance to JB's home have been met means that it has not been possible for anyone to verify DB's claim that JB receives adequate care and stimulation while at home.
34 It is apparent that only concerted efforts by the Public Advocate and Senses Foundation have ensured that the respite visits occur. In light of the long history of difficulties securing DB's cooperation and that he continues to resist arrangements even with the Tribunal's orders in place, we are not satisfied that, left to DB to decide, JB would in fact attend the respite visits.
35 We accept that JB would benefit from longer periods of respite care. For the reasons we have already given and given DB's expressed disagreement with extended periods of care, we are not satisfied that extended periods of care would occur if left to DB alone.
36 We note that KB, JB's mother, who has had limited contact with him over recent years but who has visited him three times while on respite care, reports that JB is happy and content when she has seen him at the Senses Foundation facility and she supports the extended period of care proposed by the Public Advocate and others.
37 We appoint the Public Advocate limited guardian for JB to decide where and with whom he should live, what services he should receive, and to consent on his behalf to medical treatment. The appointment will be for five years. We will order that JB attend respite care at the Senses Foundation facility for four weeks at a time followed by four weeks at home on a rotating basis until such time as the Public Advocate considers it in JB's best interests that the arrangement change.
38 The Tribunal would not normally make such orders but would leave it to the guardian to decide how respite care should be arranged and for what periods. We are satisfied that the history of this matter makes such orders necessary.
The administration application
39 The administration application is made by Mr Parker of Senses Foundation. Mr Parker proposes the Public Trustee be appointed
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- plenary administrator for JB. At present his Disability Support Pension is paid into DB's bank account and DB has full control over how it is spent.
40 The cost of JB's accommodation at the facility is met by the Disability Services Commission. However, the costs of his food, toiletries and other personal items and so on must be paid for by JB from his pension.
41 Mr Parker says he has made the application because repeated requests to DB to pay the costs associated with JB's care at the Senses Foundation facility have been ignored. As well, Mr Parker says Senses Foundation have asked DB to provide JB with $60 personal spending money for each visit but he has so far provided him with $15 on one occasion only.
42 Mr Parker says he has sent invoices to DB on a number of occasions. At the time of making the application, the amount owing was approximately $1200. Senses Foundation have waived arrears owing for JB's care last year but say that doing so has effectively meant that his costs have been subsidised by other residents at the facility. They cannot continue this arrangement.
43 At the last hearing on 27 May 2008 DB denied receiving any correspondence from Mr Parker. Mr Parker has told us that, following that hearing, he sent a further set of invoices to DB by registered mail; he has confirmed that the post office delivered the usual notices to DB's home advising mail was awaiting collection but it has not been collected. Mr Parker says he sent a further set of invoices by person-to-person mail which also involved a series of notices by the post office to DB's home. That correspondence also was not collected.
44 DB maintains he did not at any time receive a notice from the post office that there was mail awaiting collection. We do not accept this. We note that he has received notices of the Tribunal hearings, although he denies receiving recent correspondence asking him to bring certain information about JB's pension to the hearing. We find DB has been deliberately avoiding any post or contact which he does not wish to receive.
45 JB receives a Disability Support Pension which recently increased from $334.50 per fortnight to $546.80 per fortnight when he turned 21. He is also entitled to a Mobility Allowance and to other allowances. A report from the Public Advocate, following inquiries with Centrelink, shows how complex the system of entitlements is, especially where a
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- person moves from living at home into respite care, as JB does. In particular, depending on how long JB is away from home, DB's entitlement to a carer's pension or allowance will likely be affected.
46 DB strongly opposes the appointment of an independent administrator. He maintains he has been unable to afford the payments to the Senses Foundation up until now, but says the difficulties he has had will be resolved now that JB's pension has increased. DB undertakes to pay all costs from now on as well as any arrears owing.
47 In light of DB's history of broken undertakings, we are not satisfied that he will honour this particular undertaking.
48 It is apparent to the Tribunal that DB does not really consider JB's money to be his, separate from DB's money. JB's pension is paid into DB's bank account by arrangement with Centrelink. In that respect, his is no different from any number of families who have a similar arrangement. However, DB's overriding concern appears to be the possible effect on his own pension should someone else manage JB's money and, in particular, if JB were to go into longer periods of respite.
49 In our view, it is in JB's best interests that an independent administrator be appointed so that he receives his full entitlements and his bills are paid regularly and his care not jeopardised in any way. We recognise that changes in JB's pension and changes in his respite care may have implications for DB's own pension but that is not a matter which we should take into account unless those changes would adversely affect JB. We are not satisfied that would be the case.
Orders
50 In relation to the review of the guardianship order, the Tribunal orders that:
1. The order under review and subsequent orders are revoked and the following orders substituted for them:
(i) The Public Advocate is appointed limited guardian for JB with the functions of deciding his accommodation, treatment and services; and
(ii) The next period of respite care is to commence on 9 July 2008 and run to 23 July 2008 or such longer period, up to four weeks, as the Public Advocate determines.
- (ii) Thereafter, Joel Bayens is to attend respite care on a rotating basis of 4 weeks in respite care followed by 4 weeks at home until the Public Advocate determines otherwise.
- 2. The Tribunal approves delegation by the Public Advocate of her functions under this order to an officer or employee employed in her Office.
3. This order is to be reviewed by 5 July 2013.
51 In relation to the application to appoint an administrator, the Tribunal orders that:
1. The Public Trustee is appointed plenary administrator for JB with all the powers and duties of the Guardianship and Administration Act 1990 (WA).
2. This order is to be reviewed by 5 July 2013.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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