JCH and CH
[2007] WASAT 4
•8 JANUARY 2007
JCH and CH [2007] WASAT 4
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 4 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1591/2006 | 23 OCTOBER 2006 | |
| Coram: | MS F CHILD (MEMBER) | 7/01/07 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for administrator dismissed Guardian appointed | ||
| B | |||
| PDF Version |
| Parties: | JCH CH |
Catchwords: | Guardianship and Administration Need Enduring power of attorney executed No need for administrator Diagnosis of serious illness Need for a guardian to consent to medical treatment and care |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43, s 43(1)(b)(ii), s 43(1)(c), s 64, s 64(1)(a), s 64(1)(b), s 104, s 109, s 119, s 119(3)(a), s 119(3)(c), s 119 (3)(d) State Administrative Tribunal 2004 (WA), s 78 |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JCH and CH [2007] WASAT 4 MEMBER : MS F CHILD (MEMBER) HEARD : 23 OCTOBER 2006 DELIVERED : 8 JANUARY 2007 FILE NO/S : GAA 1591 of 2006 BETWEEN : JCH
- Applicant
AND
CH
Represented Person
Catchwords:
Guardianship and Administration - Need - Enduring power of attorney executed - No need for administrator - Diagnosis of serious illness - Need for a guardian to consent to medical treatment and care
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 43(1)(b)(ii), s 43(1)(c), s 64, s 64(1)(a), s 64(1)(b), s 104, s 109, s 119, s 119(3)(a), s 119(3)(c), s 119 (3)(d)
State Administrative Tribunal 2004 (WA), s 78
(Page 2)
Result:
Application for administrator dismissed
Guardian appointed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Represented Person : Self-represented
Solicitors:
Applicant : Self-represented
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The State Administrative Tribunal dismissed an application for the appointment of the Public Trustee as administrator for an elderly woman suffering from dementia with a recent diagnosis of cancer. The Tribunal determined that there was no need for the appointment of an administrator as the woman had executed an enduring power of attorney and there was acknowledgement by the applicant that the financial arrangements were working well.
2 The Tribunal appointed the applicant, her stepson, as her guardian, as there was a need for someone with proper authority to make decisions about her treatment and care. There was some uncertainty in the existing informal arrangements, and this was not in her best interests, given her diagnosis and the need for treatment decisions to be made in the near future.
Background
3 These written reasons relate to the determination of applications made to the State Administrative Tribunal by the stepson (the applicant) of CH (the represented person) under the Guardianship and Administration Act 1990 (WA) (the GA Act). The written reasons are produced , pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), at the request the donee of an enduring power of attorney (the donee) executed by the represented person, and are an edited version of oral reasons delivered on 24 October 2006.
4 The written reasons are anonymised consistent with the practice of the Tribunal in respect of applications made under the GA Act.
The applications before the Tribunal
5 The applicant applied to the Tribunal for his appointment as guardian and for the appointment of the Public Trustee as administrator for the estate of the represented person. At the time of the hearing, the represented person was in hospital.
6 In the course of the hearing, the applicant sought to withdraw his application to intervene in the enduring power of attorney, executed by the represented person on 7 July 2004, by which she appointed the donee as her attorney. The donee, at that time, was her neighbour and was providing support and assistance to her. The applicant states that,
(Page 4)
- having reviewed the accounts submitted by the donee to the Tribunal, he considers that the donee "was doing the right thing", and he no longer seeks an audit of the accounts filed.
The legislative requirements
7 The GA Act provides that before the Tribunal can make orders appointing a guardian and an administrator for a represented person, it must be satisfied that she is a person for whom orders can be made, that she is in need of a guardian and an administrator, and there is no less restrictive way of meeting her needs other than the making of those orders. (s 4, s 43 and s 64).
Capacity
8 Based on the report of the represented person's doctor, dated 12 October 2006, which notes that the represented person has mild to moderate dementia and reports that she is incapable of decision-making in relation to her person and in relation to her financial affairs, and on a letter of a consultant geriatrician, dated 29 March 2006, to her general practitioner, which notes that the represented person's dementia is progressive, the Tribunal finds that she is incapable, by reason of her dementia, of making reasonable judgments about her estate and about her person, and she is therefore a person for whom a guardian and an administrator can be appointed pursuant to s 43(1)(b)(ii) and s 64(1)(a) of the GA Act.
Need
9 The GA Act provides that even where a person is not capable of managing her own affairs, an order appointing a guardian and an administrator cannot be made unless there is a need for those orders (s 43(1)(c) and s 64(1)(b)) and there is no other less restrictive means of meeting the needs of the represented person.
10 In support of his application for the appointment of an administrator, it is the applicant's view that the represented person was not capable of making the choice when she appointed the donee as the donee of her power of attorney in July 2004. He states he does not trust the donee and that there have been communication problems between them. He seeks the appointment of the Public Trustee as an independent administrator and the revocation of the enduring power of attorney.
(Page 5)
11 On its face, the document executed by the represented person as an enduring power of attorney complies with the requirements of s 104 of the GA Act.
12 The uncontested evidence is that the enduring power of attorney was drawn up by a solicitor on the instructions of the represented person and witnessed by two solicitors in July 2004. The evidence is that the represented person attended the solicitor in the presence of a carer but that the donee was not present.
13 A previous application to the Guardianship and Administration Board (the Board) for the appointment of an administrator for the represented person had been dismissed in April 2004, presumably because the member who heard that application could not be satisfied that the presumption of capacity had been set aside. It was following the dismissal of this application, also made by her stepson, that the enduring power of attorney was executed.
14 The medical evidence on the files of the Tribunal and the former Board, now in the possession of the Tribunal, does suggest that the capacity of the represented person may have fluctuated over the period, with varying scores on Mini Mental State Examination. The medical evidence includes reports from a consultant psychiatrist and from a geriatrician, as well as her then general practitioner, and an Aged Care Assessment Team report.
15 The consultant psychiatrist, in a report dated 9 December 2003, refers to the represented person maintaining contact with her stepson, neighbours and a carer. The report notes delusions and hallucinations reported by the represented person which had begun a few months prior to the assessment. The report notes that the represented person's presentation was consistent with a "resolving delirium on a background of probable mild cognitive deficit".
16 In a report, dated 7 January 2004, by a geriatrician regarding the represented person, there is a reference to "some paranoid delusions involving the sale of her house by her stepson". It was at this appointment with the geriatrician, to which he accompanied the represented person, that the applicant is understood to have been advised to seek an administration order.
17 It is not clear what the source of the beliefs of the represented person about the applicant were. The donee and her partner, who were the represented person's neighbours at this time, report that the represented
(Page 6)
- person was distressed by telephone calls from the applicant and "did not want him in the house". The partner's evidence is that it is difficult to date when these statements were made by the represented person, but he believes them to have occurred prior to the first application before the Board.
18 The applicant states he believes that these beliefs were expressed because the represented person "was not right in her mind", and that she had become suspicious of him following his application for his appointment as administrator in 2004, or perhaps when the represented person had been confused about his attempts to secure her term deposit when she had a large amount of money in a savings account which was able to be accessed by a key card. The applicant considered the represented person to be vulnerable, and had taken her to her bank where a term deposit of the bulk of her funds had been created. This occurred, according to the applicant, around the time of his application to the Board.
19 The evidence of the donee is that she had not detected any alteration of the represented person's mental state other than forgetfulness prior to her admission to hospital, and for much of this time she was in daily contact with the represented person. Her evidence is that she had only acted on the enduring power of attorney from October 2005, following the suggestion of the Aged Care Assessment Team worker.
20 That worker had reported, in a report before the Tribunal, that there had been "reluctance" on the part of the donee to act. The donee appears to have misunderstood her authority under the enduring power of attorney, and states that she believed that the represented person's doctor would advise her when her authority should be activated.
21 She states she relied on reports by the represented person of telephone calls by the applicant to the represented person, and later acted as attorney on what she understood to be the wishes of the represented person not to have contact with the applicant.
22 Whatever the background to the expressed attitude of the represented person to the applicant, the result has been a lack of trust, and difficulty in communication on both sides between the donee and the applicant when dealing with the affairs of the represented person. The applicant states that this was compounded when he found a will, executed in 2004, in the house of the represented person after her admission to hospital.
23 In relation to the application for administration, an existing power of attorney can mean that there is no need for the appointment of an
(Page 7)
- administrator, as required in s64(1)(b) of the GA Act, if that power is operating effectively to meet the needs of the proposed represented person. It is, in effect, a less restrictive alternative to which the Tribunal must have regard when considering if the need, required under s64(1)(b), is satisfied.
24 As noted above, the applicant withdrew his application for intervention in the enduring power of attorney, as he states he considers that, on review of the accounts submitted by the donee, the donee "was doing the right thing".
25 The other allegations made in his application, that the donee had failed to address the needs for clothing of the represented person and had not adequately maintained her property, are denied by the donee.
26 I accept the evidence of the donee in relation to both these matters, and consider that the position in relation to the need for clothing by the represented person, as initially presented by the applicant, was inaccurate. The alleged delay on the part of the donee to attend to these needs was not a concern of staff at the hospital as suggested, but had, in fact, been his perception of the situation.
27 The other issue which was said to have prompted these applications was that the applicant found a copy of a will in a drawer in the represented person's house following her admission to hospital, a copy of which is before the Tribunal, and that this caused him to have doubts about whether he could trust the donee.
28 Any issues which may arise in relation to any will of the represented person are not matters for the Tribunal. The contents of the will are now known to the applicant and are consistent with the trust placed in the donee to manage her financial affairs during her lifetime under the enduring power of attorney.
29 The applicant raises no other issues of substance in relation to the management of the affairs of the represented person pursuant to the enduring power of attorney.
30 In the face of an enduring power of attorney operating effectively to meet the existing needs of the represented person for the management of her estate, there is no need for the appointment of an administrator.
31 The application for the appointment of an administrator is dismissed.
(Page 8)
32 The donee has not registered the power with the Department of Land Information, and if there is need to sell the property of the represented person - for example, in the event that she is no longer making regular trips to visit the property - then this will be necessary. The donee should take steps to register the power without delay.
33 In respect of the application for the appointment of a guardian, the applicant states that the need for a guardian is that the represented person is terminally ill, and he needs to make decisions about her care in the near future, including whether she should be moved to another hospital in the metropolitan area for palliative care.
34 The donee states that there is no need for a guardian, but if one were needed, she proposes herself in the role, as consistent with the past wishes of the represented person when the represented person chose her to manage her financial affairs and said she did not want contact with the applicant.
35 The advocacy of the Public Advocate representative is that there is no need for the appointment of a guardian, as the represented person's need for someone to consent on her behalf to medical treatment is met, as the applicant has authority, as her nearest relative, to consent to treatment under s 119(3)(d) of the GA Act.
36 It is submitted that since her diagnosis, the applicant now has contact with the represented person, who has made no objection to that contact. She has, in fact, expressed the wish to see more of her family. The applicant is currently in contact with the hospital where the represented person is a patient, and her doctors are consulting him about her health issues. The Public Advocate submits that, in these circumstances, a less restrictive alternative to the making of a guardianship order exists.
37 The Tribunal determines that there is a need for the appointment of a guardian as there is some uncertainty whether s 119 of the GA Act, in the current circumstances, can operate as a less restrictive alternative and provide authority for the applicant to consent to treatment and care of the represented person. In the present circumstances of the represented person, it is not in her best interests that there be any ambiguity about this matter.
38 Section 119 of the GA Act provides:
"119. Medical and dental treatment
- (1) If in the opinion of a practitioner a person presented to him for treatment -
(a) is in need of urgent treatment;
(b) is incapable of consenting to the proposed treatment; and
(c) is at the time of presentation a person for whom a guardian could be appointed under this Act,
the practitioner may provide the treatment if the person referred to in subsection (3) consents to it.
(1a) A practitioner may provide treatment under subsection (1) without the consent of the person referred to in subsection (3) if in the opinion of the practitioner it is not practicable to obtain that consent.
(2) If in the opinion of a practitioner a person presented to him for treatment
(a) is in need of treatment that is not urgent treatment;
(b) is incapable of consenting to the proposed treatment; and
(c) is at the time of presentation a person for whom a guardian could be appointed under this Act,
the practitioner may provide the treatment if the person referred to in subsection (3) consents to it.
- (3) For the purposes of subsections (1) and (2), the person who may consent to treatment is the first in order of priority of the following persons
(a) a guardian of the person needing the treatment;
(b) the spouse or de facto partner of the person needing the treatment;
(c) a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so;
- (d) a person who is the nearest relative (other than the spouse or de facto partner) of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment;
(e) any other person who maintains a close personal relationship with the person needing treatment; or
(f) a person prescribed in the regulations.
- (3a) For the purposes of subsection (3) a person is to be regarded as maintaining a close personal relationship with the person needing the treatment if the relationship is maintained through frequent personal contact and a personal interest in the welfare of the person needing the treatment."
39 As can be seen, for a person to fulfil the requirements of s 119(3)(d) of the GA Act to give consent on behalf of an incapable patient, that person must maintain a close personal relationship with the person needing treatment. This is further defined in s 119(3a) as "being maintained through frequent personal contact and an interest in the welfare of the person needing treatment".
40 The applicant now maintains contact with those caring for the represented person; he is interested in her welfare and now sees her every six weeks, as his health and distance to the hospital permit. He wishes to have her admitted to a palliative care facility in Perth to enable more frequent contact with other members of his family.
41 There is conflict in the evidence from the applicant, the donee and other family members about the frequency of and extent of the contact each maintained with the represented person. From correspondence on the file, it appears the represented person was refusing contact with the applicant for some period.
42 Staff at the hospital where she is currently a patient initially limited telephone contact from him at her request, and solicitors acting on her behalf asked that contact by him be made through their office. The applicant believes that this action was initiated by the donee.
43 In these circumstances, whether he has "maintained" a close personal relationship with the represented person is unclear.
(Page 11)
44 The donee left the hearing of the original applications for the appointment of a guardian and administrator with the understanding that it was she who had authority to consent to health care on behalf of the represented person, pursuant to s 119(3)(c), as an unpaid carer of the represented person.
45 As the represented person is now in hospital on a permanent basis, noone provides or arranges domestic services for her without payment, so that s 119(3)(c) cannot apply.
46 In relation to the wishes of the represented person expressed through her actions when she executed the enduring power of attorney, it is clear that she chose the donee to manage her financial affairs.
47 It is possible to conclude, on the medical evidence before me, that this resulted from her beliefs about her stepson. There is evidence that the relationship between the applicant and the represented person had been one of long standing, with regular, if not frequent, contact with the applicant and his family and the represented person prior to that time. There is some evidence that the beliefs she expressed in 2004 may have been a result of her mental state at the time. It is not possible or necessary to come to a conclusion on this point.
48 In any event, authority under the enduring power of attorney is limited to that which an attorney might lawfully do for the donor. As donee of the enduring power of attorney, the donee does not have authority to make health care decisions on behalf of the represented person, and she has not sought to play this role in the past, having had no contact with the represented person's doctors. The donee has had limited direct contact with the represented person since her admission to hospital, but it is accepted that she remains concerned for the represented person's welfare.
49 The represented person presently has no objection to, but appears to welcome, the involvement of the applicant in her life.
50 Given the background of conflict between the applicant and the donee, who was formerly recognised as the person who could give consent, and the recent diagnosis of the represented person with a terminal illness which may bring with it potentially challenging consent issues in the near future, there is a need for certainty, both for the represented person and for health care providers, as to who has authority to consent to health care, including palliative care, on her behalf.
(Page 12)
51 Given the present involvement of the applicant in the care decisions of the represented person, his status as her nearest relative, and his recognition in the past of her need for specialist assessment and care, it is appropriate that he be appointed the guardian in relation to health care matters.
Orders
52 The order made on 24 October 2006:
1. Dismissed the application for the appointment of an administrator.
2. Appointed the applicant as limited guardian to consent to treatment and health care of the represented person with review of the order by 24 October 2011.
I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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