JDW
[2005] WASAT 38
•7 FEBRUARY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP & ADMINISTRATION ACT 1990
CITATION: JDW [2005] WASAT 38
MEMBER: MR J MANSVELD (MEMBER)
HEARD: ON THE PAPERS
DELIVERED : 7 FEBRUARY 2005
FILE NO/S: GU 1 of 2005
AD 3 of 2005
BETWEEN: JDW
Applicant
Catchwords:
Guardianship and administration - Capacity to make decisions
Legislation:
Guardianship and Administrative Act 1990 (WA), s 4(2)(b) and s 4(2)(c), s 43
State Administrative Tribunal Act 2004 (WA), s 46
Result:
The Tribunal gives leave to the applicant to withdraw the applications for guardianship and administration
Category: B
Representation:
Counsel:
Applicant: Self Represented
Solicitors:
Applicant:
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MR J MANSVELD (MEMBER):
REASONS FOR DECISION
Background
EAW lodged applications for guardianship and administration for her husband JDW on 5 January and 4 January 2005 respectively. EAW and JDW are separated but still living under the same roof in their jointly owned home. At the time of the application JDW was a patient in Osborne Park Hospital undergoing rehabilitation after having suffered a stroke in October/November 2004. In her applications, the applicant stated her view that JDW was no longer always able to make rational decisions and that she was waiting for a high care facility to become available for him.
On 3 February 2005 EAW wrote to the Tribunal requesting that the applications for guardianship and administration be withdrawn. EAW referred to her discussions with the Registry staff of the Tribunal. File notes of the Registry describe a conversation with EAW on 19 January 2005 (not related to the withdrawal request) and with LC social worker at Osborne Park Hospital on 19 January and 28 January 2005. The latter refers to an e-mail from LC indicating that JDW had been assessed as competent. The e-mail referred to is dated 28 January 2005 and states that the hospital's Clinical Psychologist and Psycho‑Geriatrician had declared JDW competent.
Issues
Should the Tribunal give leave to EAW to withdraw the applications for guardianship and administration for JDW?
Relevant Legislation
Section 43 of the Guardianship and Administration Act 1990 (WA) provides for the appointment of a guardian if certain matters are satisfied as to a person's capacity and abilities and whether a need for a guardian has been established.
Section 64 of that Act provides for the appointment of an administrator if a person suffers from a mental disability, is unable to make reasonable judgements in respect of their estate and is in need of an administrator.
This is subject to s 4 of the Act which contains the principles to be observed by the Tribunal and which includes at s 4(2)(b) the presumption that a person has capacity until the contrary is proved to the satisfaction of the Tribunal and at s 4(2)(c) that an order shall not be made if the needs of the person can be met by other means less restrictive of the person's freedom of decision and action. The primary concern of the Tribunal shall be the best interests of the proposed represented person (s 4 (2)(a)).
Section 46 of the State Administrative Tribunal Act 1994 (WA) allows for, amongst other things, the Tribunal to give leave for an applicant to withdraw their application.
Information Before The Tribunal
The Tribunal did not consider, in the circumstances of the matter, that oral evidence was required. The Tribunal had otherwise before it‑
1.The applications for guardianship and administration lodged with the former Guardianship and Administration Board on 5 January and 4 January 2005 respectively;
2.Tribunal Registry file notes (including copies of e-mails) for the period 19 January 2005 to 28 January 2005;
3.Aged Care Assessment Team (ACAT) "Aged Care Client Record" dated 22 December 2004;
4.Psychological report which contains the findings of an assessment conducted by JYM of the Rehabilitation and Aged Care Program at Osborne Park Hospital on 10 January 2005. JYM is a Clinical Psychologist for Rehabilitation and Aged Care; and
5.Multidisciplinary Psychogeriatric Assessment (Osborne Park Older Adult Mental Health) dated 21 January 2005 conducted by Dr HM Consultant Psychiatrist and BM, Consultation Liaison Officer.
Discussion of the Evidence
By way of background, Dr HM's report states that JDW suffered from "(L) occipital CVA with ® homonymous hemianopia in October/November 2004". JDW is considered to be no longer independent in his activities of daily living. Mention is made in the report that JDW and EAW are separated but continue to live in the jointly owned home. JDW does not want to go into residential care and is deciding whether to be cared for by a long time friend, an option not favoured by EAW. Mention is made of children, in particular a daughter from his marriage to EAW who is said to be very supportive of her mother and father. JDW has a son and daughter from a previous marriage who live in Melbourne. There is nothing said about the involvement of these children in their father's personal and financial affairs.
Dr HM refers to the assessment of JYM's (Clinical Psychologist) report and submits the opinion that JDW is " … competent to decide for himself re his accommodation, sign an EPA or review his will. He has complex relationship ties and will probably require social work support to negotiate whether he will‑
•Return home with his friend/carer's support, sharing the home's facilities with his wife.
•Other alternatives such as to sell the house, split the assets and buy an alternative house".
JYM's report (to which Dr HM refers) assesses JDW as "… capable of comprehending and reasoning at a level comparable to fifty percent or more of his age peers. He exhibits mild memory impairment, and severe visual perceptual difficulties". JDW is considered to have some loss in flexibility of thinking, some loss of insight and emotional blunting.
The earlier ACAT assessment (22 December 2004) assesses JDW as requiring functional assistance in shopping, preparing meals, incontinence management, personal hygiene, mobility and the taking of medication. The recommendation is that JDW requires high-level residential care to meet his long-term care needs.
The Tribunal is satisfied that JDW is functionally dependent for his day-to day care needs. He could not live alone without care. The Tribunal is also satisfied that JDW is aware that he requires assistance with his daily care and that there are alternative care arrangements available to him about which he can decide. He is also capable of executing an Enduring Power of Attorney to assist in the management of his estate.
The Tribunal has given significant weight to the opinion of the Consultant Psychiatrist, Dr HM who had the added benefit of a Clinical Psychologist's assessment. Dr HM's report is the most recent and was conducted when JDW was ready for discharge from hospital and therefore when in-patient rehabilitation had concluded.
Findings of Fact
The Tribunal finds on the information before it that JDW is currently capable of making decisions in regard to his personal and financial affairs.
Reasons for Decision
The Tribunal is satisfied that, whatever the reasons for making the applications for guardianship and administration originally, nothing before it would currently warrant the appointment of a guardian or administrator. JDW has been assessed as recently as 21 January 2005 as being competent to decide his accommodation, care arrangements and how his estate should be managed.
Decision
The Tribunal gives leave to the applicant to withdraw the applications for guardianship and administration.
I certify that this and the preceding five pages comprise the reasons for decision of the member who heard this matter.
______________________
JACK MANSVELD
Member
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