JED - [2013] WASAT 193

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JED [2013] WASAT 193

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 2 OCTOBER 2013

DELIVERED : 2 OCTOBER 2013

PUBLISHED : 27 NOVEMBER 2013

FILE NO/S: GAA 2239 of 2013
GAA 2321 of 2013

BETWEEN: JED
Represented person

Catchwords:

Guardianship Enduring power of guardianship Wishes of represented person Best interests Conflict between represented person's daughters Conflict interferes in decisionmaking about contact Independent guardian appointed to make contact decisions Enduring guardian to make other personal decisions for represented person

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 110N(1)(c), s 113, Sch 1 Pt B

Result:

A guardian is appointed

Summary of Tribunal's decision:

An elderly man diagnosed with dementia has two daughters, one of whom made the necessary personal decisions for him under the authority of an enduring power of guardianship. The other daughter, from whom he had been estranged, wanted to reestablish a relationship with him before he lost contact with reality as his dementia progressed.
The daughters had not had meaningful contact with each other since the death of their mother many years ago. They were highly mistrustful of each other's motives.
The daughter who was the enduring guardian would not allow the other daughter to have contact with their father on the basis that this had been and continued to be his wish.
The Tribunal decided that the enduring guardian did not give sufficient weight to the man's altered mental state in deciding to what extent she should continue to accede to his wish in the making of a best interest decision under the enduring power of guardianship and appointed an independent guardian to make decisions about contact.

Category: B

Representation:

Counsel:

Represented person : N/A

Solicitors:

Represented person : N/A

Case(s) referred to in decision(s):

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 22 August 2013, I made the following orders under the Guardianship and Administration Act 1990 (WA) (GA Act). I appointed the Public Advocate as the limited guardian of JED (represented person), an 86 year old man diagnosed with dementia, with the following function: to determine what contact, if any, he should have with others and the extent of that contact. I also made an order that the terms of the enduring power of guardianship dated 17 December 2012, by which the represented person appointed his daughter, LDT, as enduring guardian and his soninlaw as substituted enduring guardian, are varied such that the authority of the enduring guardian to determine what contact, if any, the represented person should have with others is suspended during any period that the Public Advocate is appointed guardian of the represented person for that purpose. I made the guardianship order reviewable by 22 August 2014.
I delivered oral reasons on 2 October 2013. The following reasons are taken from the transcript, with editing, for purposes of correcting minor errors and to achieve clarity. The names of the parties have been anonymised as required by the confidentiality provisions of the GA Act (s 113 and Sch 1 Pt B).

The applications

On 21 June 2013, SA, another daughter of the represented person, made an application for the appointment of a guardian for the represented person and an application under s 110N(1)(c) of the GA Act, seeking an order for revocation or an order varying the terms of the enduring power of guardianship made on 17 December 2012.
In a report dated 15 March 2013, the represented person's general practitioner of 10 years, stated:
Patient made an enduring power of guardianship on 17 December 2012 in consultation with me and daughter [LDT]. At that time he had testamentary capacity. He has deteriorated since.
The general practitioner attested to this view in a statutory declaration made on 17 December 2012.
In the application that she made, the daughter SA states that she has been estranged from the represented person for some time due to personal reasons. She states that her sister, LDT, did not inform her of the represented person’s diagnosis of dementia and that she has been stopped by LDT from seeing him. SA states that she also cannot access any of the represented person’s medical history. She states that earlier this year she had some access to the represented person and this was time, as she puts it, 'pleasantly spent' with the represented person asking to see her again.
SA states the concern that she and her brother cannot freely access the represented person before, 'he slips into the next stage of the disease'. SA alleges that LDT is 'in a position that allows freedom of decision' freedom of the represented person's decision 'to be heavily influenced and controlled'. SA proposes that orders be made appointing the Public Advocate as the represented person's guardian to enable contact for her and her brother and for the free flow of communication in respect of the represented person's medical and living arrangements. She proposes that the enduring power of guardianship be relevantly revoked or varied.

The relevant legislation

The applications made by SA fall for consideration under the provisions of the GA Act. A number of steps need to be followed to get to a point where orders might be made. These steps involve the making of findings and are bound with a set of principles contained in s 4 of the GA Act, which the Tribunal must observe. The principles are as follows:
The primary objective of the Tribunal, in the making of determinations is in the best interests of the represented person.
A principle of the GA Act is the presumption of capacity which means that, the starting point for any person for whom an application is made is that they are able to make their own decisions and manage their own affairs.
For guardians to be appointed, consideration must first be given to whether there is a need for orders or whether there are other ways in which the decisions that need to be made for the represented person in this instance, can be made in a less restrictive manner than the making of an order. If an order is made, the Tribunal must make that order within the limits set down by the represented person's needs and should only make a plenary guardianship order if a limited order is not sufficient to meet those needs. The wishes of the represented person must be taken into account when making a decision in these matters but the best interests of the represented person is the primary and overarching principle.
As far as the question of capacity is concerned, there are two relevant provisions in the GA Act. The one involving guardianship states that, before consideration can be given to the appointment of a guardian, the Tribunal must first be satisfied of one of three things: either that the represented person is incapable of looking after his own health and safety; or that he is unable to make reasonable judgments in matters relating to his person; or that he is in need of oversight, care and control in the interests of his own health and safety or for the protection of others.

The represented person's capacity

In respect to the question of the represented person's capacity, the Tribunal has the benefit of a number of reports. The reports are as follows: a report of a consultant physician dated 5 August 2011, addressed to the represented person’s general practitioner; an Aged Care Assessment Team (ACAT) assessment dated 12 November 2012; a report of the general practitioner dated 13 March 2013; and a report from the acting centre operations manager of a support service dated 26 March 2013.
I will briefly state what those reports reveal.
The consultant physician's report dated 5 October 2011 relevantly states as follows:
Your patient [represented person] has Alzheimer's disease. It has been occurring for perhaps 18 months. He was meant to have seen me about a year ago to provide an opinion about his driving but he never turned up. As a consequence of his cognitive decline there have been a number of functional concerns. These include medication compliance, failing domestic skills and the fact that he doesn't cook anymore and his driving. Fortunately the car has been removed and is on loan to his granddaughter. His daughter [LDT] reassures me that dad will not drive again.
Enduring Power of Attorney was also drafted several months ago but at the last minute he got nervous and suspicious and had the documents destroyed. There have been some problems with payment of utilities. His daughter [LDT] has managed to get some of the bills redirected to her place so they can be addressed appropriately. A number of services have started recently to help out. This includes home help, some meal preparation and also medication prompting. He is said to be quite active and could walk a number of kilometres each day with his dog. He loves his red wine but the exact quantity remains unclear. It doesn't sound too excessive, perhaps 23 standards per day. Recently he has taken up smoking again. This is a disturbing development.
The ACAT assessment of 12 November 2012 relevantly states as follows:
[The represented person] is a gentleman of 85 living alone in his own home. He has a supportive daughter [LDT]. He has a diagnosis of Alzheimer's disease and is known to [name deleted], consultant physician at [name of hospital deleted].
Due to the progression of dementia [the represented person] requires assistance with daily domestic tasks, money management, transport, medications, emotional and social support. He would benefit from assistance with personal care to ensure this task continues to be attended to appropriately. [The represented person] has had a fall in the past and could be a falls risk as he becomes physically more frail.
He goes to the local shops and takes his dog out for a walk. He is familiar with this area and in a routine but would benefit from supervision in a new environment to maintain safety. [LDT] monitors his dietary intake as well as she can but [the represented person] reportedly prefers eating sweet foods only, so would not have a nutritious diet if left alone. He has lost weight and is a slim build.
[LDT] has expressed concern about [the represented person] wandering overnight and [he] has left doors unlocked which causes safety concerns. [The represented person] does not like to feel he is being told how to live his life and can be suspicious of people's intentions, however, responds well to one on one attention and explanation. He is keen to remain living at home but agrees that he will require more support and services to achieve this aim safely. Would easily be cared for in lowlevel permanent residential and lowlevel respite in a secure environment.
Under the ACAT assessment, the represented person was approved for low level permanent residential care and low level respite secure care and approved for an Extended Aged Care at Home Dementia (EACHD) package in the community. One other aspect of the ACAT assessment I want to put into the record is that, at the time of the ACAT assessment, there was a mini-mental state examination score for the represented person of 20 over 30 and an assessment which read as follows:
[The represented person] requires regular reminding and prompting with daily activities of living. He does not like to be told how he should be living and can be verbally frustrated at times. Confusion fluctuates. Disturbed sleep pattern on occasions.
The represented person was said to suffer from regular shortterm memory problems and disorientation to time, place and other people, and he occasionally displayed some physical aggression, wandering, disturbed sleep, insomnia and confusion.
I refer now to the report to the represented person's general practitioner of 10 years. In his report of 13 March 2013, he states that the represented person suffers from Alzheimer's disease, which is a progressive condition, and that the represented person will continue to deteriorate cognitively.
And, finally, in respect to the report of the operations manager of the care provider dated 26 March 2013, in response to the question of represented person's mental state, the manager states as follows:
[The represented person] was confused and disoriented. Able to follow simple instructions. Conversed spontaneously and appropriately. Visitor very caring.
It is common ground that the represented person has dementia and that the dementia is a progressive illness. LDT submitted that the represented person is in and out of capacity, but ultimately, it was accepted by the parties that for the purposes of the applications, the represented person does not have capacity. To reinforce this view, well into the hearing, LDT advised that the represented person has recently declined to the extent that it is now considered that it is becoming too great a risk to keep him in his home and that lowlevel hostel care is required.
I am satisfied on the evidence that the represented person is a person for whom a guardianship order could be made. The consultant physician stated in October 2011, that the represented person has Alzheimer's disease and that it likely emerged 18 months earlier. The illness has progressed inexorably. The represented person has significant short-term memory problems and has periods of confusion. He has become disoriented. He requires supervision, prompting and monitoring. He is unable to look after his own health and safety and is in need of oversight and care.
I am satisfied that the represented person can no longer make reasonable judgments about significant decisions in his life because his memory problems and confusion mean that he cannot adequately store new information presented to him and he cannot use his memory of past decisions and experiences to accurately inform him in new decisionmaking.

The evidence and submissions

The critical question before the Tribunal is whether there is a need for a guardianship order or whether the existing enduring power of guardianship can be left to operate.
Counsel for LDT is right when he submits that it is the best interests of the represented person that is paramount, not the interests of his daughters. Both SA and LDT gave oral evidence at the hearing and were crossexamined by opposing counsel. From that evidence, I can summarise as follows.
In respect to SA, she states that she has a simple desire to spend time with her father as he nears the end of his life and is overtaken by the progressive dementia.
Prior to November 2012, SA had not seen her father for many years. She had pressures in her own life, a daughter with an acquired brain injury, and had assisted her brother who has a mental illness. She says that the represented person tended to play one child against the other, and given her personal difficulties, she wanted to remove herself from that situation. She does not characterise this action as an estrangement. She says that there was some phone contact over those years.
SA says that in November and December 2012, and in January 2013, she had limited contact with the represented person at his home after making contact and negotiating with LDT and that this time was, as mentioned earlier in these reasons, 'pleasantly spent'. The represented person has shortterm memory problems, but SA says that they were able to talk about the past. She accepts that at first he did not recognise her. She says that her father invited her to visit again.
SA states that LDT was obstructive which made things difficult for her. Reference was made to a note left in the house on the final visit on 22 January 2013 along the lines of, 'Do not let [SA] in the house'. The visits stopped after she received a letter from LDT's lawyer in early February 2013, and that letter, which is dated 1 February 2013, reads as follows:
We act and are instructed by [LDT] in relation to matters concerning her father, [the represented person]. [LDT] holds her father's Enduring Power of Guardianship.
As per the instructions of [LDT], you are required to cease and desist from communicating with her father, in any way, that being either in person, by correspondence, by telephone, or by any other means, for example, a third party.
[LDT]'s authority enables her to decide who [the represented person] associates with and it has been deemed that your contact with him is not desirable given his current health status.
We require your written agreement not to contact [the represented person] under any circumstances. This agreement is to be conveyed to us within seven (7) days of delivery of this letter.
If you refuse to give the written undertaking as requested and persist in contacting [the represented person], our client, on behalf of her father, will apply for a Restraining Order through the Magistrates Court.
Any further contact is to be directed through [the law firm].
SA says that she has not seen her father since that time. She states that she accepts that LDT is the primary carer for the represented person and has no wish to have a decisionmaking role. She just wants to spend time with him.
In respect to the evidence of LDT, she states that she and SA have been estranged since the death of their mother nearly 30 years ago. She has had no support from SA in any matter to do with the represented person's care. In her evidence about the contact SA had with the represented person in late 2012 and early January 2013, LDT referred to what she initially called a 'diary', but later accepted it as being more in the form of notes of particular issues that arose, those notes being a combination of some made contemporaneously and some added later.
LDT states that when SA made contact with her in November 2012, SA at first said that she did not want contact with the represented person because of past issues. She said that SA had a change of heart and demanded that she be able to see the represented person and that she had a right to do so. LDT states that the represented person has consistently expressed, when capable, and since the diagnosis of dementia, that he does not want to see SA and has been apprehensive and distressed at the prospect of contact and would not settle after SA had visited.
According to LDT, the represented person has been concerned that SA will make a claim on his estate, in particular, his property, which at one point he wanted to gift to LDT, which she says she refused. LDT submits that the represented person's nervousness and suspicion around what will happen to his property is probably part of the dementia, and that this is likely what happened when the represented person destroyed the enduring power of attorney appointing her, mentioned in the consultant physician's report of October 2011. [It should be said that the represented person soon thereafter made an enduring power of attorney in favour of LDT].
LDT made reference to the statutory declaration purportedly made by the represented person on 13 March 2013. She says that she encouraged the represented person to express his feelings in writing and this is what the statutory declaration reflects. LDT says that she assisted the represented person with some spelling, but otherwise it is his writing. The statutory declaration states as follows.
I do not want [SA] contacting me now or ever again. I want [SA] to leave me alone and in peace. She has caused me unwanted stress and anxiety.
LDT states that things have been working fine between her and the represented person with the support she provides. She has, over time, been increasing the monitoring of the represented person's movements, culminating in the instalment of an alarm system. This, she says, has revealed that some person has been accessing the represented person's property early in the morning. LDT states that the represented person is fearful of his son, who he says takes his money.

LDT states that with her authority as enduring guardian, she would not permit SA to visit the represented person in his home. When he moves into an aged care facility, however, which might be soon, she would allow SA to visit, but only when the represented person was gravely ill and only to allow SA to say goodbye to him. She would otherwise not encourage or allow visits. She would determine when the time was right for SA to visit. It is LDT's submission that it is in the represented person's best interest that things remain as they are.
By not allowing contact with SA, the represented person, in LDT's view, will not be placed under any stress. The situation for the represented person, she says, was stable until SA began to ask for contact in late 2012. LDT says that her decision not to allow contact continues to reflect the wishes of the represented person.
Late in the hearing, counsel for LDT submitted that LDT had discussed with him the prospect of walking away from the situation given the effect on her of the applications made by SA. This point was not pursued.
With reference to the Public Advocate's evidence, RB, the representative of the Public Advocate, provided a report and gave oral evidence. I want to put on the record some of what RB said, in particular, that which refers to her contact with the represented person, and I quote from pages 5, 6 and 7 of her report dated 15 August 2013:
The first home visit with [the represented person] occurred on Tuesday, 2 April 2013. Present at the visit was [LDT]. During the visit, a support worker arrived and began ironing in the same room as the visit was being conducted, but did not participate.
The writer had previously advised [LDT] that a visit with [the represented person] alone would be preferred, at least for some of the visit, to best ascertain his views and wishes. [LDT] advised that she decided to participate in the visit as [the represented person] expressed to her the wish that she do so.
[The represented person] indicated a willingness to participate in conversation during the visit and was cheerful throughout, though his short-term memory loss was readily and consistently apparent, evidenced by his regularly expressed fear that someone might take his home from him, particularly as he understands that in Australian law, if a person moves out of their home and someone else moves in, after a set period of time the home would become theirs.
Despite being reassured about this, that this would not occur, [the represented person] regularly repeated his fear that someone else might gain ownership of his house or these applications could result in his home being taken. The last thing he asked at the conclusion of the visit was whether someone could take ownership of his home from him.
Throughout the visit, whenever [the represented person] wasn't able to provide answers to questions put, he looked to [LDT] and relied on her heavily to fill in the knowledge gaps and to provide the information sought.
During the visit, the applications made to the tribunal were explained to the [represented person]. When asked if he understood that in making the Enduring Power of Guardianship, he had given [LDT] the authority to determine with whom he might have contact, the [represented person] responded by saying that he did not know the detail of the authority, but wants [LDT] to be able to make all decisions for him.
When asked whether he wishes to have contact with [SA], the represented person stated emphatically that he did not. The question was put to the [represented person] several times during the visit, and without wavering, he consistently said that he does not want to re-engage with [SA] or her spouse, whose name he could not recall without prompting.
[The represented person] also stated that he does not want to see [his son], who he said has not visited for 11-12 years. He added that his son is always 'on the scrounge' and that his son wore out affection 'early in the piece'.
[The represented person] explained that [LDT] is the only one of his children who has helped him over the years and that he parted company with [SA] many years ago. When asked the reason for the rift between himself and [SA], [the represented person] said that he can’t recall the reason, it has been wiped from the memory pad, and there's no point in crying over spilt milk. He added that he fears that [SA] and her spouse want his house and added that he had 'crossed swords' with her spouse in the past.
[The represented person] could not recall the last time he saw [SA], and when specifically asked whether he had seen her during the past year he said no. [LDT] reminded [the represented person] that apart from the recent four visits with [SA] commencing late 2012, he last saw her at his seventieth birthday celebration.
[The represented person] said that he has a happy life at home with his little dog, enjoys taking the dog for walks and lives close to the shops and his doctor.
When asked whether he has home support, [the represented person] said no and that he does his cooking and cleaning himself. [LDT] reminded [the represented person] that he has support at home from carers, and when the name [name deleted] was mentioned he remembered that she visits.
When it was mentioned to [the represented person] that it was proposed that the Public Advocate be appointed as his guardian to make decisions about who visits him, he was adamant that he does not want the Public Advocate to be able to do that, and he wants [LDT] to be his decisionmaker.
In summary, the [represented person's] position with regard to contact with [SA] was consistent to the point of being emphatic, even though he could not clearly recall the reasoning for this decision.
The second home visit occurred on 30 July 2013. Upon arrival at the [represented person's] home, he was standing inside the screen door at his front door and with the screen door closed and the Public Advocate's representative outside the door, he read out a copy of a Statutory Declaration dated 13 March 2013, a document previously provided to the Public Advocate by the Tribunal where he states in this document:
I do not want [SA] contacting me now or ever again. I want [SA] to leave me alone in peace. She has caused me unwanted stress and anxiety.
When asked for the date of the document, the [represented person] turned to [LDT], who was standing behind him, and asked her for the date. [LDT] referred to the place in the document where the date was written. The [represented person] then read out the date. When a copy of the document was requested the [represented person] opened the screen door sufficiently to pass that document with [LDT] saying that she thinks the tribunal has a copy.
With the door ajar the [represented person] was asked whether an invitation was being made for the Public Advocate's representative to enter the home. [LDT] stated that there was no point, but it is the [represented person's] decision. It was explained to the [represented person] by the Public Advocate's representative that it would be very useful to have a chat. The [represented person's] response was that he probably does not want to have a chat and he does not want to see [SA].
The conclusion at this point was given the resistance to an interview and having ascertained the [represented person's] wishes during the first home visit pursuing the interview would not be helpful to the process.
When asked if he would be attending the hearing the [represented person] said no, as he could not get there. [LDT] said that he could get to the hearing but it is his decision as to whether to attend or not. The [represented person] then stated he did not want to attend.
From the information gathered during the home visits, the Public Advocate’s view is that [the represented person] relies heavily on [LDT] to fill knowledge gaps when his memory fails him, and as such, he is in a position to be influenced by how [LDT] presents information to him.
In her oral evidence, RB states that the represented person is a very friendly person and appears to enjoy the company of others. She says that he continues to harbour a fear that he will lose his property, but he can be easily deflected from these thoughts. RB submits that the conflict between SA and LDT must spill over into the represented person and this will not stop, even when he enters an aged care facility.
Whilst the represented person consistently says he does not want to see SA, RB submits that he no longer understands the reason for his view and further, that such a decision will be made forever. RB proposes that a guardian be appointed to determine the contact the represented person should have with SA.

The decision of the Tribunal

When I consider all the evidence I find as follows.
LDT is the primary carer for the represented person and has ably supported him in his increasing care needs as his dementia has progressed. She has done this without the support of SA. The decision by LDT to allow the represented person to live in his home for as long as possible, with appropriate support, is a decision made in his best interests.
I accept that LDT will also make a decision in the represented person’s best interests when she decides when he should be accommodated in an aged care facility because of increasing care needs, and further, that she should continue to make his medical treatment decisions.
I accept that SA has a genuine desire to see the represented person before he loses all contact with reality as his dementia progresses. I accept that when SA learned that the represented person had been diagnosed with dementia, that she sincerely wanted to re-establish what relationship she could with him.
Notwithstanding the support and care provided to the represented person by LDT, the intense animosity between her and SA means that they cannot sensibly discuss the question of whether the represented person having contact with SA is in his best interests. I accept that the represented person has said that he does not want to see SA, but I give limited weight to this for the following reasons.
LTD was not given the opportunity to speak with RB, the Public Advocate's representative, alone, and during the interview with her on 2 April 2013, he relied heavily on LDT to fill in knowledge gaps and provide the information sought. In the interview with RB, the represented person could not recall or articulate the reason for not wanting to see SA, other than to say he fears that SA and her spouse want his property.
I am satisfied that it is more likely than not, that the represented person’s increased suspicion and paranoia are symptoms of his progressive dementia and do not have a basis in fact. I find that LDT, because of her conflict with SA, does not give sufficient weight to the represented person’s altered mental state in deciding to what extent she should continue to accede to his wish in the making of a best interest decision under the enduring power of guardianship. I accept the submission of RB from the Public Advocate's office when she states (page 8 of her report):
…
What is not known is whether [the represented person] would continue to wish to have no contact with [SA] if he could currently create reasoning for his decision, including giving consideration of his age and the fact that he may never see [SA] again[.]
It is for all these reasons that I find that it is in the represented person's current best interest to have a person independent of LDT and SA make the decision whether the represented person would benefit from having contact with SA and others, and if so, the extent of that contact. I therefore appoint the Public Advocate as the represented person's limited guardian to make decisions about contact, and whilst that order is in place, have suspended the operation of the enduring power of guardianship as it relates to the function given to the Public Advocate.
In all other respects, the enduring power of guardianship can operate for the decision-making needs of the represented person. The order that I have made is to be reviewed in 12 months.

I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER