JH - [2016] WASAT 20 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JH [2016] WASAT 20

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 15 FEBRUARY 2016

DELIVERED : 23 FEBRUARY 2016

FILE NO/S: GAA 214 of 2016

MATTER :JH
Represented Person

Catchwords:

Guardianship and administration - Guardianship - Enduring power of attorney - Family conflict - Suitability to be appointed as guardian - Guardianship functions - Plenary order proposed - Limited order sufficient to meet needs of person - Public Advocate proposed as guardian - Public Advocate only to be appointed if no other person suitable and willing to act Son and daughter appointed joint limited guardians for accommodation and treatment decisions - Person responsible provisions of the Guardianship and Administration Act 1990 (WA) concerning treatment decisions unworkable in the circumstances - Public Advocate appointed as limited guardian to make decisions about contact

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 44, s 68, s 110ZD(3)(b), 110ZD(3)(c), s 110ZD(4)(b), Pt 9C

Result:

Guardian appointed

Summary of Tribunal's decision:

Mrs H was an elderly woman who had been diagnosed with dementia. She had been cared for by a son, RH, and his wife for the past two years in her own home. A daughter, JH, had also provided Mrs H with significant assistance with medical and other matters.
Because of her progressive cognitive decline, the care for Mrs H in her own home had become increasingly difficult and unsafe, and the family agreed she needed to move to a nursing home.
JH and RH made an application for a guardianship order. RH was the attorney for Mrs H (JH his substitute) under an enduring power of attorney made by Mrs H in 2006.
There was significant conflict within the family which was distressing for Mrs H. RH and JH were in agreement about things to do with Mrs H but they were opposed by Mrs H's other daughters, MH and RL. The conflict, particularly between JH and MH and RL, preceded the guardianship issue.
Whilst the children of Mrs H were in agreement about the need for her to move to a nursing home, they could not agree what area or suburb, Mrs H should live.
MH and RL also had concerns that if RH and JH were appointed guardians, their access to Mrs H would be restricted. JH had alleged that MH and RL had previously taken Mrs H from her home for extended periods of contact and this had been detrimental to Mrs H's wellbeing. JH feared this would happen again.
The Tribunal appointed RH and JH as joint limited guardians for Mrs H to decide her accommodation and treatment. They had been most involved in recent years in her care and medical needs and their appointment complemented the financial authority given by Mrs H to RH under the enduring power of attorney.
The Public Advocate was appointed limited guardian for Mrs H to decide contact arrangements, as it was found that the family likely could not manage that issue in the current circumstances.

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

Public Trustee v Blackwood (1998) 8 Tas R 256

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The reasons below were given orally on 23 February 2016. The matter had been heard on 15 February 2016.
Except for minor amendments mainly for the purposes of style and grammar, including the anonymising of names as required by the Guardianship and Administration Act 1990 (WA), the decision and reasons are those that were handed down on 23 February 2016.

Background

The application before the Tribunal is an application for a guardianship order made by two children of Mrs H, JH (daughter) and RH (son).
RH is Mrs H's attorney under an enduring power of attorney dated 25 September 2006. JH is the substitute attorney.
Mrs H has two other children who are directly involved in the application, MH and RL.
The application was heard on 15 February 2016 and adjourned to enable the parties to file final submissions with the Tribunal.
Submissions were received from JH and RH, and jointly from MH and RL through their legal representative.

Relevant legislation

The relevant legislation is the Guardianship and Administration Act 1990 (GA Act).
The primary concern of the Tribunal is the best interests of Mrs H: s 4(2) of the GA Act.
Mrs H is presumed to be capable of looking after her own health and safety, and of making reasonable judgments in respect of matters relating to her person until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
A guardianship order should not be made if the needs of Mrs H can be met by other means less restrictive of her freedom of decision and action: s 4(4) of the GA Act.
A plenary guardian should not be appointed if the needs of Mrs H can be met by the making of a limited guardianship order: s 4(5) of the GA Act.
The Tribunal should as far as possible seek to ascertain Mrs H's views and wishes: s 4(7) of the GA Act.
Section 44 of the GA Act guides the Tribunal in the decision as to who to appoint as guardian for Mrs H.

Mrs H's capacity

Before the Tribunal can exercise its discretion to appoint a guardian for Mrs H, it must first find either that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others: s 43(1)(b) of the GA Act.
The Tribunal has the benefit of a report from Mrs H's general practitioner, Dr T. Dr T has been Mrs H's general practitioner for more than 15 years and at the time of writing the report had last seen her on 19 January 2016.
The assessment of Dr T is that Mrs H suffers from a cognitive impairment consistent with a progressive dementia. She suffers from shortterm memory loss and has become increasingly confused.
Dr T assesses Mrs H as being incapable of making reasonable decisions in respect to her personal health care, living situation and financial affairs. She is also assessed as now being incapable of executing an enduring power of attorney.
The evidence of RH and JH is that it is becoming increasingly unsafe for Mrs H to live in her own home despite the care that she receives. Mrs H is prone to wandering from her home and not being able to find her way back without assistance. She is unable to articulate a rational reason for leaving the home.
It is common ground that Mrs H is a person for whom a guardianship order can be made and that she is in need of a guardian.
I do not accept the contention of MH and RL that there is insufficient evidence that Mrs H is unable to make reasonable judgements in respect of her treatment. There is no medical evidence before the Tribunal that expresses a contrary opinion to that of Mrs H's longstanding general practitioner, Dr T. It is not correct for MH and RL to say that a plenary guardianship order could be made but that Mrs H remains lawfully able to make her own treatment decisions currently. The making of a plenary order would be recognition that Mrs H is unable to make any of her personal decisions.
I find that Mrs H satisfies the requirements of s 43(1) (b) of the GA Act. She is incapable of looking after her own health and safety and is in need of oversight and care. She has been receiving care in the home from RH and his wife for the last two years and without that support would not have been able to live safely on her own. As a consequence of Mrs H's increasing confusion and shortterm memory loss, I am satisfied that she is unable to make reasonable judgments about significant decisions that need to be made in her life.

The need for a guardian

The questions for the Tribunal are whether Mrs H is in need of a guardian and, if so, what authorities or functions should be given to the guardian, and who should be appointed.
It is common ground that because of the increase in Mrs H's care needs, she can no longer be supported in her home and will need to move to a nursing home.
There is a dispute as to which nursing home is best for Mrs H. MH and RL propose that Mrs H be accommodated in a nursing home in the suburb in which she currently lives. RH and JH propose that Mrs H be accommodated in a nursing home closer to where JH lives, given her evidence that she will effectively become the primary contact for Mrs H once the nursing home placement occurs.
I am satisfied on the evidence that the dispute about the nursing home is unable to be resolved and a guardian will need to be appointed to make that decision.
As regards the decisions about Mrs H's ongoing medical treatment, I am not satisfied that the 'persons responsible' provisions of the GA Act (Pt 9C), to which the submission of MH and RL refers, can apply in Mrs H's circumstances. Under s 110ZD(3)(c) of the GA Act, RH as the current primary provider of care and support to Mrs H (without remuneration), could be the person responsible to make treatment decisions for Mrs H. Once Mrs H begins to live in a nursing home then s 110ZD(3)(b) of the GA Act applies, and 'a child' of Mrs H can at that time accept the requisite authority.
The GA Act does not further define 'a child' and, in situations such as the one for Mrs H where the children are in significant conflict, the 'persons responsible' provisions largely become unworkable.
For this reason, a guardian will need to be appointed to make ongoing treatment decisions for Mrs H.
The issue of Mrs H's contact with others has been raised as an issue by JH because of her allegation that MH and RL, at Easter and Christmas 2015, removed Mrs H from her home for a period longer than recommended by Dr T and which is alleged to have been detrimental to Mrs H's wellbeing. It appears there is a concern that will happen again.
MH and RL have also raised a concern about contact and that is that, if RH and JH are appointed guardians, they will unfairly restrict contact with Mrs H.
I am satisfied that a guardian will need to be appointed to make decisions about contact arrangements.
In my view, a limited guardianship order is sufficient to meet the needs of Mrs H. The functions in the guardianship order will be to decide Mrs H's accommodation, her treatment and her contact with others. I am not convinced by the submission of MH and RL that a plenary order is required because, once placed in a nursing home, Mrs H's day-to-day needs will be met. Other than the functions I have decided should be in the guardianship order, there are no other significant personal decisions that need to be made for Mrs H.
The making of a limited guardianship order is consistent with the principle set out in s 4(5) of the GA Act.

Who should be appointed guardian?

I have decided to appoint JH and RH as Mrs H's joint limited guardians to make decisions about her accommodation and treatment, and to appoint the Public Advocate as Mrs H's limited guardian to make decisions regarding her contact with others.
The reasons for my decision to make those appointments are as follows.
It is not uncommon in the jurisdiction of the Tribunal under the GA Act that when conflict exists in families, the Public Advocate is appointed guardian for the family member who can no longer make their own personal decisions.
The most typical reason is that decisionmaking has become unviable, as the conflict itself infects the judgments made by the capable family member(s).
However, as a reading of s 44 of the GA Act shows, this cannot and should not be the default position of the Tribunal.
In deciding who should be appointed guardian, s 4 and s 44 of the GA Act must be read together.
The primary concern of the Tribunal is the best interests of Mrs H. The expression 'best interests', in the context of a protective jurisdiction such as the GA Act, reinforces the idea that the paramount concern is the overall interest of the person to whom the protection is directed: Public Trustee v Blackwood (1998) 8 Tas R 256.
Anyone has the right to propose themselves to be the person's guardian, and their suitability needs to be tested against the requirements of s 44 of the GA Act, considered in the overall context of the best interests of the person.
I accept that for the last two years the primary carers of Mrs H have been RH and JH. RH and his wife have cared for Mrs H in her home during that time. JH, amongst other things, has had a significant involvement in Mrs H's ongoing medical and health needs.
I state this as a matter of fact, not as a matter of judgment. I note, for example, that MH was providing support for Mrs H in the home from June 2012 until January 2013 prior to her moving to a rural area.
RH is Mrs H's attorney under an enduring power of attorney and there is no opposition to his appointment. This means that RH has the authority and responsibility to manage and make decisions about Mrs H's estate.
It is selfevident that the persons who make the financial and personal decisions for another person need to be compatible - that is, they need to be able to communicate and consult with each other about the decisions that need to be made, given that often a personal decision has financial implications. This is acknowledged in s 44 and s 68 of the GA Act because, in determining who will be suitable to be appointed guardian and administrator for a person, the compatibility of one with the other is a factor to be taken into account.
In accepting RH as the financial decisionmaker for Mrs H (and JH as his substitute) under the enduring power of attorney, it is not possible for MH and RL to be appointed Mrs H's guardian, given the sibling conflict, even though RH states that he is still able to have some communication with them.
It should also be noted that appointing RH as attorney and JH as his substitute is an expression of Mrs H's capable wish that they be given control over a very important part of her life (her financial affairs) when she would be no longer capable of doing so herself: s 4(7) of the GA Act.
I note the reasons given by MH and RL in their submission as to why they say it is in Mrs H's best interests that she lives in a nursing home in the suburb in which she currently lives. I note also the response from JH and RH in their respective submissions.
I prefer the evidence and submissions of JH and RH in this regard because they reflect an intimate understanding of what has happened and is happening 'on the ground' in Mrs H's life by virtue of their proximity to her and the ongoing care and support they provide. For example, JH states that Dr T does not visit aged care facilities and that Mrs H has resigned her membership of her local golf club.
I accept the submission of JH that if she is to be the primary contact for Mrs H once Mrs H is in a nursing home (and there is nothing in the evidence to suggest this will not be the case), a nursing home which is both suitable for Mrs H's needs and which is within reasonable distance of JH's home seems a sensible outcome. I have no reason to doubt that both JH and RH will choose a suitable nursing home for Mrs H and accept that they have already put considerable time and effort into that task.
The same can be said for decisions about Mrs H's ongoing medical and health care. I accept that JH has been the one most actively involved in this area of Mrs H's life, again as a matter of fact. I am satisfied that it is in Mrs H's best interests to continue to have the benefit of JH's knowledge of her medical needs and her commitment when treatment decisions need to be made. This applies as well to RH in the direct care that he has provided Mrs H for the last two years.
An ongoing issue in the family is the stated problem with communication, and, from MH and RL's position, to have effective input into the decisionmaking for Mrs H.
I accept this is a problem and that, as Dr T states in her report, this causes Mrs H a good deal of distress. I am not satisfied, however, that by appointing the Public Advocate for decisions concerning accommodation and treatment (decisions for which I have already found RH and JH to have the requisite skill and commitment (s 44(2)(d) of the GA Act)), the conflict will be in any way mitigated and Mrs H's distress alleviated. Unfortunately, the conflict is what it is; there is no magic bullet to its resolution.
Despite this, MH and RL should be able to express their views, as they have already done before the Tribunal, regarding what they say is best for Mrs H. In appointing RH and JL as limited guardians for accommodation and treatment, I have the expectation that they will consult with MH and RL on important matters within their decisionmaking authority, and this includes any serious significant medical intervention that Mrs H needs to undergo.
I expect that the onus for this communication will likely fall to RH as joint guardian, given that he says he has some ongoing relationship with MH and RL. In the circumstances, I am satisfied that RH will undertake that task and will do his best to ensure that appropriate information flows to Mrs H's other children.
That, I think, is the best that can be expected in the difficult circumstances that have arisen since Mrs H has become increasingly incapable of mediating the conflict that exists between her children.
The overriding concern of the Tribunal is that decisions will be made in Mrs H's best interests and I am satisfied that, in the functions given to RH and JH, that will occur: s 44(1)(a) of the GA Act.
The one area in which, it seems to me, is beyond the scope of the family to deal with is the contact arrangements for Mrs H. As Mrs H's dementia progresses, she will become less able to express a wish as to how contact should occur and I suspect even now she finds that difficult because of the conflict between her children.
Once Mrs H moves to a nursing home and she continues to decline as a consequence of her progressive dementia, I am not sure whether contact will continue to be the issue that it has been.
However, to ensure certainty in the decisionmaking and to enable a smooth transition to a nursing home setting, I have decided that it is in Mrs H's current best interests to appoint the Public Advocate as her guardian for contact purposes: s 44(5) of the GA Act.

Orders

On an application for the appointment of a guardian for the represented person, heard before Senior Member J Mansveld on 15 February 2016
The Tribunal declares that the represented person;
(a)is incapable of looking after her own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to her person;
(c)is in need of oversight, care or control in the interests of her own health and safety; and
(d)is in need of a guardian,

and the Tribunal orders that:
1.JLH [address deleted] and RWH [address deleted] are appointed joint limited guardians of the represented person with the following functions:
(a) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person; and
(b)To decide where and with whom the represented person is to live permanently including if necessary, any interim transitional placement.

2.The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed limited guardian of the represented person with the following function:
(a) To determine what contact, if any, the represented person should have with others, the extent of that contact, and if necessary in the making of the contact decision, to decide where the represented person is to reside temporarily.

3.This order is to be reviewed by 23 February 2017.

I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________
MR J MANSVELD, SENIOR MEMBER