JH - [2009] WASAT 106

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JH [2009] WASAT 106

MEMBER: MS D DEAN (MEMBER)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)

HEARD: 1 APRIL 2009

DELIVERED : 29 MAY 2009

FILE NO/S: GAA 2891 of 2008

BETWEEN: JH
Represented Person

Catchwords:

Section 84 review of guardianship and administration orders - Capacity of the represented person - Represented person with dementia - Need for an order - Best interests of the represented person - Public Trustee appointed plenary administrator - Public Advocate appointed limited guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 64, s 84, s 90(1)

Result:

Public Trustee confirmed as plenary administrator
Public Advocate confirmed as limited guardian

Category: B

Representation:

Counsel:

Represented Person : Self-represented

Solicitors:

Represented Person : Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

JH is an elderly woman with Alzheimer's disease. On 9 March 2007, the Tribunal appointed the Public Trustee plenary administrator of her estate and the Public Advocate limited guardian to make decisions as to where and with whom she should live, to consent to medical and dental treatment on her behalf and to determine what contact she should have with others. The orders were to be reviewed in two years.
The Tribunal subsequently received applications for review of the orders from family members and the nursing home where JH currently resides. JH is originally from Victoria, having moved to Western Australia in the last few years, leaving her husband and some of her adult children and extended family in Victoria. JH's family in Victoria wanted her to return to Victoria to live but her family in Western Australia were resistant to the idea.
The Tribunal confirmed the appointment of the Public Advocate as limited guardian to make decisions as to where JH was to live in the long term, her medical treatment, her contact with her ex‑husband in Victoria and gave the guardian the additional function of making decisions about the use of chemical and physical restraints.
The Public Trustee was confirmed as plenary administrator.

Background

JH is an elderly woman with memory impairment, confusion and disorientation consistent with her diagnosis of dementia of the Alzheimer's type. In 2006, in a move facilitated by her daughter DW, JH moved to Western Australia from her home in Victoria leaving her husband, the stepfather of her children, in Victoria. JH's four adult children, who live in Victoria, agreed at that point that JH should leave her husband but were not in agreement that the move to Western Australia should be a permanent one. The different views in relation to permanent accommodation for JH resulted in significant conflict between her children and prompted an application by DW on 3 January 2007 to the Tribunal for the appointment of a guardian and an administrator.
On 9 March 2007, the Tribunal appointed the Public Trustee plenary administrator of the estate of JH and the Public Advocate limited guardian to make decisions as to where and with whom JH should live, to consent to medical and dental treatment on her behalf, and to determine what contact she should have with others. The orders were to be reviewed in two years.
On 3 December 2008, ST, a social worker from the nursing home where JH is currently residing, applied for a review of the guardianship order because of a perceived need for the guardian to have the additional authority to make decisions in relation to the use of chemical and physical restraints for JH.
On 3 February 2009, DW, the daughter of JH, applied to the Tribunal for review of both the guardianship and administration orders because she wished to take on the roles of guardian and administrator. She proposed that she be appointed joint guardian with her daughter KW.
On 6 February 2009, KT and BC, daughter and son of JH, applied to the Tribunal for a review of the guardianship and administration orders and nominated themselves to be appointed as guardian and administrator.

Evidence available to the Tribunal prior to the hearing

In addition to the applications referred to above, the following documents were provided to the Tribunal prior to the hearing on 1 April 2009.
•A report from the Public Advocate outlining the decisions she had made since her appointment and with a recommendation that a guardian continues to be needed with the authority to make decisions as to where and with whom JH should ultimately reside, her medical treatment and her contact with others. The Public Advocate said that, because of the breakdown in communication between family members, in her view, there continues to be a need for a guardian independent of the family.
•A report from the Public Trustee dated 5 February 2009 outlining details in relation to his management of the estate of JH. The report describes the complexities associated with the financial settlement between JH and her estranged husband who continues to live in Victoria where the couple's assets are located.
•A report from Dr F dated 28 November 2008. Dr F has been JH's general practitioner (GP) for the last two years. In his report, Dr F says that JH has a diagnosis of dementia, being a mix of Alzheimer's and vascular dementia. This is a progressive condition. Dr F assessed JH as incapable of making reasonable judgments about any major aspect of her life including executing an enduring power of attorney (EPA).
•Other documents including testimonials in relation to KT, AC and BC, all attesting to the good character of the named person.

The hearing

Given that the orders were due for review in accordance with s 84 of the Guardianship and Administration Act 1990 (WA) (GA Act), the Tribunal dismissed the applications for review made by the various parties and advised that the written applications would be treated as submissions in relation to the review of the orders.
The hearing was attended by:
•ST, social worker at the nursing home;
•BF, guardian from the Office of the Public Advocate (OPA);
•KW, granddaughter;
•MW, granddaughter;
•AW, son‑in‑law;
•AC, daughter‑in‑law (by video);
•BC, son and eldest child (by video);
•KT, daughter (by video);
•LC, grandson (by video);
•GF, aged care hospital social worker (by video);
•EH, husband, for part of the hearing (by video); and
•MZ, case manager for EH, for part of the hearing (by video).
AW handed a letter from DW to the Tribunal at the commencement of the hearing. In her letter, DW said she would not be attending the hearing because she believes JH's 'fate has already been sealed'. She said that she believes it is in JH's best interests that she remain in her current accommodation in Western Australia and that she not be returned to Victoria.
AW informed the Tribunal that, although DW was not attending the hearing, she was still proposing herself as joint guardian with AW. The Tribunal adjourned for a short while to allow parties to contact DW and arrange for her attendance either in person or by telephone in order for the Tribunal to hear from her in relation to her proposal that she be appointed jointly as guardian and to assess her suitability to take on the role. DW chose not to attend the hearing.
As in the previous hearing, all parties agreed that JH no longer has the capacity to make reasonable judgments for herself about financial or lifestyle matters.
Guardianship
ST explained that she had applied for a review of the guardianship order because the nursing home is currently using both chemical (Respiridol) and physical restraints such as lap belts, bedrails and all‑in‑one garments to ensure JH's safety and comfort. JH has suffered significant injuries from falls and is said to be in need of physical restraint with lap belts and bedrails to restrain her and prevent further falls. Additionally, she needs an all‑in‑one garment that preserves her dignity.
The guardian said that it is generally the view of the Public Advocate that bedrails, lap belts and all‑in‑ones are for the health and safety of the person and can, therefore, be authorised under the medical treatment authority. Nevertheless, she accepts that if it is a requirement of the nursing home policy on such things that the guardian have the specific authority to make such decisions, she agrees that the authority to consent to restraint should be added to the list of decision‑making functions of the guardian.
The guardian referred to written evidence she had received from JH's doctor stating that the Respiridol medication JH is taking is prescribed to prevent agitation and restlessness and, as such, is not used as a chemical restraint. The guardian said she feels comfortable providing consent to the use of this medication under the terms of the current order which gives her the authority to consent to medical treatment.
The Tribunal heard evidence that there is agreement amongst family members that JH should have no contact with her estranged husband who continues to live in Victoria. The guardian said that, based on the evidence from the treating psychiatrist, it is her view that it is in JH's best interests to have no further contact with her estranged husband.
It was clear from the evidence of the parties that family members cannot agree on where JH should live in the long term. Family residing in Victoria want her to return to live in Victoria while family living in Western Australia want her to live in Western Australia.
The guardian advised that her decision as to the most appropriate permanent accommodation for JH has been delayed because of the extensive consultation she has undertaken with the various family members and the medical treatment team.
ST said that, given the ongoing conflict between family members, she believes that it is in JH's best interests for the status quo to remain, with a guardian independent of the family to make decisions about long‑term accommodation, medical treatment, contact with JH's estranged husband and the use of physical restraints where appropriate.
Because of some confusion about the videolink, EH and his case manager MZ joined the hearing late. EH proposed that he take on the roles of both guardian and administrator and took the opportunity to proclaim his innocence in relation to allegations that he had mistreated JH during their marriage and life together. He informed the Tribunal that, when he last spoke to her, some time ago, JH expressed a wish to return to Victoria to live with him. The Tribunal directed him to the guardian's report in which the guardian said that JH has repeatedly said she does not wish to have any further contact with EH.
EH said that if appointed guardian he would consider favourably any proposal that JH remain in her current accommodation in Western Australia. He based this on reports from his niece who visited JH and said that her current accommodation is 'beautiful'. He said he 'would have no objections to her staying there' (T:35).
EH was not clear on how he would go about making medical treatment decisions for JH if he were her guardian. He said that he would not prevent family having contact with JH but said that they had not bothered much in the years he and JH lived together. It was clear from the responses and interjections from family members at this point that there is considerable disagreement and conflict between the children and EH.
KW proposed that she take on the role of guardian and said that if appointed she would 'ensure that [JH] stayed in WA [sic] where she is' (T:36). She said she visits JH once or twice a week and is very aware of her cognitive deterioration and what decisions should be made in her best interests. KW said she feels comfortable communicating with all family members, including EH, but said she agrees with other family members and the guardian that it is in JH's best interests that there should be no contact between her and EH.
The Tribunal heard evidence from parties about the workability of a guardianship order appointing KW in Western Australia. EH said that he would prefer that JH returned to live near him in Victoria with him as her guardian but if she is to remain in Western Australia he supports the appointment of KW as guardian.
KT and BC said that they wish to take on the role of guardian and, if appointed, would make the decision that JH return to live in Victoria in order that family and friends can have face‑to‑face contact with her. They acknowledged that communication between the Victorian based family members and the Western Australian based family members is problematic with both sides reporting that they are unable to communicate with the other.
The guardian said that it is her view, given the ongoing conflict between family members, particularly in relation to the accommodation decision, that it is in JH's best interests to have a guardian independent of the family to make decisions in her best interests.
Administration
Evidence was provided by the Public Trustee in his report and by family members that there are still property settlement issues to resolve in relation to assets held jointly by JH and EH. The Public Trustee reported that some difficulties have been experienced because of the estate being held in Victoria.
BC and KT, both based in Victoria, proposed themselves as administrators but withdrew their proposals when the Tribunal confirmed the order appointing the Public Advocate guardian of JH. KT said that they did not wish to take on the role of administrator with a Western Australian based guardian because of a belief that this meant that JH would continue to reside in Western Australia.
In her submission, DW proposed herself as administrator but chose not to attend the hearing and give the Tribunal an opportunity to hear from her in person to assess her suitability for the role.

Legislation

In accordance with s 84 of the GA Act, the Tribunal must review an order within a specified period not exceeding five years from the date of making the order.
Upon review, the Tribunal may confirm, amend or revoke the order or revoke and substitute another order for it (s 90(1), GA Act).
The principles to be observed by the Tribunal when making determinations in relation to proceedings brought under the GA Act are set out in s 4.
These principles are:
•the best interests of the person are of primary concern to the Tribunal;
•every person is presumed to be capable of making reasonable judgments in respect of his or her person unless proven otherwise;
•an order appointing a guardian should only be made if the needs of the person concerned cannot be met by other means that are less restrictive of their personal freedom of decision and action;
•if an appointment is made, a plenary guardian should only be appointed if the needs of the person concerned cannot be met by a limited appointment; and
•the Tribunal should, as far as possible, ascertain the views and wishes of the person concerned.
In deciding whether to appoint an administrator and in reviewing the appointment of an administrator, the Tribunal is required, by the provisions of s 64 of the GA Act, to make a finding that the person is unable, by reason of a mental disability, to make reasonable judgments in respect to matters relating to all or any part of his estate and is in need of an administrator of his or her estate.
Similarly, in appointing or reviewing a guardianship order the Tribunal is required by the provisions of s 43 of the GA Act to make a finding that the person has attained the age of 18 years, 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 and that there is a need of a guardian.

Findings and reasons

Capacity of the represented person to make decisions for herself

Because of the presumption of capacity in the GA Act, each time the Tribunal reviews orders, the issue of capacity must again be addressed. In this case, as in the previous hearing, all parties agreed that JH no longer has the capacity to make reasonable judgments for herself in relation to lifestyle or financial matters. The Tribunal had before it evidence from Dr F and other parties that JH's cognitive capacity had further deteriorated since the last hearing.
The Tribunal is satisfied, based on this evidence, that JH is no longer able to look after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person and is in need of oversight, care and control in the interests of her own health and safety. The Tribunal finds that JH satisfies the criteria set out in s 43 of the GA Act and is a person for whom a guardianship order can be made.
Similarly, the Tribunal finds that JH satisfies the criteria in s 64 of the GA Act in that she is unable, because of a mental disability, to make reasonable judgments in respect of matters relating to her estate.

Need for orders

As set out in the legislation, the appointment of an administrator and/or a guardian requires the Tribunal to find there is a need for an order and that entails consideration of whether the needs of the person can be met by any means less restrictive of the person's freedom of decision and action.
In this case, based on the evidence provided at this and the previous hearing, the Tribunal finds that an administrator is needed to make decisions about JH's finances, including paying her bills and ensuring she receives her share of the jointly owned assets from the impending property settlement between her and EH.
The Tribunal also finds that a guardian is needed to make decisions about JH's contact with others, the use of physical restraints, her medical and dental treatment and her accommodation needs.

Contact with others

Evidence was provided by the parties about the distress caused to JH in the past by contact with her husband EH. Evidence was also provided that JH has consistently stated to all parties that she wishes to have no further contact with EH. EH disputes this but was not able to provide evidence to satisfy the Tribunal that JH wishes to have any further contact with him. Despite the conflict between family members in relation to other decisions being made for JH, all agree that JH should have no further contact with EH. Based on the evidence provided by the parties, the Tribunal finds that there is a need for a guardian to make decisions in relation to JH's contact with EH.

The use of restraints

ST, the social worker from the nursing home provided evidence about the use of physical restraints such as bedrails and lap belts to ensure JH's safety. In addition, the nursing home have been using all‑in‑one garments to ensure JH's dignity is protected. The Tribunal is satisfied that the bedrails, lap belts and all‑in‑one garments are being used as physical restraints and as such require the consent of an authorised decision‑maker.
In respect of the Respiridol medication that is being used to manage JH's agitation, the Tribunal agrees with the guardian that this can be managed under a medical treatment authority.

Medical treatment

JH has a diagnosis of dementia and other medical conditions that require treatment and medications, including Respiridol, which is used to manage her agitation. Evidence was provided to the Tribunal by the guardian that she had made decisions in relation to medical and dental treatment including the prescribing of Respiridol and there is an expectation that there will continue to be medical and dental treatment decisions to be made.

The Tribunal finds that there is a need for a guardian to continue to make decisions in relation to the management of JH's medical and dental treatment.

Accommodation

There was convincing evidence before the Tribunal about the disagreement between various family members as to where JH should ultimately reside. It is admirable that family members each want to have access to JH to visit and support her and it is unfortunate that this is difficult for family members to achieve this while living geographically distant from her.
Because of the conflict between parties and their wish to have JH live close to particular family members, it is difficult to see how this can be resolved in a way that can satisfy all parties.
Given the apparent impasse reached by the family in this regard, the Tribunal finds that it is in JH's best interests that a guardian independent of the family be appointed to make the difficult decision about her long‑term accommodation needs.

Who should be appointed

Having found that there is a need for a guardian and an administrator, the Tribunal must decide whom to appoint. In some cases a family member or a friend is willing and suitable to be appointed.
In this case DW, daughter of JH, proposed herself in the roles of both guardian and administrator but the Tribunal was unable to consider her for either role as, despite the adjournment of proceedings for her to be given an opportunity to attend either in person or by telephone, she chose not to attend the hearing. The Tribunal therefore had no opportunity to consider her suitability for either role.
The Tribunal considered the proposals by KT and BC, daughter and son of JH, that they be appointed joint guardians and administrators of the estate of JH. Based on the evidence provided by KT and BC in relation to their determination to move JH back to Victoria, the Tribunal finds them unsuitable to be appointed guardians. The Tribunal is not satisfied that guardianship decisions made by KT and BC would be in JH's best interests but may be influenced by their own need to be geographically close to JH.
The Tribunal found KT and BC suitable to take on the role of administrator but they subsequently revoked their proposal to take on the role of administrator because they did not believe the role was compatible with a Western Australian based guardian.
The Tribunal considered KW's proposal that she take on the role of guardian but found, despite KW's belief that she can communicate effectively with all family members, that the level of conflict between family members which prevents communication between them, is a barrier to consultation and decision‑making in JH's best interests. The Tribunal is not satisfied that KW would be able to communicate effectively with all family members and make decisions based on JH's best interests.
EH proposed himself as guardian but, given the level of animosity between him and all family members, including JH, he was not able to satisfy the Tribunal of his suitability to take on the role.

Wishes and best interests of the represented person

Where possible, the Tribunal takes into account the views and wishes of the person themselves. In this case, all family members argued strongly for what they believe JH's wishes were when she was able to express them. They said that she would want to see all her children and grandchildren and have them visit and spend time with her.
The Tribunal is satisfied that this is so and accepts that the reason for the breakdown in family relationships (other than between JH and EH) is the result of JH's move to Western Australia making it difficult for her family in Victoria to have supportive and satisfactory relationships with her. This is made particularly difficult because of JH's progressive dementia which makes communication, other than face‑to‑face, problematic.
All the children and grandchildren of JH are unanimous in their belief that JH does not want EH in her life. This view is supported by the guardian who gave evidence that JH has said on several occasions that she wants no further contact with EH.
The Tribunal was not able to ascertain who JH might have wanted to be appointed in the roles of guardian and administrator if she had been able to express her wishes in this regard.
In any case, until the conflict between family members is resolved, a family appointment is unlikely as the Tribunal must make a decision based on what it believes is in the best interests of JH. It is not in her best interests that a family member be appointed, with each faction having an investment in promoting their own interests, particularly in relation to JH's long‑term care and accommodation needs.
The Tribunal finds that there is no alternative other than the appointment of a guardian independent of the family.
No family member proposed themselves in the role of administrator, leaving the Tribunal with no other option than to appoint the Public Trustee administrator of the estate of JH.

Decision

The Tribunal finds that it is in JH's best interests that the Public Trustee continues in the role of administrator to make daytoday budgeting decisions, to pay accounts, to ensure that JH receives an allowance adequate for her daily needs and to pursue the property settlement between JH and EH.
Similarly, the Tribunal finds that it is in JH's best interests that the Public Advocate, a guardian independent of the family, continue in the role of limited guardian to make decisions about JH's contact with EH, her medical and dental treatment, her accommodation needs and the use of chemical or physical restraint if necessary or appropriate.
Both these appointments are made for five years.

I certify that this and the preceding [70] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER