JM and JD
[2012] WASAT 231
•26 NOVEMBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JM and JD [2012] WASAT 231
MEMBER: MS S GILLETT (MEMBER)
HEARD: 11 MAY 2012
DELIVERED : 26 NOVEMBER 2012
FILE NO/S: GAA 903 of 2012
GAA 916 of 2012
BETWEEN: JM
Applicant
AND
JD
Represented Person
Catchwords:
Guardianship and administration - Application for the appointment of guardian and administration - Guardianship - Administration - Capacity to make reasonable judgments - Need for independent decision-maker
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43(1), s 44(1), s 44(2), s 44(5), s 64(1), s 68(1), s 68(3), Div 3 Pt 5
Mental Health Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 78
Result:
Public Trustee appointed plenary administrator
Public Advocate appointed limited guardian
Summary of Tribunal's decision:
An independent guardian and an administrator were appointed for a gravely ill man for whom an involuntary order under the Mental Health Act 1996 (WA) had been made. The man had been diagnosed with dementia overlaid with a recent history of delirium, and with cognitive changes amplifying aspects of his personality. Mistrust and tensions in the relationship between the man's second wife and his adult children in the Netherlands contributed to the need for orders to be made.
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented Person : Self-represented
Solicitors:
Applicant: N/A
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Background
JD is a 79yearold retired accountant who moved to Australia from the Netherlands some 15 years ago, shortly after his marriage to his second wife. The relationship between JD's wife and his three adult children from his first marriage who live in the Netherlands is strained and lacking in trust. In late 2011, JD was diagnosed with rectal cancer with liver metastases. He was hospitalised in January 2012 due to increasing confusion and has remained in hospital.
Applications for the appointment of a guardian and an administrator were lodged by JD's wife, JM, in March 2012, at which time JD was assessed to require 24 hour supervision. In her written application, JM proposed that she be appointed guardian and administrator for her husband. At the time of the scheduled hearing, JD was an involuntary patient at Selby Older Adult Mental Health Service (Selby) following a failed placement at a transitional care facility, where JD's aggressive behaviours could not be managed.
The hearing took place at Selby so that JD could attend in person and following concerns raised that there were significant risks involved in escorting him to the Tribunal's premises. The hearing on 11 May 2012 was attended by:
•JD;
•JD's wife, JM, and her daughter;
•JD's son, daughters and soninlaw by teleconference;
•Dr S, the consultant psychiatrist;
•Dr W, the medical officer from Selby;
•allied health staff from Selby; and
•a representative of the Public Advocate.
Brief oral reasons were delivered at the conclusion of the hearing on 11 May 2012. These written reasons are provided at the request of the Public Trustee pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Issues for determination
The issues for determination by the Tribunal are:
1)Whether JD is unable, by reason of a mental disability, to make reasonable judgments about all or part of his estate.
2)If so, whether JD is in need of an administrator.
3)If JD is in need of an administrator, who should be appointed in that role.
4)Whether JD is a person for whom a guardian may be appointed.
5)Whether JD is in need of a guardian.
6)If so, who should be appointed.
Legislation
The Tribunal has jurisdiction by virtue of the Guardianship and Administration Act 1990 (WA) (GA Act) to make orders concerning the appointment of administrators and guardians. The Tribunal may appoint an administrator for a person who it is satisfied is unable, by reason of a mental disability, to make reasonable judgments about all or part of his estate and is in need of an administrator: s 64(1). Section 43(1) of the GA Act provides that the Tribunal may appoint a guardian for a person it is satisfied is:
…
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian,
…
Who may be appointed an administrator
An administrator shall be someone who, in the opinion of the Tribunal, will act in the best interests of the person in respect of whom an application is made and who is otherwise suitable to act in that position: s 68(1) of the GA Act. For the purposes of determining whether a person is suitable to be appointed administrator, the Tribunal should take into account as far as possible the compatibility of the proposed appointee with the person concerned and with the guardian of that person, the wishes of the person concerned and whether the proposed administrator will be able to perform the functions vested in them: s 68(3) of the GA Act.
Who may be appointed a guardian
A guardian shall be someone who, in the opinion of the Tribunal, will act in the best interests of the person concerned who is not in a position in which his interests conflict or may conflict with the interests of that person and who is otherwise suitable to act as guardian: s 44(1) of the GA Act. For the purposes of determining whether a person is suitable to be appointed guardian, the Tribunal should take into account as far as possible the desirability of preserving existing relationships within the family of the person concerned, the compatibility of the proposed appointee with the person concerned and with the administrator of their estate, the wishes of the person concerned and whether the proposed guardian will be able to perform the functions vested in them: s 44(2) of the GA Act.
Except where appointed to act jointly with another person, the Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act: s 44(5) of the GA Act.
Principles to be observed
In dealing with proceedings under the GA Act, the Tribunal must observe the principles set out in s 4(2). As they apply here, those principles are:
1)the Tribunal's main concern must be JD's best interests;
2)JD is presumed capable of looking after his own health and safety or making reasonable judgments in respect of his person or managing his own affairs and making reasonable judgments in respect of matters concerning his estate until the contrary is proven to the satisfaction of the Tribunal;
3)a guardianship or administration order shall not be made if JD's needs could be met by other means less restrictive of his freedom of decision and action;
4)a plenary guardian shall not be appointed if a limited appointment would be sufficient to meet JD's needs;
5)any order must be in terms that impose the least restrictions possible in the circumstance; and
6)the Tribunal must seek to ascertain as far as possible JD's views and wishes as expressed in whatever manner from time to time or as gathered from his previous actions.
Whether JD is a person for whom an administrator or a guardian may be appointed
The following written evidence was received:
•A detailed report from a specialist clinical psychologist, TH, who formally assessed JD on 3 May 2012. TH reported that the assessment results 'indicate a considerable deterioration from estimated premorbid functioning with general intellectual level currently below the fifth percentile for age and education. Global deficits are evident with prominent memory and executive dysfunction'. Further, TH concluded, in light of JD being described as having always been 'a very controlling demanding and intolerant man who would often become aggressive when thwarted or confronted', that 'it is likely that the exacerbation of his behavioural difficulties are related to the decline in cognitive functioning both physiologically and psychologically'. JD's problemsolving ability and decisionmaking capacity regarding finances are assessed to be impaired, and he is said to be 'lacking insight into this and the severity of his memory loss'.
•A doctor's guide from Dr W from Selby dated 3 May 2012 sets out that JD has been diagnosed with dementia and further states that 'through assessment and observation it is clear that he has significant cognitive impairment with limited insight and impaired judgment'.
Dr W assessed JD to be incapable of making reasonable decisions in respect to both personal and financial spheres and that he lacks the capacity to execute a valid Enduring Power of Attorney.
•Earlier reports and hospital case notes from the period prior to the admission to Selby note that some of JD's symptoms, including visual hallucinations, are suggestive of an intermittent delirium. Referral for investigations and assessments were made to the psychogeriatric team and to the specialist delirium assessment unit who noted that JD had significant premorbid personality traits. Reports referred to information gathered from both his wife and his adult children which consistently describe JD as an extremely domineering and controlling man with a bad temper who was often verbally and occasionally physically aggressive.
•The hospital case notes made by Dr O, a psychogeriatrician, on 20 February 2012 record that JD had 'ongoing delirium overlying a progressive dementia (with significant vascular component) with preexisting personality component; not competent to make decisions'.
•The Aged Care Assessment Team (ACAT) report in early March 2012 refers to JD having 'frequent visual hallucinations believing he is elsewhere and that events have occurred which haven't', 'severe lack of insight, aggression directed to wife regularly confused and disoriented'. JD was approved for low level residential and respite care and for a community aged care package which could be utilised if JD's cognition improved and his wife was able to bring him home.
•Further case notes and reports from the hospital record JD's transfer to a transitional care placement on 3 April 2012, his readmission to the hospital three days later as the care facility could not manage his increased aggressive behaviours and high levels of agitation, and his subsequent transfer to Selby on 17 April 2012.
Admission to Selby was on referral from Dr F, psychogeriatrician, and JD was subsequently made an involuntary patient under the provisions of the Mental Health Act 1996 (WA).
The Tribunal received a written request from Dr M, consultant psychiatrist and head of the service at Selby, seeking that the hearing be conducted at Selby due to there being significant risks associated with JD being escorted to the Tribunal's premises and further identifying concerns that a hearing by videoconference may limit JD's ability to comprehend the hearing.
Written submissions were made to the Tribunal by JD's adult children and family in Holland which attested to him being an extremely dominant man whose verbally aggressive and hostile behaviours had contributed to numerous disputes with people throughout his life, including his family members and wife. A copy of email correspondence between JD's family in Holland and Selby confirmed that the medical team assessing JD's cognitive functioning were informed that JD had always displayed, at times, behaviours that may be viewed as impulsive, intrusive, aggressive or inappropriate.
In the hearing, Dr S confirmed that JD remained an involuntary patient and that she anticipated that the involuntary treatment order would be continued. Dr S said that although the visual hallucinations and delusional symptoms had settled, JD continues to exhibit significant memory and executive dysfunction and has remained agitated and suspicious in his interactions. Further, he remains inconsistent in the expression of his wishes and he continues to lack insight into his cognitive deficits.
Findings regarding capacity
The medical evidence as to JD's capacity to make reasonable judgments concerning his personal or financial affairs is compelling. The earlier reports from Dr F and Dr O identify episodes of delirium which fluctuated in intensity and it was anticipated that these episodes may settle. Dr S confirmed that the delusions and visual hallucinations have settled and that the assessment of JD's capacity to manage his own affairs and to make his own personal and lifestyle decisions for himself was undertaken subsequently.
The Tribunal accepts the evidence of Dr S, consultant psychiatrist, that JD has an emerging dementia that impairs his ability to make reasonable judgments about his estate. The Tribunal is satisfied, on the basis of reports from the treating team at Selby, the specialist clinical psychologist, TH, and the earlier hospital reports, that JD is no longer able, by reason of dementia, to make reasonable judgments about his estate, and further, that he is incapable of looking after his own health and safety and is unable to make reasonable judgments in respect to matters relating to his person and that he is in need of oversight, care or control in the interests of his own health and safety. Thus, the presumption of capacity is displaced and the Tribunal finds that JD is a person for whom a guardian and an administrator may be appointed.
Whether JD is in need of an administrator
JD's income comprises a pension from Holland. He jointly owns with his wife the property where they resided together prior to his admission to hospital in January 2012. JM said that she has very little understanding of her husband's finances as he had managed all the bills and household expenses, and all accounts are held in his name. JM referred to her husband as being secretive and controlling in his approach to financial matters.
The extent of JD's estate was unclear. Concerns were expressed by JD's wife that he had transferred funds to his family in Holland some months prior to the applications being made. JD's family in Holland were informed by him that he had withdrawn a large sum of about $12,500 to pay for his trip to the Netherlands just prior to his hospitalisation in January 2012, but that he had not used these funds. JD's wife was not aware of any such transaction or of those funds. JD's son said in the hearing that he was aware that his father had one account in Holland, but the balance in that account was not known.
JD said in the hearing that his pension is paid into his ING bank account in Holland each month. He further stated in the hearing that he had not been required to lodge tax returns since 1997 when he turned 65 and was granted his pension from Holland. It is noted, however, in the report from the social worker at Selby that JD was said to have been previously involved in a court case with the Australian Taxation Office.
Findings regarding need
Although JD's estate appears now to be relatively simple, the Tribunal is satisfied that there is a need for someone with lawful authority to act on his behalf. This need arises in the context that JD managed his financial affairs without the involvement of his wife and that there is little known of any financial interest that he may have in Holland, other than his pension and bank account there. It is further unclear as to whether JD may have any unclaimed entitlement to a part Australian pension, given his residency in Australia since 1997.
Who should be appointed
In her written application, JM proposed that she be appointed administrator of her husband's estate. However, at the hearing, JM said that she was not willing to act in this capacity. Although JD expressed his opposition to having orders made, he indicated in the hearing that he would want his wife to act on his behalf if anyone was to be appointed. It is noted in the report of the social worker at Selby that JD's mood, opinions and wishes fluctuate significantly, and that he intermittently expressed hostility and suspiciousness towards his wife. Accordingly, in the absence of anyone else proposing themselves for appointment, the Tribunal appoints the Public Trustee administrator of JD's estate, with plenary powers.
Whether JD is in need of a guardian and, if so, who should be appointed
JM seeks in her written application the appointment of a guardian to make decisions for JD about his medical treatment, access to services and accommodation, and proposes that she be appointed in this capacity.
In their written submissions to the Tribunal and at the hearing, JD's family in Holland said that since learning that his illness was terminal, their father had expressed his wish to travel to Holland and to remain living there. JD's adult children indicated they wished to assist their father to achieve this. Dr S and the treating team at Selby noted that while JD has expressed a desire to visit family in Holland, as was evident at the hearing, JD's views and wishes fluctuate widely. It is evident that, the decision-making concerning the issue of where JD is to be living and, further, whether he is to travel outside Western Australia will be complex and contentious, and will necessitate careful consultation with the treating team in addition to consultation with JD's family in Holland, his wife and JD himself.
JM and JD's adult children acknowledge that the relationship between them is difficult and communication is strained. It is understood that the tensions already existing between JM and JD's adult children in Holland have been exacerbated by the complexities within their respective relationships with JD, the geographical distance, and by the challenges posed by JD being gravely ill at the same time as experiencing significant cognitive impairment.
Although acknowledging that JM had been consenting to her husband's medical treatment and making decisions in his best interests, the Public Advocate's representative suggested that the appointment of the Public Advocate to make treatment decisions may be in JD's interests, as this would ensure communication with both JD's family in Holland and his wife, and would also lessen the stress on JM. Both JD's family in Holland and his wife expressed their support in the hearing for the proposal that the Public Advocate be appointed guardian for JD.
The Tribunal accepts that there is a need for a guardian to be appointed for the purpose of determining matters relating to JD's accommodation, medical treatment and travel to be undertaken outside Western Australia, and services that should be made available. Although JM proposed that she be appointed as guardian in her written application, she acknowledged the stress that she had been under in recent months, and the strains between herself and JD's family in Holland, and indicated her support of the appointment of an independent guardian.
The Tribunal accepts that it is in JD's best interests if both his wife and his family in Holland are informed and consulted concerning all significant decisions to be made on his behalf. The Tribunal found that this would be best achieved by the appointment of an independent guardian. JD's wife and his family in Holland agreed with the proposal that the Public Advocate be appointed. The guardianship order will be reviewed in 12 months in order to then consider whether a family member may be suitable to be appointed as guardian for JD.
Orders
GAA 916 of 2012
On an application for the appointment of a guardian for the represented person heard before Member S Gillett on 11 May 2012, it is ordered that:
1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person;
(d)to determine the services to which the represented person should have access; and
(e)to decide whether the represented person is to travel outside of Western Australia and if so, to decide the terms and conditions upon which the represented person is permitted to travel.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.This order is to be reviewed by 11 May 2013.
GAA 903 of 2012
On an application for the appointment of an administrator for the represented person heard before Member S Gillett on 11 May 2012, it is ordered that:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is to apply or expend moneys of the represented person, whether income or capital, for the maintenance, necessaries, comforts and benefits of the represented person or the spouse of the represented person, in such manner and to such extent as the administrator, having regard to the circumstances and the value of the estate of that person, considers proper and reasonable.
3.This order is to be reviewed by 11 May 2017.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS S GILLETT, MEMBER
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