JOAN WHYTE (Guardianship and Management of Property)
[2010] ACAT 23
•6 April 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
JOAN WHYTE (Guardianship and Management of Property) [2010] ACAT 23
GT 24 of 2010
Catchwords: ENDURING POWERS OF ATTORNEY – whether ACAT can suspend an enduring power of attorney – decision-making principles - wishes of principal – balancing wishes with need for care and protection
Legislation:Guardianship and Management of Property Act 1991 (ACT) ss 4, 16, 18, 32, 62, 66, 67
Powers of Attorney Act 1956 (ACT)
Powers of Attorney Act 2006 (ACT) ss 18, 44, 74, 92, Schedule 1
Case Law: Omari v Omari et al [2009] ACTSC 28
Tribunal: Ms L Crebbin, General President
Mr H Hird, Member
Date of Orders: 6 April 2010
Date of Reasons for Decision: 21 April 2010IN THE AUSTRALIN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) GT 24 of 2010
In the matter of an application under the Guardianship and Management of Property Act 1991 re JOAN WHYTE (dob. 05.03.1916)
Tribunal: Ms L Crebbin, General President
Mr H. Hird, MemberDate: 6 April 2010
ORDER
- The application of David Whyte seeking the temporary suspension of Parts B and C of the Enduring Power of Attorney executed by Joan Whyte on 25 October 2003 and his appointment as guardian for Joan Whyte is dismissed.
REASONS FOR DECISION
These reasons explain why the ACT Civil and Administrative Tribunal (the Tribunal) dismissed an application made to it by David Whyte.
BACKGROUND TO THE APPLICATION
David Whyte is the son of Mrs Joan Whyte. On 25 October 2003, Mrs Whyte executed an Enduring Power of Attorney (EPOA) appointing her daughters Jennifer Osborne and Rosalind Horne to be her attorneys for the management of her property and finances, for the purpose of making personal care decisions and for the purpose of providing consent to medical treatment and medical donation. The appointments were made on a joint and several basis and were expressed to come into effect only when Mrs Whyte was incapacitated.
The EPOA appointed another daughter, Kerry Haddad “in lieu” of Ms Horne. An annotation on the EPOA appears to relate to the circumstances in which Ms Haddad’s appointment should be called on. The meaning of the annotation is not clear, but that is not relevant to this application. In these reasons, Ms Osborne, Ms Horne and Ms Haddad are referred to as “the attorneys”.
It is accepted that some time after the EPOA was made, Mrs Whyte became incapacitated and the EPOA became effective.
Mrs Whyte lives in her own home. In about September 2009, she was hospitalised for a short period. She was discharged from hospital to an aged care facility (the facility) for respite care. She stayed there for 5 weeks and then returned home. Since then she has received care from a community care provider for approximately 18 hours each week. The care is provided under what is called an EACH /D package. In addition, members of the family, particularly Mr Whyte and Ms Osborne, assist her with a wide range of personal care and home care activities. Mr Whyte and Ms Osborne both live in the ACT while Ms Horne and Ms Haddad live interstate.
This application was brought by Mr Whyte because he disagrees with a decision the attorneys have made about Mrs Whyte’s accommodation and care. Each attorney is travelling overseas in April and May. They are travelling at different times. Ms Osborne was the first to leave on about 12 April. She will be away until about 23 May. There will be no attorney in Australia from about 22 April until about 23 May.
The attorneys have decided that Mrs Whyte should return to live at the facility from 12 April on a respite basis while they are overseas. It is intended that the respite placement will become permanent when a permanent position becomes available.
THE APPLICATION AND DOCUMENTS FILED WITH THE TRIBUNAL
Mr Whyte’s application asked that the operation of the EPOA be suspended while the attorneys are away and that the Public Advocate of the ACT (the PA ACT) be appointed as Mrs Whyte’s guardian for that period. The application explained the reason it was made as follows:
oSeeking guardianship by public advocate for 6 week period whilst sisters are away overseas;
oSisters going overseas from 14 April 2010 for 6 weeks;
oReason for application is because of Joan’s mental state and belief that it would be harmful to her condition + welfare to remove her from familiar grounds for 6 weeks, only to convenience sister whilst overseas;
oFear by David that Joan’s condition may worsen if put in respite and belief that his mother would prefer to stay at home.
Shortly before the hearing, Mr Whyte filed a document headed “Proposal for Guardianship in respect of Joan Whyte on behalf of David Whyte”. This document proposed that Mr Whyte be appointed guardian on a temporary basis rather than the PA ACT. It also indicated that Mr Whyte intended, if appointed guardian, to decide that his mother stay at home in the relevant period and that Mr Whyte or he and his wife together, should stay with her each night.
10. The application was accompanied by copies of a chain of emails and a medical report.
11. The first email in the chain was sent by Mr Whyte to Ms Osborne and Ms Horne and copied to Ms Haddad on 14 February 2010. In summary, Mr Whyte’s email referred to an earlier email and letter advising Mr Whyte that the attorneys had decided to place Mrs Whyte in the facility on a respite basis while they were away and then on a permanent basis. Mr Whyte expressed his strong disagreement with the decision. He referred to Mrs Whyte’s wish to stay at home as paramount and asked the attorneys to respect that wish.
12. The chain continues with a response from Ms Osborne dated 16 February 2010 that provided information about a discussion with the community care provider concerning arrangements for Mrs Whyte’s care. The email also contained general comments about Mrs Whyte’s previous experience of and attitude to the facility. Ms Horne responded to Mr Whyte on 28 February 2010 with a brief email indicating her belief that it is in Mrs Whyte’s best interests to place her in respite care in the facility while the attorneys are overseas.
13. There is a handwritten annotation on the bottom of one of the emails made by Mr Whyte. The annotation indicates that Mr Whyte had informed the community care provider that his wife, his son and his cousin’s wife may be available as “back up” to assist with the care of his mother in her home.
14. The medical report accompanying the application is dated 23 October 2009. It is a report sent by Dr Anil Paramadhathil, a consultant in geriatric medicine, to Dr Iain Anderson, a referring general practitioner. The report briefly recites Mrs Whyte’s medical and family history, provides information about a clinical examination and suggests further tests and a trial of medication. We note that the examination took place shortly after Mrs Whyte’s return home from hospital. The EACH/D package had been in place for a short time.
15. The application was lodged with the Tribunal on 15 March 2010. Ms Osborne was due to leave Australia on about 12 April, leaving little time for the Tribunal to arrange and hold a hearing. A direction was made in Chambers on 16 March 2010 under Section 62, Guardianship and Management of Property Act 1991 requiring the attorneys to meet with the PA ACT to discuss the issues raised in the application. The attorneys and Mr Whyte were advised that the application would be listed for consideration after it had heard from the PA ACT.
16. On 25 March 2010, the Tribunal was advised by the PA ACT that a meeting had been held as directed, that a report was being prepared for the Tribunal and that a hearing should be scheduled before the planned travel commenced. Notices of hearing were sent out the same day advising all interested parties that the application would be considered at a hearing on 6 April 2010, the only available hearing date. Tribunal staff contacted the community care provider and asked for a report to be provided by the hearing date.
17. The Tribunal received the following further documents before the hearing:
(a) letter from Karen Rowlands, Case Manager EACH/D, Mirinjani Community Care received 26 March 2010;
(b) medical report with attached Annual Health Assessment prepared by Dr J. Bromley dated 31 March 2010;
(c) a folder containing various documents filed on behalf of the attorneys including a copy of the EPOA, documents relating to arrangements made for Mrs Whyte’s care, the attorneys’ reasons for the decision referred to in Mr Whyte’s application, emails relating to decision-making concerning Mrs Whyte and documents described as “testimonials”;
(d) a report from the PA ACT concerning a home visit to Mrs Whyte dated 25 March 2010;
(e) a document headed “Proposal for Guardianship in respect of Joan Whyte on behalf of David Whyte” dated 1 April 2010. This document was, in effect, an amendment of Mr Whyte’s application. It proposed that he be appointed as temporary guardian while his sisters are overseas and that his mother remain at home on the basis that the current care arrangements continue. In the alternative, Mr Whyte proposed that he or he and his wife live with his mother while his sisters are overseas.
18. The hearing was attended by Ms Osborne, Ms Horne, Ms Haddad, Mr Whyte and his legal representative, a representative of the PA ACT and a representative of the Public Trustee of the ACT. Mrs Whyte was not present but the report of the PA ACT provided information about a meeting with her.
RELEVANT LEGISLATION
19. The EPOA was made under the provisions of the Powers of Attorney Act 1956. That Act was repealed in May 2007 when the Powers of Attorney Act 2006 (POA Act 2006) commenced. Section 92 of the POA Act 2006 preserves the operation of general and enduring powers of attorney entered into before May 2007 and provides that the provisions of the POA Act 2006 apply to them. As a result, the law that applies to this EPOA is set out in the POA Act 2006. The Guardianship and Management of Property Act 1991 (ACT) (G & MoP Act) authorises the Tribunal to consider a range of applications about, and make various orders in relation to, powers of attorney.
20. Section 62 of the G & MoP Act gives the Tribunal power to make orders on application, or on its own initiative in relation to enduring powers of attorney, if the principal has impaired decision-making capacity. Applications can be made by an interested person or by someone else with the leave of the Tribunal. For the purposes of Section 62, the term “interested person” has the meaning set out in Section 74, POA Act 2006. The definition includes, at Section 74(c), a relative of the principal.
21. It was accepted that Mrs Whyte, as principal, has impaired decision-making capacity and that Mr Whyte is an “interested person” as defined in the legislation. The Tribunal therefore may consider Mr Whyte’s application.
22. Sections 62(2)(a) and (c) of the G & MoP Act relevantly provide that the Tribunal may, by order –
(a) give a direction, not inconsistent with the Powers of Attorney Act 2006 or the power of attorney, that the attorney do or not do a stated act;
or
(c) revoke the enduring power of attorney, or part of it;
23. Section 62(4) of G & MoP Act provides:
(4) If the ACAT revokes an enduring power of attorney, the ACAT may appoint a guardian or manager for the person who was the principal for the power.
24. Section 66 of the G & MoP Act provides that the Tribunal may remove an attorney if satisfied that it is in the interests of the principal to remove the attorney.
25. Section 67 of the G & MoP Act gives the Tribunal the power to make an emergency order appointing the PA ACT as guardian for a person in special circumstances of urgency that make it proper to make such an appointment. Section 67 is headed “Temporary Appointments” and is the only legislative provision that gives the Tribunal power to make a short term or temporary order about guardianship. This application does not seek an order under Section 67 of the G & MoP Act. Mrs Whyte’s circumstances are not currently such that an emergency order would be appropriate.
26. Sections 16 and 18 of the G & MoP Act empower the Tribunal to give directions, or an opinion or advice to a guardian or manager about the exercise of his or her functions or power.
27. With the exception of the power to give directions to an attorney to do or not to do a stated act under Section 62(2)(a) of the G & MoP Act and a power to direct an attorney to produce accounts and records of transactions; the Tribunal is not empowered to give an opinion or advice to an attorney about the exercise of his or her powers or functions.
28. Various sections of the POA Act 2006 set out the circumstances in which an enduring power of attorney can be brought to an end and what should happen when the appointment of one or more attorneys is revoked or when an attorney has impaired decision-making capacity. These provisions are relevant to the current proceedings in so far as they do not include any provision for the temporary suspension of an appointment of an attorney.
29. Section 4 of the G & MoP Act sets out the principles (the decision-making principles) that a decision-maker exercising functions under that Act must follow. There is some doubt as to whether the Tribunal is a decision-maker bound to comply with the decision-making principles (see Refshauge, J in Omari v Omari et al [2009] ACTSC 28 at paragraphs 116 to 135) but the Tribunal accepts that it is highly desirable that it do so. The relevant parts of Section 4 provide:
(1) This section applies to the exercise by a person (the decision-maker) of a function under this Act in relation to a person with impaired decision-making ability (the protected person).
(2) The decision-making principles to be followed by the decision-maker are the following:
(a) the protected person’s wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person’s interests;
(b) if giving effect to the protected person’s wishes is likely to significantly adversely affect the person’s interests—the decision-maker must give effect to the protected person’s wishes as far as possible without significantly adversely affecting the protected person’s interests;
(c) if the protected person’s wishes cannot be given effect to at all—the interests of the protected person must be promoted;
(d) the protected person’s life (including the person’s lifestyle) must be interfered with to the smallest extent necessary;
(e) the protected person must be encouraged to look after himself or herself as far as possible;
(f) the protected person must be encouraged to live in the general community, and take part in community activities, as far as possible.
(3) Before making a decision, the decision-maker must consult with each carer of the protected person.
30. We note that the decision-making principles are similar in effect to the General Principles for Enduring Powers of Attorney, Schedule 1, POA Act 2006 (the General Principles). Section 44 of the POA Act 2006 provides that a person exercising the functions of an attorney under an enduring power of attorney must comply with the general principles to the maximum extent possible. Like the decision-making principles, the General Principles emphasise the right of the subject person to take part in decisions and to have their views and wishes sought and taken into account. Clause 1.6(5) of the General Principles provides that ultimately, an attorney exercising a function in relation to an individual must do so in a way consistent with the individual’s proper care and protection.
POWER OF THE TRIBUNAL TO MAKE THE ORDERS SOUGHT
31. Mr Whyte’s application was an application to suspend, rather than revoke, part of the EPOA, to remove the attorneys and to replace them with a guardian during the period in which the EPOA is suspended. At the hearing, Mr Whyte’s legal representative made it clear that although his written application referred only to decision-making about his mother’s accommodation and personal care arrangements, Mr Whyte was concerned to ensure that there was a substitute decision-maker available to make decisions concerning medical matters for Mrs Whyte while the attorneys were overseas. There was no suggestion that that part of the EPOA relating to financial matters was covered by the application. Nor did Mr Whyte seek a revocation of the EPOA or the removal of any of the attorneys other than on a temporary basis.
32. There is real doubt about the Tribunal’s power to make an order suspending an enduring power of attorney as distinct from revoking all or part of it. There is also doubt about the Tribunal’s power to appoint a person other than the PA ACT, to be a guardian on a temporary basis. The Tribunal is a statutory body and can only make orders where there is a clear power to do so under an authorising law.
33. Section 62 (2)(c) of the G & MoP Act gives the Tribunal power to revoke all or part of an EPOA. The revocation of an instrument comprehends that the operation of the instrument is brought to an end on an on-going basis. Revocation is not a temporary or a short-term act. Suspension, on the other hand, comprehends a temporary arrangement.
34. There is no express power in either the G & MoP Act or the POA Act 2006 to suspend a power of attorney. If an enduring power is revoked, the Tribunal can, under Section 62(4) of the G & MoP Act, appoint a guardian or manager for the person who was the principal. That is an on-going appointment. There is no power to re-enliven an enduring power of attorney once revoked and no power to re-instate an attorney removed from their appointment.
35. There are sound policy reasons for this – third parties rely on the authority given to an attorney to enter into a wide range of transactions, to provide information that would otherwise be confidential and to administer medical treatment in circumstances that might otherwise amount to an assault on the subject person. The authority given by an enduring power of attorney should be clear. Third parties should be able to rely on it consistently. Allowing for the temporary suspension of an enduring power adds an element of uncertainty to substitute decision-making that would usually be undesirable. There may be occasions on which a power to suspend the operation of an enduring power of attorney would be useful – where for example an attorney has a temporary incapacity to make decisions and there are special circumstances of urgency that make it appropriate for the Tribunal to make a temporary emergency order appointing the Public Advocate to be guardian under Section 67 of the G & MoP Act. There is nothing in the current legislative scheme that indicates an intention on the part of the legislature to allow for such an approach, no matter how convenient.
36. These features of the legislative scheme lead us to conclude that the Tribunal does not have the power to make orders in the terms Mr Whyte has requested and that his application must be dismissed.
37. Even if there was such a power, the Tribunal would decline to make the orders sought. It is unnecessary for the Tribunal to canvass its reasons for this position but, given the strength of Mr Whyte’s concerns for his mother, it is appropriate that we do so. We also take into account that Mr Whyte prepared his application himself. He cannot be expected to know the extent (or rather, limits) of the Tribunal’s powers or to know what orders he should ask the Tribunal to make in order to achieve the substantive outcomes he wants.
38. There are two outcomes he seeks: (i) he wants to ensure that there is a person physically located in the ACT to make decisions for Mrs Whyte while the attorneys are overseas and (ii) he wants a reversal of the attorneys’ decision to accommodate Mrs Whyte in the facility on a respite basis and then on a more permanent basis.
39. As to the first, an order appointing another decision-maker for Mrs Whyte would be contrary to Mrs Whyte’s wishes. The EPOA is a clear expression of her wish that Ms Osborne and Ms Horne or Ms Haddad make decisions for her in the event of her incapacity. When she made the EPOA, Mrs Whyte is taken to have understood the nature and effect of making the power (Section 18 of the POA Act 2006). She should be taken to have understood that her attorneys may make decisions that she may not agree with but that are consistent with her proper care and protection. She should be taken to have understood that the attorneys may not always be physically present in the ACT. Indeed, that is usually the case with Ms Horne and Ms Haddad. Applying the decision-making principles requires the Tribunal to give effect to Mrs Whyte’s wishes in this regard unless to do so would significantly adversely affect her interests.
40. The Tribunal considered whether Mrs Whyte’s interests would be significantly adversely affected if her wish that the attorneys be her substitute decision-makers stands while they are overseas. That depends on their availability to receive information and to make and to communicate a decision. It also depends to some extent on the nature of the decisions that might need to be made in the relevant period.
41. The attorneys advised the Tribunal that they each have arranged a global roaming facility on their mobile phone and will be accessible at all times by mobile phone. Each will also have access to email so that at all times at least one is available to make any necessary decisions. The documents filed with the Tribunal show that the attorneys regularly use email to communicate information, to consult and exchange views and to formulate decisions. While it can be difficult to contact a person by mobile phone and email, that difficulty is much the same whether the person is in a neighbouring suburb, interstate or overseas. Many guardians, attorneys and financial managers live in different locations from the person for whom they are making decisions. That is not by itself a disqualifying factor. In this case, the difference between the current availability of the attorneys and their availability during the relevant period is that none of them will by physically present in the ACT. We are not satisfied that the lack of a physical presence of an attorney in the ACT by itself, will significantly adversely affect Mrs Whyte’s interests.
42. The attorneys’ decision to place Mrs Whyte in respite care secures the provision of professional personal care services on a 24-hour basis, 7 days a week. If the placement proceeds, it is unlikely that any decisions about the provision of personal care services will need to be made in the relevant period.
43. Of more concern is the potential need for a decision about medical treatment. There was no suggestion that Mrs Whyte has any current medical issue specifically requiring consent for treatment. But it is clear from Dr J. Bromley’s report dated 31 March 2010 that Mrs Whyte has a number of health difficulties that require on-going management. There is always a risk in those circumstances that some incident may occur that leads to the need for consent to medical treatment. We note that health professionals have common law rights to provide urgent medical treatment without consent (see Section 32N of the G & MoP Act). Urgent treatment will be provided to Mrs Whyte regardless of whether the attorneys are here or overseas. When consent is required for non-urgent treatment, an attorney should ideally have immediate and straightforward access to treating health professionals to discuss the proposed treatment and also to the protected person to seek their views and wishes concerning the proposed treatment. The arrangements put in place by the attorneys in this case will enable access to treating health professionals but it is unlikely that the attorneys will be able to have any meaningful interaction with Mrs Whyte about what is proposed. The arrangements are not ideal but nevertheless, they should enable an appropriate decision to be made. The Tribunal is not satisfied that Mrs Whyte’s interests will be so adversely affected in the relevant period by virtue of this difficulty alone, that her wishes should be ignored and an order revoking the EPOA made.
44. Secondly, Mr Whyte’s application challenges the attorneys’ decision to accommodate his mother in a facility rather than in her own home. He says that the decision is contrary to his mother’s wishes. Further, he says that a move would be harmful to her condition and her welfare and that he fears her condition may worsen. His application expressed the view that the move was only for the convenience of his sister. At the hearing, he said that his mother was unhappy at the facility during the last placement, that she was left alone for long periods, that she was unduly restricted and that the unfamiliar surroundings were confusing for her. He indicated that he felt that insufficient consideration had been given to other possibilities to care for and support Mrs Whyte during the relevant period. He offered that he, or he and his wife together, should move to live with his mother for the six weeks of the proposed respite period. His application could be interpreted as questioning whether the attorneys have correctly applied the General Principles and seeking a direction from the Tribunal about whether the attorneys should proceed with their decision.
45. Reviewing the documents filed with the Tribunal and the information given during the hearing, the Tribunal notes:
(i)it seems to be accepted that Mrs Whyte said in the past that she wants to stay
in her own home. Ms Osborne referred to a clause in the EPOA suggesting that her wish was that she not be required to move away from her home “subject to medical advice of that necessity”. Mr Whyte said that she was unhappy in the facility previously, that she had unhappy memories about it and that she did not wish to return. Ms Osborne said that the previous experience of respite was not as negative as Mr Whyte believed. She referred to some things indicating that Mrs Whyte had some positive memories of the facility. She noted that Mrs Whyte was unwell when she moved to the facility immediately after discharge from hospital;
(ii)the PA ACT provided a report to the Tribunal about Mrs Whyte’s views in
relation to her accommodation. The report indicates that Mrs Whyte did not appear to understand “the situation”:
Mrs Whyte was unable to recall who visited her, be it family, friends and carers or how often these visited (sic) occurred.
During the discussion she was undecided in her actions, unable to locate appropriate light switches and had minimal concentration. Her answers did not pertain to the questions and she would lose track and her voice would trail off.
Mrs Whyte stated that she did not want to go to [the facility] for a holiday but did not appear to understand it was for respite only ... She stated that this was her home and she wanted to stay here.
The questions were paraphrased and we weren’t able to get definitive answers. .... different topics were introduced to give Mrs Whyte a break from the subject ... but that did not assist her to understand our questions.
When asked if she recalled being at [the facility] Mrs Whyte said that [the facility] was beautiful.
This report, at best, shows that Mrs Whyte is unable to clearly express her views currently - perhaps not surprising given the severity of her dementia. The report does lend support to the proposition that she has stated in the past that she wants to live in her own home. The Tribunal accepts that that is her wish.
(iii)the report of the PA ACT raises concerns about Mrs Whyte’s safety at home –
her inability to remember who visits her and how often indicates a vulnerability. The letter from Karen Rowlands, the case manager responsible for the delivery of the EACH/D package, also raises concerns about Mrs Whyte’s personal safety when she is alone in her home. The care package provides a carer 4 times a day each weekday and 3 times a day on weekends – in total, a period of 18 hours a week. The report indicates that at times Mrs Whyte unlocks her home after carers leave the house for the night. She has turned the heater on and her electric blanket on to the highest settings. The letter notes that it was Ms Rowlands who recommended that Mrs Whyte have a period of respite care. Mr Whyte said that Ms Rowlands’ concerns could be addressed if he lived with his mother while his sisters are away. That would certainly increase Mrs Whyte’s safety level but the Tribunal notes that it would not secure her safety when by herself in the short term, nor would it secure her safety on an on-going basis;
(iv)Dr Bromley’s report refers to an assessment undertaken on 31 March 2010.
Dr Bromley concludes that Mrs Whyte needs “full time dementia specific care for her safety in order to provide appropriate management of her health conditions.” The progress notes in the report state:
94 year old living alone with advanced dementia and dementia EACH package in place ... lots of family support ... cognitive impairment impacts upon her potential safety e.g. leaving the doors unlocked and open, poor nutrition, refusal for medication ... has had insufficiency fractures ... requiring strong analgesia now on no treatment at all.
Under the heading “recommendations”, Dr Bromley notes:
Really unable to answer questions with accuracy e.g. stated she went for a walk around the block; really fiddly with her food, did not eat any of the dinner which was heated up for her tonight but thinks she might eat the dessert ... usually does not eat dinner with the carer present...full meal in the fridge not eaten; carer says she eats many small containers of tinned fruit ... many hours where she is unsupervised with house unlocked and no ability to judge friend or foe. Dementia advanced, really only safe in full time dementia specific care.
Dr Bromley’s report indicates that there is a real concern about Mrs Whyte’s safety and management at home on an on-going basis. She needs full time care and support relevant to the needs that arise from her physical and mental condition.
46. The decision-making principles and the General Principles both emphasise the primacy of the wishes of the protected person. But Clauses 1.6(4) and (5) of the General Principles make it clear that when attorneys make decisions, the needs of the principal must be taken into account as well as their wishes, and that decisions must be made in a way that is consistent with the individual’s proper care and protection. The decision-making principles also make it clear that a decision-maker exercising a function under the G & MoP Act should not follow the protected person’s wishes if to do so would significantly adversely affect his or her interests.
47. The Tribunal is satisfied, on the basis of the information provided by the PA ACT, Ms Rowlands and Dr Bromley, that the attorneys’ decision to move Mrs Whyte to a facility properly takes into account her needs and is consistent with her care and protection. It cannot be described as a decision made for the convenience of the attorneys. To direct the attorneys to allow Mrs Whyte to continue to live in her home or to not place her in the facility would, on the basis of those reports, significantly adversely affect her interests. There is no basis for the Tribunal to interfere with the decision.
48. Balancing the wishes and needs of a person in a way that secures their care and protection with the minimum of interference with their self-determination and dignity is a very difficult exercise. This case illustrates how challenging the role of a substitute decision-maker can be. The dismissal of Mr Whyte’s application does not imply a criticism of the application in any way. He has highlighted the need for substitute decision-makers to be accountable for their decisions, to discharge their responsibilities in a considered and respectful way and with due regard to the principles set out in the POA Act 2006 or the G & MoP Act. In this case, the Tribunal is satisfied that the attorneys have undertaken their role responsibly and have reached an appropriate decision.
…………………………………..
Ms Linda Crebbin
General President
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: GT 24 of 2010
APPLICANT: DAVID WHYTE
RESPONDENT: JOAN WHYTECOUNSEL APPEARING: N/A
SOLICITORS: APPLICANT: KATHRYN HEUTER
RESPONDENT:
OTHER:MR B MCLEOD for the Public Advocate
MS T LEIPER for the Public Trustee
TRIBUNAL MEMBER/S: Ms L Crebbin, General President
Mr H Hird, Member
DATE/S OF HEARING: 6 April 2010 PLACE: CANBERRA
DATE/S OF DECISION: 6 April 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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