JT and NB & CS
[2005] WASAT 156
•7 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIAN AND ADMINISTRATION ACT 1990
CITATION: JT and NB & CS [2005] WASAT 156
MEMBER: MS D DEAN (MEMBER)
HEARD: 21 JUNE 2005
DELIVERED : 7 JULY 2005
FILE NO/S: GAA 745 of 2005
BETWEEN: JT
Proposed represented person
AND
NB & CS
Applicants
Catchwords:
Applications for guardianship and administration - Alcohol related brain damage - Frontal lobe impairment of judgment - Lack of insight
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 119(3)
Result:
NB and CS are appointed joint limited guardians
NB and CS are appointed joint plenary administrators
Category: B
Representation:
Counsel:
Proposed represented person : Self-represented
Applicants: Self-represented
Solicitors:
Proposed represented person : Self-represented
Applicants: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Background
JT is a 57 year old divorced woman with two children NB and CS. JT lives alone in her own home. She is supported by her son CS, and daughter NB. In addition JT has volunteer carers who come to her home several times a week and provide some meals, cleaning and assistance with shopping.
JT has had multiple admissions to hospital with complications from excessive alcohol consumption. She has no insight into the negative part alcohol plays in her life and continues to deny that she drinks.
On 19 January 2004, JT executed an Enduring Power of Attorney (EPA) in favour of her children NB and CS. When intoxicated JT threatens to revoke the EPA.
On 2 April 2005 JT was admitted to hospital after five days of diarrhoea and "reduction of mobility" at home. She was reported to be spending most of her time in bed and to be unwilling to get up and shower. She had been found by service providers lying in bed covered in vomit and faeces.
JT was discharged from hospital on 5 June 2005. On 8 June 2005 she was intoxicated when visited by the carers and on 9 June 2005 she again was reported to be intoxicated, and unable to safely transfer from the bed. She was found by the carers on her hands and knees on the floor, incontinent.
On another occasion JT is reported to have fallen asleep while smoking in bed, setting fire to her mattress. JT was twice burgled while at home and was intoxicated to the point that she was oblivious to the event.
On 28 April 2005, JT's children made applications for administration and guardianship orders in respect of their mother. The applications referred to a long history of alcohol abuse which has escalated since JT's marriage breakdown some years ago. JT is "always intoxicated" and spends most of the time in bed. When intoxicated she is frequently incontinent of faeces and urine. Although not their role, the carers often clean up when JT is incontinent. It is reported that JT doesn't shower, is "often covered in vomit or faeces and urinates in bed".
Medical and para-medical reports state that JT has alcohol related brain damage, which limits her cognitive functioning. She is reported to be intelligent and capable when sober but her usual state is one of intoxication.
Written reports were provided to the Tribunal by JT's treating psychiatrist of 15 years, Dr OK, hospital medical officer Dr MB and hospital social worker CW. All of the reports stated that JT has no insight into her drinking problem and when intoxicated, which is her normal state, is incapable of making reasoned decisions in relation to her estate or major lifestyle decisions such as appropriate accommodation.
Hearing
The hearing was attended by JT, her children NB and CS, son in law SB, hospital social worker CW, hospital nurse MB and Dr OK, JT's treating psychiatrist.
In response to a misunderstanding as to what is required in making applications to the Tribunal, NB and CS each made separate, but identical, applications for both guardianship and administration orders. The Tribunal gave CS leave to withdraw his applications and heard the applications for guardianship and administration made by JB.
Guardianship
In respect of the application for guardianship, Dr OK reported that the layout of JT's house is not safe for her, particularly in relation to the swimming pool, which, if she fell into it when intoxicated, "could prove fatal". Dr OK believes that JT requires supported accommodation where she would have her meals prepared for her and supervision of, and reduction in, her drinking. Dr OK stated that he has informed JT that if she continues to drink she will be "dead in a couple of years". He believes that JT is incapable of making decisions about where she should live and is therefore in need of a guardian to make such decisions on her behalf. Dr OK further reported to the hearing that JT has very poor self-care, does not wash herself, cook or eat adequately. JT has severe anxiety, which affects her capacity to drive and to care for herself. Dr OK expressed concern that JT is a danger to herself and to others when driving. He reported that JT has limited mobility, degenerative disease of her peripheral nerves and muscle wasting. Her normal state is said to be one of intoxication although not so on the day of the hearing.
Others reported at the hearing that JT is rarely sober and, as a result of her daily level of intoxication, leaves herself vulnerable to exploitation, both physically and financially. Her home has been burgled twice while she was at home and neither time was she aware that she had been burgled. After the burglary in February 2005 JT agreed to move into an independent unit for the aged but before the move could be arranged her condition deteriorated to the point where she was assessed as not suitable for this type of accommodation. She has been assessed as now needing supported accommodation, which she rejects.
CW, a social worker, informed the hearing that the volunteer carers report that they feel overwhelmed and find it extremely distressing providing services to JT because of her poor self‑care, poor nutrition and general self and environmental neglect. They find that they are called upon to perform tasks well outside the range of ones they should be providing. Because of the difficulties experienced by the carers it is likely that the service will be withdrawn, making it impossible for JT to continue to live alone in her present accommodation.
All those at the hearing agreed that JT has deteriorated significantly both physically and cognitively since moving into her current home two and a half years ago. JT's son CS was most graphic in his description of his shock at his mother's deterioration in the time he was overseas and did not see her for 11 or 12 months.
JT informed the Tribunal that she is currently grieving the death of her father who died some weeks ago. She also reported to the Tribunal that the allegation that she had accidentally set fire to her mattress while smoking in bed, was not accurate. She explained that she had deliberately set fire to the mattress while sitting on the edge of the bed because she was angry and depressed about her divorce. She put the fire out with a glass of coke. JT also reported that she felt that her children do not love her and that they are more supportive of their father. JT stated that she doesn't think her daughter has the time to be her guardian. She said that she can not bear the thought of being forced to live in one room as she suffers from claustrophobia. She has in the past threatened suicide if forced to move.
Both JT's children reiterated their belief that their mother was in need of a guardian to make decisions about where she should live. Both described fruitless discussions with their mother trying to persuade her to reduce her drinking and to move into more suitable supported accommodation.
Administration
The Tribunal had written information and heard evidence from CW who stated that when sober JT was capable of managing day‑to‑day budgeting decisions but history had shown that, unless in a supervised environment, JT drank heavily on a daily basis, leaving her very vulnerable to financial exploitation. CW stated that when drinking, JT was "not able to make safe, reasoned decisions" and was in need of an administrator for her financial affairs.
This was confirmed by evidence from JT's children, CS and NB, who outlined their concerns about their mother's lack of insight into her own vulnerability, citing the example of JT giving her credit card PIN number to shopkeepers so they could take money out of her account to pay for her purchases. The carers have also reported that JT gives her PIN number to shopkeepers because she cannot get out of the car to make purchases. JT informed the Tribunal that she has only given her PIN number to one shopkeeper whom she trusts.
CS and NB reported that significant amounts of money are withdrawn from their mother's account without any explanation as to what it is being spent on or indeed if it is being withdrawn by their mother or by other parties who have her PIN number. They also reported that bills are not being paid including a $700 debt to the pool man and Hollywood Hospital are pursuing an outstanding debt by means of a debt collection agency.
NB managed her mother's accounts and finances while JT was in hospital and this worked well. JT confirmed that her daughter did well in this regard. When her mother was discharged from hospital NB handed back the management of her finances except for the payment of the rates, which NB feels she needs to manage to ensure that these are paid on time.
Dr OK informed the Tribunal that JT's behaviour in relation to the giving of her PIN number to others is indicative of the frontal lobe damage which she has. Dr OK and CW confirmed that it is impossible for NB and CT to operate their mother's finances with the EPA as when JT is intoxicated she threatens to revoke the EPA.
JT informed the Tribunal that she doesn't need help or support from others and referred to a letter written by her daughter to the banking ombudsman in relation to money, which had illegally been withdrawn from JT's account, as evidence of her capacity to manage her own affairs.
All those at the hearing, including JT, agreed that her house needs to be sold. Everyone except JT agreed that she should move into supported accommodation where she can receive the care and support that medical, paramedical professionals and family members agree she needs. JT stated several times at the hearing that she does not require any support and can look after herself.
Legislation
The principles to be observed by the Tribunal when making determinations in relation to guardianship and administration applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA).
These principles are:
"(2)(a) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b)Every person shall be presumed to be capable of ¾
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d)A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(f)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions."
Section 43 of the Act provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
"(1)…
(a)has attained the age of 18 years;
(b)is ¾
(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,
the Tribunal may by order declare the person to be in need of a guardian, …"
Section 119(3) of the Act provides the following hierarchy of persons who may consent to the medical and dental treatment of a person who is unable to consent on their own behalf.
"For the purposes of subsections (1) and (2), the person who may consent to treatment is the first in order of priority of the following persons ¾
(a)a guardian of the person needing the treatment;
(b)the spouse or de facto partner of the person needing the treatment;
(c)a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so;
(d)a person who is the nearest relative (other than the spouse or de facto partner) of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment;
(e)any other person who maintains a close personal relationship with the person needing treatment; or
(f)a person prescribed in the regulations."
Findings and reasons
In this case there are two applications for orders to be made, one for guardianship and one for administration. Although there are slightly different requirements to be satisfied in making these orders both depend on evidence in relation to the proposed represented person's capacity to make reasoned decision in relation to lifestyle and financial issues.
With regard to JT's capacity to make reasoned decisions in relation to lifestyle and financial issues, the Tribunal carefully considered the evidence provided in written reports from CW, senior social worker, Sir Charles Gairdner Hospital, Dr OK, treating psychiatrist and Dr JB, Sir Charles Gairdner Hospital, all of whom described JT as having frontal lobe damage as a result of long standing alcohol abuse and assessed her as not capable of making reasonable decisions in respect of her personal health care, living situation or financial matters. In addition, JT was said to have poor insight into her own limitations and denied that she drank alcohol at all. JT was said to have deteriorated markedly both physically and mentally in the last two years.
The Tribunal is satisfied from the evidence provided in the written reports and the oral evidence provided at the hearing that JT is a person for whom orders can be made.
The Tribunal noted the evidence from CW, hospital social worker that while in hospital JT "scored moderately well on the Occupational Therapy testing". It also noted that this was when JT was in a safe and non-drinking environment. There is no evidence to suggest that JT, who denies her drinking problem, is likely to discontinue her drinking unless in a controlled environment. "In a supervised environment it is likely that JT could manage day to day budgeting decisions but not longer term planning".
The Tribunal is satisfied that there is a need for a guardianship order as a decision needs to be made about appropriate accommodation for JT. Because of her continuing excessive consumption of alcohol JT continues to be at risk of further deterioration in her health as she neglects to eat, is incapable of maintaining herself or her home in a clean and healthy manner as evidenced by the reportedly filthy state of her self and her home and therefore requires the monitoring and support available in appropriate supported accommodation.
Although evidence was provided to the Tribunal about JT's neglect of self care and medical problems it is thought that these can and will be addressed when JT moves into supported accommodation where her alcohol intake will be supervised and reduced with a likely improvement in her cognitive functioning to the point that she may be able to make reasoned decisions in relation to her own needs. If future medical decisions are required the Tribunal is satisfied that this can be managed under s 119 of the Act.
From the information provided in the written reports and by the parties at the hearing, the Tribunal is satisfied that JT is unable to make reasoned decisions in respect of any aspect of her estate and is therefore, in need of an administrator to take on the role of decision maker in this regard. There are currently outstanding debts which need to be paid and the current home to be sold as well as ongoing estate management tasks.
Given that the guardians will determine suitable accommodation for JT, and as a result her drinking is likely to be curtailed, the Tribunal is of the view that shorter orders than the maximum five years are in order as JT's cognitive functioning may improve to the extent that at some point she may be able to resume making decisions in respect of some, or all, of her lifestyle and financial matters.
Decision
The Tribunal has carefully considered all the evidence provided in the written reports and at the hearing and is satisfied that JT is a person for whom orders can be made and that it is in her best interests that both guardianship and administration orders be made.
The orders of the Tribunal are:
1.That NB and CS be appointed joint limited guardians with the function of deciding where the represented person is to live, whether permanently or temporarily.
2.The Tribunal will commence a review of this order by 21 June 2007.
3.That NB and CS be appointed joint plenary administrators.
4.The Tribunal will commence a review of this order by 21 June 2007.
I certify that this and the preceding 38 paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER
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