JW
[2007] WASAT 252
•5 OCTOBER 2007
JW [2007] WASAT 252
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 252 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:940/2007 | 5 JULY 2007 | |
| Coram: | MR J MANSVELD (MEMBER) MS F CHILD (MEMBER) DR E LEIPOLDT (SENIOR SESSIONAL MEMBER) | 5/10/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Guardians reappointed Application for the appointment of an administrator dismissed | ||
| B | |||
| PDF Version |
| Parties: | JW |
Catchwords: | Guardianship and Administration Review of guardianship order Application for the appointment of an administrator Need for guardian Complex health conditions Need for certainty of authority for medical consent Less restrictive means for the management of pension income No need for administration order |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 64, s 90 |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JW [2007] WASAT 252 MEMBER : MS F CHILD (MEMBER)
- MR J MANSVELD (MEMBER)
DR E LEIPOLDT (SENIOR SESSIONAL MEMBER)
- Represented Person
Catchwords:
Guardianship and Administration - Review of guardianship order - Application for the appointment of an administrator - Need for guardian - Complex health conditions - Need for certainty of authority for medical consent - Less restrictive means for the management of pension income - No need for administration order
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 64, s 90
Result:
Guardians reappointed
Application for the appointment of an administrator dismissed
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Category: B
Representation:
Counsel:
Represented Person : Self-represented
Solicitors:
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 On review of a guardianship order, the State Administrative Tribunal reappointed the members of the foster family of a former ward as his limited guardians. The functions of the guardians were to consent to health care and services on his behalf. The young man had severe physical disabilities and an intellectual disability. He is dependent on carers for all aspects of his care, and the Tribunal was told that his physical health could deteriorate rapidly and that he was frequently hospitalised. In these circumstances, the Tribunal confirmed that there was a need for certainty about who had authority to make health care decisions for him.
2 The original order appointing the guardians had been made in May 2007 and set for review by 30 June 2007 as there was some uncertainty whether the funding for the care of the young man would continue if the carers were formally appointed his guardians because of the application of the "Family as Paid Carers Policy" by the Disability Services Commission.
3 On review of the order, this matter had still not been resolved but the guardians were willing to be appointed and the grandmother of the young man, the original applicant from the Department of Child Protection, and the Public Advocate all supported the reappointment of the guardians. At the time of the hearing review, the Tribunal was told that the policy was under review and an application had been made for an exemption on the grounds of geographic isolation and that there was no alternative placement available for the young man.
4 As the guardians were willing and the Tribunal considered them suitable for appointment, the appointment of the Public Advocate was not available under the legislation.
5 The application for the appointment of an administrator was dismissed as the Tribunal decided that the systems in place for the management of and accountability for the young man's pension, which was his only income, were sufficient and there was no need for a formal order to be made.
Background
6 These reasons relate to a review of a guardianship order and the hearing of an application for the appointment of an administrator in
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- respect of JW (the represented person). The original applications for the appointment of a guardian and administrator were made by a social worker from the Department of Community Services (now the Department of Child Protection) as the represented person was leaving the wardship of the Director General of that department. The represented person had been made a ward when he was aged three years and had been in the care of a foster family since that time. During the time of the represented person's wardship, the Director General had the legal authority to consent to health care on his behalf but when his wardship expired, it was unclear who had legal authority to make these decisions.
7 The Tribunal determined that in view of the precarious nature of the represented person's health, there was a need for certainty about who had the authority to make health care decisions on his behalf. Following a hearing on 15 May 2007, the former foster mother and foster brother were appointed limited guardians (the guardians) to consent to health care on behalf of the represented person. The order was to be reviewed by 30 June 2007 because there was some concern that the appointment of the guardians may have an impact on the funding received from the Disability Services Commission (DSC) for the care of the represented person. The guardians and the original applicant had been given differing information about the application of the "Family as Paid Carers Policy". This policy is understood to be that DSC will not pay family members for caring for a disabled relative. Under that policy, an appointed guardian is within the definition of a family member even if that person is not a relative of the person for whom care is provided.
8 As the funding for the care of the represented person from the Department of Child Protection was to continue for a period, the order appointing the guardians was set for review by 30 June 2007 to allow for clarification of the funding issue, and for an application to be made for an exception to the application of the DSC policy if it did, in fact, apply in these circumstances.
9 At the review hearing, the Tribunal was advised that the application for an exception to the policy had been sent to DSC from the Department of Child Protection on 21 June 2007 and was being considered, but that at the time of the review hearing, DSC had not had sufficient time to determine it.
The review
10 The represented person, the guardians, a family friend who spoke in support of the guardians, the grandmother of the represented person, and
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- representatives of the Public Advocate, DSC and the service provider agency all attended the review hearing.
Relevant legislation and principles to be observed
11 The principles to be observed by the Tribunal when dealing with proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act) are set out in s 4. Those principles provide that in dealing with any proceeding commenced under the GA Act, the primary concern of the Tribunal is the best interests of the represented person. The principles include the presumption of capacity of persons coming before the Tribunal, the principle of least restriction possible in any orders made and the obligation to seek to ascertain the wishes of the represented person.
12 On review of any order made under the GA Act, the Tribunal may confirm, amend or revoke an order or appoint a new guardian (see s 90).
13 To make an appointment of a guardian originally or on review, the Tribunal must be satisfied that the person is a person for whom such an order can be made, that is, that he:
"(a) has attained the age of 18 years;
(b) 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." (s 43(1))
14 To appoint an administrator, the Tribunal must be satisfied that the represented person:
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
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- (b) is in need of an administrator of his estate." (s 64(1))
15 The GA Act sets out at s 44 who may be appointed a guardian:
"1. A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal -
(a) will act in the best interests of the person in respect of whom the application is made;
(b) is not in a position where his interests conflict or may conflict with the interests of that person; and
(c) is otherwise suitable to act as the guardian of that person.
(2) For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible -
(a) the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b) the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c) the wishes of the person in respect of whom the application is made; and
(d) whether the proposed appointee will be able to perform the functions vested in him.
(3) Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4) The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
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- (5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act."
16 Similar provisions apply to who may be appointed an administrator.
Evidence and findings
Capacity
17 At the original hearing, medical and social work reports before the Tribunal state that the represented person has a diagnosis of cerebral palsy. The general practitioner states in his report that the represented person has a "major cognitive impairment, cerebral palsy, epilepsy. [Is] unable to speak and cannot manage [his] own airway". His condition is described as static. He considers the represented person incapable of decisions about his personal health care, his living situation and his financial affairs, or of executing an enduring power of attorney. The doctor describes his condition as one of "total dependency".
18 The Tribunal is satisfied that the represented person is a person for whom a guardian and an administrator can be appointed.
Need
19 The need identified for the appointment of a guardian is the need for certainty as to who has authority to decide medical treatment for the represented person. The Tribunal heard that he is vulnerable, because of his health conditions, to rapid deterioration in his health and can be hospitalised at short notice. Because of that vulnerability and the history of the Director General giving formal consent for medical treatment whilst the represented person was a ward, it was considered that there should be no ambiguity about who now had authority to make health care decisions for him. On review, that position has not changed. Because of the expiry of his wardship, the represented person is also to receive services from DSC and from an agency service provider, and so there is a need for a guardian to determine the services to which he should have access. There is no challenge to this position on review; the real question before the Tribunal is who should be appointed, given the uncertainty about the funding for the care of the represented person if his guardians are reappointed.
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20 In relation to the need for an administrator, the evidence is that the represented person has a pension income which is paid into an interestbearing bank account and is managed by his guardian. According to the representative of the care agency, under the funding agreement for his care, there is a notional allocation of 25% of the pension as payment for board and lodging. The Public Advocate submits that the balance of unallocated funds is a small amount of money and that the guardians have shown in the past that they are accountable and have managed the funds of the represented person in his best interests, and the informal arrangement could continue. The grandmother and the representative of DSC also support the continuation of the informal arrangement for management of the pension of the represented person.
21 The represented person has no other assets or income. Funding for his care is managed by a care provider agency and these funds do not form part of his estate.
22 The Tribunal accepts the submissions of the guardians and others who attended the hearing that the informal arrangements for the management of his pension meet the needs of the represented person and there is no need for an administrator to be appointed.
Suitable appointment of a guardian
23 The applicant from the Department of Child Protection at the original hearing, the grandmother of the represented person, the Public Advocate and the family friend who attended the review hearing all support the suitability of the guardians for reappointment. The grandmother describes the guardians as "the only family [the represented person] has ever known". She expresses complete satisfaction in the care provided to her grandson. Her only concern expressed at the original hearing is that the represented person might be moved from their care.
24 The family friend attended the hearing in support of the guardians and states that he has known the family and the represented person in both professional and personal capacities. He speaks highly of their long-term commitment to the represented person, their exemplary care of him and their devotion to his best interests.
25 The Public Advocate supports the view that the guardians continue to play the role as decision-maker for the represented person as she considers the guardians "very suitable" for appointment, and while the Public Advocate is ready to be appointed should this be required, she does not support that appointment.
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26 The family friend advances the view that the guardians are suitable for appointment, are willing to be appointed and there is no conflict of interest in their appointment. He challenges the view that they are paid for the care of the represented person:
"These people do not get paid to care for [the represented person]. They have never been paid to care for [the represented person]. They have recovered by way of reimbursement costs associated with his care. That is now divided between his social security income and whatever DSC in its wisdom may or may not make available to them under its various provisions. These two people and the whole [name deleted] family have never been paid to care for him. He is their child in every sense of the word. It's a fostership. They are absolutely committed to him."
27 He questioned whether there was a conflict of interest:
"I have, since I met with them after the last hearing, examined every way I could to establish a conflict of interest under either Act, this one or the DSC, and a conflict of interest does not exist, because with [the service provider agency] being between DSC and these people, the necessary safeguards are in place. If they were receiving the money direct, then one may arrive at a point where one could suggest that at least in principle there was the possibility of a perceived conflict of interest, but [the represented person]'s grandmother knows that that has never been the case. I know on my basis of knowing them ever since - almost ever since they got this boy in their lives, the only interest these people have is giving this young man the highest possible quality of life."
28 The guardian states that since the original order, she received a letter advising that the interim funding from the Department of Child Protection had ceased. It is unclear whether payments will be made in the future from DSC. Despite the lack of clarification about the funding arrangements, both guardians are willing to be reappointed.
29 The guardians' position remains the same as advanced at the original hearing. They consider that they are best placed to make health care decisions for the represented person. The Tribunal accepts this to be the case. The represented person's health can deteriorate rapidly and he is hospitalised frequently. The guardians understand the complex nature of his health conditions and are familiar with his medical history.
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- They do not leave him alone in hospital and are immediately available should consent be required. They submit that because of the nature of his conditions, he is in need of advocacy in the health care system. They gave examples in the past when this was needed; when an apnoea monitor was turned off while the represented person was in hospital and their need to refuse treatment which was experimental in their view, and which may have placed the represented person at unnecessary risk.
30 The Tribunal accepts that it is in the best interests of the represented person that the guardians act as decision-makers and advocates for him in health care matters.
31 In relation to the funding of the care of the represented person, the foster brother (and joint guardian) advances the view that the situation of the represented person meets the criteria for exceptional circumstances to be determined by DSC (so that funding will continue), both in the geographic isolation of the family and the lack of alternative forms of care for the represented person.
32 It is put that the appointment should be made by the Tribunal and if a decision is made by DSC to terminate the funding, the guardians can seek review of the order.
33 The role of the Tribunal is to determine matters consistent with the GA Act. Section 44(1) sets out the factors which the Tribunal must consider (see par 15).
34 The joint limited guardians are willing to be appointed. The Tribunal considers them suitable for appointment. All the evidence supports the conclusion that they have at all times acted in the best interests of the represented person. Because of his disabilities, the represented person is a highly vulnerable young man and the guardians' understanding of and advocacy for his needs is apparent. It is clear that he has derived great benefit from the family life they have provided him. We accept the submission that they are not in a position of conflict. The nature of the funding arrangement for the care of the represented person is not resolved; the question of whether the guardians are remunerated or reimbursed the cost for his care has not been established. What is clear is that they are not in a professional relationship with him; they regard their relationship as one of a family. We accept the contention of his grandmother that they are the only family he has ever known.
35 The GA Act provides for a statutory preference of individuals involved in the life of the represented person to be appointed that person's
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- guardian rather than the guardian of last resort (see s 44(5)). The Tribunal can only appoint the Public Advocate guardian where there is no other person suitable and willing to be appointed. Since the guardians are willing to be reappointed and are suitable for appointment, the appointment of the Public Advocate as guardian is not available to the Tribunal unless a joint appointment is made. In our view, this is not necessary in the circumstances of the represented person.
Orders
1. [The limited guardians] are reappointed with the following functions:
(i) to consent to any treatment or health care of the represented person; and
(ii) to determine services to which he should have access.
2. Order is to be reviewed in five years.
3. Application for the appointment of administrator is dismissed.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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