JW and NBH

[2006] WASAT 88

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   JW and NBH [2006] WASAT 88

MEMBER:   MS J STANTON (SENIOR SESSIONAL MEMBER)

HEARD:   16 FEBRUARY 2006

DELIVERED          :   28 MARCH 2006

FILE NO/S:   GAA 2276 of 2005

BETWEEN:   JW

Applicant

AND

NBH
Represented Person

Catchwords:

Guardianship ­ Accommodation and service ­ Need for independent decision­maker

Legislation:

Guardianship and Administration Act 1990 (WA), s 4.2, s 43, s 43(1)(b)

Result:

Appointment of Public Advocate for one year

Category:    B

Representation:

Counsel:

Applicant:     N/A

Represented Person       :     N/A

Solicitors:

Applicant:     Shaddicks

Represented Person       :     N/A

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. NBH is a 78­year­old woman who had been living in her own property in Busselton, with her friend/partner living next door.  She is currently in temporary respite care in Manjimup following her friend's illness and as a result of arrangements made by her daughters on advice from Busselton Hospital.  Decisions need to be made about where and with whom NBH should live and whether she should have access to services, particularly if she were to return to her own home.  Her daughters sought to become her guardians, and her friend, JC, and the social worker involved, preferred the Public Advocate because of differences in view of where NBH should reside.  While recognising that all parties wanted what they believed to be in NBH's best interests, the Tribunal appointed the Public Advocate for a period of five years to ensure that all possibilities were considered, particularly whether NBH would be better off at home or in a Busselton facility rather than in Manjimup.

Introduction

1. NBH had been placed in respite accommodation in Manjimup following the admission of her friend/partner, JC, to hospital in difficult circumstances.  At the time, NBH lived in Busselton in a park home and was assisted by JC.  The application was made by her daughters, JW and LC, who believed their mother could no longer live independently and that she was best placed in a hostel, possibly in Manjimup where one of the daughters lived.  The applicants were assisted by Shaddicks Lawyers, but essentially made their own submissions, and the solicitors made it clear they were only assisting ­ not acting for ­ the daughters.  JC also indicated in writing that he would like to be guardian, although he did not make an official application, and during the hearing stated he would prefer an independent decision­maker to be appointed.

2. The Tribunal must decide whether NBH is incapable of making her own reasonable decisions and whether she is in need of a guardian, and if so, who that guardian should be and under what terms.  It must also consider whether there are less restrictive alternatives to a guardianship order.

1. The hearing was conducted by video and telephone links.  Present on video were: NBH; JC, friend and partner; JW and LC, daughters (LC by telephone from Victoria); IG, lawyer from Shaddicks Lawyers, and KC, social worker.

Capacity

1. The Tribunal must consider the issue of capacity prior to making orders relating to an adult person.

2. Section 4.2 of the Guardianship and Administration Act (1990) (WA) (GA Act) states:

   "(b)     Every person shall be presumed to be capable of ­

   (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."

3. On hearing any guardianship application, the Tribunal must be satisfied that the requirements of s 43 of the GA Act apply and that, from the evidence provided, the represented person is incapable within the terms of s 43(1)(b).

Evidence  

1. In making its judgment, the Tribunal relied upon the following evidence.

2. Dr L, consultant geriatrician, interviewed NBH by video on 25 January 2006 and reported poor memory, cognitive impairment and vascular dementia, and noted that an earlier ACAT assessment had assessed a significant cognitive impairment.  He was of the view that the impairment affected her planning, her ability to perform arithmetic, manage her financial affairs and remember people around her.  He noted further that "it would appear that she is not able to live independently but she could live in a supervised environment, or with support.  Although she cannot live on her own, she is able to decide where she should live in terms of which town she wants to live in".

3. Dr C advised that NBH had advanced dementia and that she requires prompting and supervising for all activities of daily living.  At the time, she scored 12/30 on a MMSE, indicating time and place disorientation, poor concentration and problem­solving abilities.  He advised that she was better suited to a low­level dementia­specific residential aged­care facility.  While he noted NBH had impaired hearing, he noted the CAT scan showed evidence of several strokes and vascular dementia.

4. The manager of the facility where NBH was in respite care indicated she was confused and not able to complete instructions, and believed she needed a guardian to make appropriate decisions.

5. KC, a social worker, believed a guardian was needed but was concerned that NBH had a long association with, and friends, in Busselton, and that her wishes should be taken into account when decisions were being made, and that options for returning to her home needed to be looked into.  She was concerned that the views of JC may not be considered if NBH's daughters were appointed, and noted that JW had not wanted JC involved in the proceedings of the Tribunal in the first instance and that the trust that previously existed had been damaged.  She also noted that initially JC had not been allowed to visit NBH in Manjimup and was then not allowed to take her out in his car.  NBH's daughters indicated this was because they were concerned their mother would prevail on JC to take her home and he would find this difficult to resist.

6. KB, a social worker from Manjimup, ascertained that NBH would like to return home but did not appear willing to accept services to support her. He noted a degree of disquiet amongst the parties involved and questioned whether it would be prudent to appoint an independent guardian.

7. JW, daughter of NBH, provided a written submission describing events leading up to NBH's admission to respite care and noted that her mother needed full­time care and, in her opinion, did not fully understand the issues.  She indicated she would be prepared to look at all options but was concerned her mother would not accept outside help if she returned home and that she may wander.  She was prepared to consider options in Busselton but noted that she lived in Manjimup and could more easily visit and take her mother to appointments if she remained in her current accommodation.  She believed her mother had further deteriorated in the last couple of months.

8. LC, daughter of NBH, lives in Victoria but had visited twice in the past year.  She believed the two daughters' knowledge of their mother was based on interaction over a lifetime.  She had concerns for her mother's security if she returned to her previous home but was happy to consider options that provided outings and appropriate activities.  She believed she and her sister could make decisions together.

9. JC lived next door and believed he could see to NBH's needs and let her daughters know if there were any problems.  They spent a lot of time together and they had planned to get married but had not told her daughters.  He indicated they had a good relationship with NBH's daughters but when he had a heart attack before Christmas, NBH was, in his view, traumatised.  He noted that NBH's short­term memory was declining but indicated his willingness to assist with care and support.  He would prefer NBH to be in Busselton where she had lots of friends and would prefer an independent body to make the decisions about guardianship issues.

Findings

1. The Tribunal is satisfied that s 43 of the GA Act is met and that NBH is a person for whom a guardianship order can be made.

2. It is further satisfied that NBH has a need for a guardian to be appointed.  She is in respite care in Manjimup and a decision needs to be made about where and with whom she should live, and if she were to return to her home, what services she should access.  Her daughters are willing to make these decisions on her behalf and have indicated some willingness to look at options in Busselton.  However, JC and the social workers involved indicated some concerns about whether her wishes would be properly taken into account and whether all options including returning home with support and accommodation in Busselton would be canvassed.  They were of the view, as was Dr L, that she could express where she wanted to live and believed that an independent guardian should be appointed to facilitate the decision­making process.

3. NBH was not able to express her views, although it was indicated by KC that she has indicated her preference for Busselton in the past.   Dr L also indicated that she was able to state in which town she preferred to live.

Conclusion

1. The Tribunal believes that the evidence showed NBH was a person for whom an order could be made and that her interests would be served by the appointment of a guardian as decisions needed to be made.  She is not able to make the decision for herself as her ability to consider the consequences of her decision is compromised by her decision­making disability.

2. A guardianship order appointing the Public Advocate was made to ensure appropriate decisions were made in NBH's best interests.  While her daughters, JW and LC, were willing to make decisions and to look at options for their mother, it appeared that there were concerns from other interested parties particularly, JC and to some extent KC, the social worker, that they may not give sufficient consideration to options in Busselton where NBH lived prior to going to respite care in Manjimup.  The Tribunal believes a one year order is appropriate to settle accommodation and service issues.

Orders

1. The Tribunal orders that:

   1.The Public Advocate be appointed limited guardian of the represented person with the following functions:

   (i)to decide where the represented person is to live, whether permanently or temporarily;

   (ii)to decide with whom the represented person is to live; and

   (iii)to decide what services the represented person should access.

   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 be reviewed by 16 February 2007.

I certify that this and the preceding [22] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS J STANTON, SENIOR SESSIONAL MEMBER