K
[2023] WASAT 32
•28 APRIL 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: K [2023] WASAT 32
MEMBER: DR E MARILLIER, SENIOR MEMBER
HEARD: 13 APRIL 2023
DELIVERED : 17 APRIL 2023
PUBLISHED : 28 APRIL 2023
FILE NO/S: GAA 5433 of 2022
K
Represented Person
Catchwords:
Guardianship - Administration - Capacity - Less restrictive alternatives unsuccessful - Lack of insight into impact of diagnosis and degree of incapacity - Ongoing need for administrator and guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 64, s 84
Result:
Public Advocate re-appointed as limited guardian
Public Trustee re-appointed as plenary administrator
Category: B
Representation:
Counsel:
| Represented Person | : | Mr G |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
(The application was heard on 13 April 2023. An oral decision was delivered on 17 April 2023. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to improve clarity of expression and setting out).
Introduction
These are my reasons for decision in GAA 5433 of 2022, a review under s 84 of the Guardianship and Administration Act 1990 (WA) (GA Act) of orders made on 21 February 2022 appointing the Public Trustee as the plenary administrator and the Public Advocate as the limited guardian for accommodation, treatment and services decisions for K.
Evidence
I have read the Tribunal's file relating to the application which includes written submissions of:
•K and his friend A, and a set of suggested alternative accommodation options for K from his friend C;
•Professional reports from Dr CB (current GP) with attached Addenbrooke's Cognitive Examination (ACE) of 14 January 2022 (score 56/100), a letter to Dr CB from Dr ND (consultant geriatrician) of 15 June 2022 including ACE score 78/100 (with a sub-score on the mini-mental state examination (MMSE) component of 27/30); an mini-mental state examination from 7 December 2021 from Dr JP (a GP K saw once on that date with A), a SPECT CT result from Dr M of 24 August 2022, a Functional capacity assessment by occupational therapist (OT) LO of 12 August 2022, a neuropsychologist report of Dr AN of 9 September 2022, a service provider report from Executive Director of Nursing, MP of 6 January 2023 (MP having known K since 10 November 2021) and an Aged Care Assessment Team (ACAT) report of 10 August 2022; and
•Written reports, correspondence to K of 20 September 2022, and an update following a visit to K on 5 April 2023 from his delegated guardian at OPA, FB, and a report regarding estate management and K's current financial position from K's Trust Manager at the Public Trustee were also considered.
I have also heard the evidence given at the hearing by:
•K, his friends C and A and information from his legal representative, Mr G;
•K's brother T and sister-in-law R;
•FB and GW from OPA; and
•Trust Manager from PT.
Principles to be observed
In making a decision, the Tribunal must observe the following principles:[1]
•The Tribunal's primary concern must be the best interests of the person concerned;
•Every person is presumed to be capable of looking after their own health and safety; of making reasonable judgments in matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to his or her estate; until the contrary is proven to the satisfaction of the Tribunal;
•Orders may not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action;
•Where an order is made, it must be in terms that impose the least restrictions on the person's freedom of decision and action; and
•The Tribunal must seek to ascertain, as far as possible, the views and wishes of the person concerned.
What the Tribunal must be satisfied of
[1] GA Act, s 4.
Before appointing an administrator, the Tribunal must first be satisfied that the person for whom the order is sought 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, secondly, the Tribunal must be satisfied that the person is in need of an administrator.[2] Whereas, in this case we are reviewing the orders, we still must be satisfied of these issues to continue an order. Before appointing or reappointing a guardian the Tribunal must be satisfied, first, that the person for whom the order is sought is incapable of looking after his or her own health and safety or unable to make reasonable judgments in respect of matters relating to his or her person or in need of oversight, care or control in the interests of his or her own health and safety or for the protection of others. Secondly, the Tribunal must be satisfied that the person is in need of a guardian.[3]
Findings about mental disability
[2] GA Act, s 64(1).
[3] GA Act, s 43(1).
There is some dispute about this issue, however, the weight of professional evidence is overwhelming in this regard. In particular, Dr CB, who has known K since November 2021 and seen him 18 times in the last 12 months finds that K has dementia and is no longer capable of making simple or complex financial decisions, legal decisions or personal decisions due to this. He attaches an ACE of January 2022 where K scored 56 out of a possible 100. This is consistent with Dr ND's report. Dr ND is a consultant geriatrician with whom K scored 78/100 on the ACE in June 2022. It is also consistent with brain imaging results from August 2022 on a SPECT brain scan which showed hypoperfusion consistent with Alzheimer's disease. The reports of OT LO and neuropsychologist Dr AN are also notable for their findings regarding K's impaired short-term memory and executive function and his lack of insight into the impacts of these difficulties on his instrumental activities of daily living.
The ACAT report of August 2022 also demonstrates that concerns about K's ability to cope independently predate his admission to a Residential Aged Care Facility (RACF). It is consistent with the oral evidence of T and R who were the enduring attorney and enduring guardian at that time. T and R confirm the accuracy of the reports in Dr AN's report and the ACAT report that there were repeated hospitalisations including to Fremantle, Fiona Stanley and Armadale hospitals in late 2021 and a failure by K to cope at home. This was evident due to the presence of rotting food in his house, clothing strewn over the floor - a mixture of dirty and clean, his bills being unpaid or double paid. These observations are all consistent with the findings on the formal testing by professionals and the brain imaging.
A and K's attribution of all his difficulties with formal tests to not using his CPAP machine properly is unconvincing and would not have affected the results of MRI scans which predated his admission to RACF and the SPECT scan conducted in August 2022. Dr JP saw K once only and conducted the 30-point MMSE where K scored in the normal range. I note that this score predates all the subsequent evidence including the ACE conducted by Dr CB and by Dr ND. Additionally, the 100-point ACE conducted by the GP and a specialist geriatrician is more sensitive and specific for the diagnosis of dementia where 30-point tests are a screening tool only. A person with relatively preserved language skills may still score well on the MMSE subtest (as K did with Dr ND) and still meet diagnostic criteria for dementia as he also did, scoring below 83/100 for the whole test (K scored 78 in June 2022).
Dr AN's neuropsychology report notes the difficulty that can occur in a patient with dementia causing quite significant impairment as in K's case who has relatively preserved language - that this can make it difficult for others to appreciate significant impairment that he is experiencing due to his short-term memory loss and impacts on his insight, comprehension of his circumstances and executive function. Dr AN states '[K]'s verbal skills were a strength in his profile and in his presentation. This is noteworthy as his strong expressive abilities may, at times, result in others overestimating his abilities. That is, [K's] good ability to converse and interact with others is likely to mask the level of impairment within his other cognitive domains, where there are significant deficits in his capacity to process complex information, learn and recall novel material, and to utilise higher level thinking processes'.
I note that it was also the case that the version of events which K related to me regarding how he came to be in Armadale hospital and then his experience of being admitted to RACF was inaccurate as described by T and R, who were present at the time, and with the documentary evidence that was confirmed as accurate by T and R which Dr AN describes in her report (that is, the hospital discharge summaries). I am satisfied that K's understanding of his condition and the events which led up to his admission is inaccurate and is now a frequently repeated version of events which has been accepted by others without reference to collateral contemporaneous history or the evidence of others present at the time.
I do not accept K and A's view that K has not had a functioning CPAP throughout the last 17 months (I note that he has had a CPAP machine and the assistance of staff at the RACF to use it) and that this is the real reason that he has been unable to do well in diagnostic tests or that it would cause the level of disability observed by appropriately qualified specialists including a geriatrician, an OT and a neuropsychologist all of whom understood, as they undertook independent assessment of K, that the question of his capacity was highly contested. These assessments occurred over a range of dates and K was specifically assessed for his engagement, effort and attention while being tested.
I find that K has dementia because formal testing by appropriately qualified specialists, brain imaging and observed real world behaviours are all consistent with this. Dementia comes within the meaning of a mental disability as defined in the GA Act.
Findings about capacity
Secondly, I have considered the issue of capacity, starting from the presumption that every person has the ability to make reasonable judgments in relation to their finances and their person and then considering whether the evidence before the Tribunal is sufficient to rebut that presumption in K's case and positively establish that K is unable to make such reasonable decisions.
As with the diagnosis, there is some dispute about this issue, but for the reasons given earlier I prefer the evidence of the neuropsychologist, specialist geriatrician and previous enduring guardian and attorney regarding K's cognitive function and how it affected him before he was admitted to a RACF and now. I do not accept the nonexpert opinion of A or K. K cannot be a reliable witness regarding his own abilities due to his lack of insight into the magnitude of the impact of his short-term memory loss (which he does acknowledge) along with a diagnosis of early dementia.
I note that the evidence before the Tribunal includes that prior to his admission to the RACF, K had episodes of getting lost in the community (K admitted this in the hearing). K had problems maintaining a hygienic home and adequate nutrition, as noted in the ACAT report, and keeping track of his medication. In the OT and neuropsychology reports, and in his oral evidence to the Tribunal, K's lack of understanding of his own diagnoses and medication was obvious.
This included denying he had any lung problem and that he was on any medication for his lungs, but with prompting he acknowledged he does have an inhaler he uses every day (as but one example of the multiple medications he is on and where he does not appear to know that he is on them or why).
Because of his mental disability K has had difficulty paying his bills prior to the appointment of an administrator as per the evidence of his previous enduring attorney and the ACAT report. He has a complex estate including a self-managed super fund and a trust requiring the assistance of an accountant. He currently owns a home which may need to be sold to fund a refundable accommodation deposit and his acknowledged short-term memory loss and lack of insight into his care needs means K cannot and will not make these arrangements for himself.
Because of his dementia K has not been able to, and remains unable to, understand his diagnoses, medication and care needs, and to pay bills or manage his estate to meet his needs, and therefore in this case the presumption is rebutted by the evidence. I am satisfied that K is unable to make reasonable decisions in relation to his estate and his person.
Findings about need
In determining whether K is in need of an administrator or a guardian, the Tribunal must first consider whether his needs can be met in any way that is less restrictive of his freedom of decision and action than a formal appointment.
K's complex estate and care needs mean he is in need of someone to: operate bank accounts and pay bills (which he was not managing in 2021), to sell property to raise the bond for the RACF which he lacks the insight into his care needs and the executive function to complete, as per Dr CB and Dr AN's reports, to assist in legal proceedings such as those before the Family Court regarding contact with his youngest son, where C has been assisting informally, and where conciliation processes are currently ongoing (Mr G informs me K has been successfully self-representing in that forum, but C indicated she has been completing the paperwork, and that due to a recent error (completing an incorrect form) there is now some additional complexity), and to arrange accommodation and support services.
There are major decisions which may go against K's preferences, and these cannot be made without the legal authority conveyed by Tribunal orders.
I have considered whether there is any less restrictive means of meeting K's needs than a formal appointment and I am satisfied, on the evidence before me, that there is none.
Alternatives have been tried but without success - the enduring powers of attorney and guardianship made by K on 18 November 2014 appointing T and R were revoked in early 2022 as it became untenable and damaged the relationships due to K's lack of insight into his needs and resentment of T for making the necessary arrangements based on the medical advice.
I note T's evidence that, in fact, those arrangements to admit K to the RACF were made after they had visited the facility together and at that time K had indicated his support for T making those arrangements.
As there is no less restrictive means of meeting K's needs than a formal appointment, I am satisfied that he is in need of an administrator to make all financial arrangements, including but not limited to finalising the superannuation and trust funds, tax and pension arrangements, and managing K's estate to meet his care and maintenance needs.
K is also in need of a guardian to make personal decisions, including around medical treatment, noting K's short-term memory loss has profoundly impacted his ability to recall his own medical conditions and treatment; accommodation decisions as his lack of insight into his care needs and the costs of meeting them; support services so that options outside the RACF can be explored and considered; and to assist in relation to the Family Court matters, noting the informal support by C and the difficulties that she has explained she and K experienced in identifying the correct forms to complete.
The views and wishes of K
The GA Act requires the Tribunal to as far as possible, seek to ascertain the views and wishes of the person concerned in this case, K, as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
The Tribunal has been able to ascertain that K's views and wishes are to get to see his youngest son more often and regularly, to return to live in his home and to have more freedom. These wishes have been consistently expressed by K in his oral evidence to me and in his discussions with his guardian, his legal representative, his friends and the independent professionals who have assessed him.
However, in all of the circumstances I am satisfied that it is not in K's best interests or consistent with the weight of the evidence, to follow those views and wishes in their entirety (that is, to revoke the existing appointments of an administrator and a guardian) in determining this application, other than to try to make orders which will give him the best chance of achieving better access to his youngest son and accommodation and services which are affordable within his means, and permit him as much freedom as is compatible with his impaired cognitive function.
The scope of the order
I am satisfied that the range of functions an administrator needs to carry out makes a plenary order appropriate. I note the importance of K's relationship with his youngest son and therefore continue the current gifting authority of $500 per annum.
I am satisfied that a limited guardianship order will be sufficient to meet the needs of K, for an appointment to be made with those functions limited to deciding where K shall live and with whom, deciding medical treatment decisions, deciding which services K should have access to and to assist him in his Family Court action.
Who should be appointed?
The only candidate for appointment as administrator is the Public Trustee.
In terms of who should be appointed as the guardian, K's friend C indicated that she might be willing to be appointed as his guardian, particularly in relation to the Family Court matters. Section 44 of the GA Act sets out the considerations for the Tribunal regarding who may be appointed as a guardian. They must be of or over the age of 18. They must have consented to act, and they must, in the opinion of the Tribunal, be someone who will act in the best interests of K, is not in a position where their interests conflict with his and is otherwise suitable to act as guardian. In assessing that last criterion, I need to take into account the desirability of preserving existing relationships, the compatibility of the proposed appointee with K and with the administrator, who in this case we know will be the Public Trustee, the wishes of K and whether or not the person will be able to perform the functions vested in them.
I note C's support to K and motivation to continue support in the Family Court. However, I also note the challenges which she has acknowledged for her and K in identifying the correct forms to complete. I note K's social isolation and the damage to supportive relationships which occurred when his brother T and sister-in-law R were acting as the enduring attorney and guardians and had to make decisions that K disagreed with due to his lack of insight.
The impact of the well-meaning, but misguided reliance by those who have become friends of K's after his admission to RACF on their own impressions rather than the clinical assessments of qualified professionals and the ignorance of the events which led up to K's admission in the making of orders appears to have been problematic in this case.
For example, after the independent OT, neuropsychology and geriatrician reviews between June and September of 2022, the guardian informed K, verbally and in writing, of the results, and the conclusion that arose from those reports, that, therefore, he could not safely return to live independently at home and could not afford the cost of 24/7 inhome care. The guardian offered services to explore alternatives, but K refused to engage as he was so sure he would be found to have capacity at this review and that orders would be revoked. K's legal representative has informed me that K describes his friends as having given him a 'shot in the arm' and 'given him heart'. I accept C's evidence when she says that she has been trying to help K see he may not be able to live independently, and her desire to ensure that the Tribunal is aware that her views and actions should be assessed separately from that of others.
However, I also note the report of the Public Advocate's delegated guardian regarding her recent visit just over a week prior to the final hearing where K made no mention of C when asked if he ever has visitors and when asked about his dealings with the Family Court.
On balance, I am not satisfied that it is in K's best interests to appoint C for any functions as the guardian. I believe it poses a significant risk to one of the few existing supportive relationships that he still has. I am also very cautious about appointing someone where K appeared not to recall her involvement in his life when she was not present. I also note the difficulties which C has acknowledged that she and K have experienced in navigating the Family Court, which I am informed by GW is a complex setting. Given that K has a profound wish to achieve outcomes in the Family Court that permit him more frequent contact with his youngest son, it is in his best interests and consistent with my obligations under s 44 of the GA Act (to consider whether the proposed appointee will be able to perform the functions vested in them and the desirability of preserving existing relationships), that I find that the independent guardian, that is the Public Advocate, remains the only suitable appointee. They will be able to bring their experience to assist K, and he can still enjoy the informal support of his friends including C without those relationships being threatened by the pressure of an official appointment.
Conclusion
For the above reasons, I am satisfied that on all the information available the appropriate person to appoint as the administrator is the Public Trustee and as the guardian is the Public Advocate, because they will act in the best interests of the represented person, that is, K, and they are otherwise suitable to act.
I have considered whether C should be appointed as the limited guardian for any or all of the required functions, however I have determined that she should not be so appointed because of the risk to that supportive relationship (noting the consequences for family relationships in the past of being a substitute decision-maker), and the difficulties she has already experienced navigating the court process with K.
Period of order
The Tribunal is required to nominate a period of time by which a review of the administration and guardianship orders must be made. The maximum time period allowed by the GA Act is 5 years. In this case I consider that it is appropriate to nominate a period of 5 years because the medical evidence is clear that K has a progressive condition. He has lost capacity to make reasonable judgments in his own best interests, and there will be an ongoing need for his financial affairs and personal decisions to be made or supported by others.
I note that an earlier review can occur at any point in those 5 years on request by K or anyone who knows him either personally or professionally, if they feel that the current orders are not working in his best interests. Throughout this process, the Tribunal's primary concern is always K's best interests, taking into account all the evidence regarding his current circumstances.
I therefore make the following orders.
Orders
The Tribunal declares that the represented person, [K] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)in need of an administrator of his estate;
(c)incapable of looking after his own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to his person;
(e)in need of oversight, care or control in the interests of his own health and safety; and
(f)in need of a guardian.
The Tribunal orders:
Administration
The administration order dated 21 February 2022 is confirmed as follows:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
3.The administration order is to be reviewed by 17 April 2028.
Guardianship
The guardianship order dated 21 February 2022 is revoked and substituted with an order in the following terms:
4.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is 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)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine the services to which the represented person should have access;
(e)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person; and
(f)In relation to any proposed, pending or current Family Court proceedings:
(i)seek legal advice on behalf of the represented person;
(ii)bring or defend legal proceedings in the name of the represented person;
(iii)settle legal proceedings on terms the guardian considers to be in the represented person's best interests; and
(iv)advocate on behalf of the represented person in relation to orders made in the Family Court.
5.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.
6.The guardianship order is to be reviewed by 17 April 2028.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, SENIOR MEMBER
28 APRIL 2023
0
0
1