KC and CP - [2009] WASAT 29

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: KC and CP [2009] WASAT 29

MEMBER: MS D DEAN (MEMBER)

HEARD: 24 NOVEMBER 2008

DELIVERED : 18 FEBRUARY 2009

FILE NO/S: GAA 2404 of 2008
GAA 2412 of 2008

BETWEEN: KC
Applicant
AND
CP
Represented Person

Catchwords:

Application for Guardianship Application for administration Capacity to make reasonable judgments Less restrictive alternative to making a guardianship order Need for an administrator Need for an independent decisionmaker

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 64, s 119

Result:

The application for guardianship is dismissed
The Public Trustee is appointed plenary administrator for one year

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented Person : Self-represented

Solicitors:

Applicant: Self-represented
Represented Person : Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications were made to the Tribunal for both guardianship and administration orders by the daughter of CP, an elderly man who suffered a stroke some months ago, leaving him significantly cognitively disabled. CP proposed herself in both roles.
Evidence before the Tribunal was that CP had lived a solitary life with few friends and no family support. His ex‑wife and daughter moved to another State when the daughter was an adolescent. The Tribunal heard conflicting evidence in relation to the amount of contact between CP and his daughter during the years until her move back to Perth after he suffered the stroke.
The Tribunal dismissed the application for guardianship after finding that there was no need for a guardianship order, as the daughter was in the process of arranging suitable nursing home accommodation for CP and, as the nearest relative, was making medical treatment decisions for him. There was no evidence before the Tribunal that these decisions were not being made in CP's best interests.
The Tribunal found there was a need for an administrator to be appointed to manage CP's estate and appointed the Public Trustee plenary administrator. The Tribunal found that the daughter was not suitable to take on the role of administrator because she did not accept CP's significant cognitive impairment which made it impossible for him to make reasonable judgments, particularly in relation to his estate. Evidence had been provided that the daughter frequently asked CP for money and had attempted to gain possession of his bank book and personal papers. The daughter had also attempted to access CP's bank account by way of an authority she had CP sign. The daughter acknowledged that she intended to use the money for her own purposes. The Tribunal found that the daughter did not fully understand the role of an administrator and, because of her past actions, could not be relied on to act in the best interests of CP and was not a suitable person to take on the role of administrator of his estate.

Background

CP is a separated man who suffered a stroke while living in a hostel in country Western Australia. He is reported to have lived a solitary life with few friends and no family support.
Applications were made to the Tribunal by CP's daughter, KC, for the appointment of both a guardian and an administrator. KC proposed herself in both roles.

Documents provided to the Tribunal prior to the hearing

•Report from Dr P, physician, dated 22 October 2008 in which he said he has known CP for approximately six weeks and that CP is suffering from multi infarct dementia. CP has a mini mental state exam (MMSE) score of 13 out of 27, indicating moderately severe dementia. Dr P deemed CP incapable of making reasonable judgments about any major aspect of his life, welfare or finances.
•Two reports from NG, hospital social worker, dated 10 November 2008 and 20 November 2008, advising that CP 'appears to have moderate to severe deficits in short‑term memory, long‑term memory, orientation (to time, place and person), attention, and he is regularly confused. He has great difficulty recalling past events as well as providing information regarding his family history'. NG advised that CP should not attend the hearing as he 'may become confused and potentially distressed'. She further advised of concerns in relation to CP's daughter, KC, who, she said, frequently asks CP for money, has requested that the hostel provide her with CP's bank book and personal papers, and has attempted to access his bank account with an authority allegedly signed by CP who had been deemed by his doctor as not competent to sign such a document. NG reported that a witness to the signing of the document advised that CP did not see or understand the document he was signing. NG further reported that, at one stage, KC's telephone calls to the facility had become so frequent that they 'verged on harassment' and the police had been contacted.
•Submission dated 24 November 2008 from NG including a copy of a Notice of Revocation, whereby CP revoked a power of attorney he had previously executed (date unknown) appointing a friend as his attorney, and documents indicating that CP executed a will in May 2005.

Hearing

The hearing was attended by the following people:
•KC, the applicant and daughter of CP;
•JL, partner of KC;
•NG, hospital social worker (by telephone); and
•a representative of the Office of the Public Advocate (Public Advocate).
In addition to the evidence provided in writing to the Tribunal prior to the hearing about CP's capacity to make his own reasonable decisions, NG gave evidence in the hearing that CP vacillates in his responses to information and questions. She said 'some days he is a lot clearer in what his wishes are and other days he is not' (T:7). NG said that CP accepts that he needs assistance with physical aspects of his daily life but considers that he still has the capacity to manage his finances without assistance, and is therefore not prepared to consider that an administrator may be appointed and, if so, whom he would wish to be appointed. NG said CP was unable to understand the concept of a guardian when she tried to explain this to him, but has indicated that he is amenable to others having input into the decision about his move into residential care.
KC gave evidence that she has difficulty accepting CP's degree of cognitive impairment but acknowledged that his capacity to communicate in a meaningful way fluctuates from time to time.
KC provided evidence in the hearing about her move from Perth to Sydney with her mother at the age of 13. She said she has lived there in Sydney ever since and had not seen CP from the age of 13 until her recent return to Perth to visit CP when she learned that he was unwell.
KC said that, although she has not seen CP for many years, they have maintained written correspondence and some telephone contact over that time. This is not consistent with information she previously provided to NG that she has had very little contact with CP until approximately 12 months prior to her recent arrival in Perth, when she began having telephone contact with him. The Public Advocate advised that Mr L, a friend of CP, had informed her that CP had little contact with KC in the years KC lived in Sydney.
Since her arrival in Perth a few weeks ago, KC has met JL, with whom she is now in a relationship. KC has a one‑year‑old child living in Sydney. She said she intends leaving the child in Sydney with her former partner and staying on in Perth with her current partner, JL.
KC and JL said that they are concerned that CP's doctors are not talking with KC about his diagnosis and treatment. NG explained that when CP had first been admitted to hospital, no next of kin had been identified. Once KC made herself known to the treating team, she had been accepted as the nearest relative and is recognised as the person with whom the treating team confer and accept as decision‑maker on behalf of CP. The sequence of events is not clear, but either as a result of the stroke or in the days immediately after, CP suffered a fractured femur for which he required surgery. KC confirmed that she had provided the consent for this surgery, indicating that she is accepted by the treating team as medical decision‑maker.
The Tribunal was advised that CP is not expected to recover enough to be able to return to live in the community. Although she had previously told NG she wished to have CP transferred to live near her in Sydney, KC advised that she now intends settling in Perth, and has been canvassing nursing homes for a suitable placement for CP who is currently in a 'care awaiting placement' bed. She said she has been unable to place his name on waiting lists because an appointed administrator is required to sign the necessary documentation, including the assets declaration form.
In discussion about the need for the appointment of an administrator, the Public Advocate advised that she had spoken with Mr L, a friend of CP, who described him as 'a kind and generous man whose generosity led at times to him being taken advantage of' (T:9). Mr L reported to the Public Advocate that CP, although living in a different State and not having contact with KC, had, over the years, provided some financial support to her.
In response to the concerns expressed by NG in her written report to the Tribunal, KC said that, with his knowledge and agreement, she had recently had CP sign an authorisation for her to access his bank account, which she then attempted to do. She said she needed the money to assist her with expenses associated with her move to Perth. KC also referred several times in the hearing to her desire to 'get access to the package, for it to get transferred down' (T:6). It appears that this package is held by CP's bank and contains his will and personal papers.
KC advised that CP receives a Department for Veterans Affairs (DVA) pension. She said she has been informed by the DVA that it cannot provide her with the information required for completion of the assets declaration form without the formal authority of an administration order or an enduring power of attorney (EPA). Both KC and JL expressed their frustration and anger that CP had executed an EPA appointing a friend as his attorney and had not appointed KC as his attorney when still able to do so.
The Tribunal found it difficult to obtain clear information from KC, particularly in regard to the extent of CP's estate and her understanding of, and capacity to act in, the role of an administrator. KC, in her evidence, referred to a 'locked account' which, after further questioning from the Tribunal, JL advised is a fixed term deposit. It was clear in this discussion that KC has limited understanding of investment and banking issues.
The Public Advocate advised that, in her view, there is no current need for a guardianship order. KC is accepted by the medical treating team as decision‑maker; CP accepts that he needs to go into supported accommodation, and KC is currently looking for accommodation for him. KC confirmed that, although she has difficulty recognising the degree of cognitive impairment, she accepts that CP requires nursing home care, and is actively looking for a suitable placement for him.
KC and NG gave evidence about the need for the appointment of an administrator to deal with the DVA in relation to CP's pension entitlements; to complete any outstanding taxation returns; to ascertain the extent of CP's estate, and to complete an assets declaration form to facilitate his application for nursing home care.
The Public Advocate expressed concern that KC had CP sign an authority for the bank to allow her to sign on his bank account when it was clear that he did not have the capacity to understand the significance of what he was doing. The Public Advocate advised that, in her view, it is in CP's best interests that the Public Trustee be appointed to manage his estate. She said that a short order of one year may be appropriate as, in time, KC may be more settled in her life and may be more able to take on the role of administrator.

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 GA Act.
These principles are:
(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 ‑
(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 GA 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 -
(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 64 of the GA Act provides for the appointment of an administrator.
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 -
(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
(b)is in need of an administrator of his estate …
Section 119 of the GA Act provides a list of persons who may make medical and dental treatment decisions for a person without the need for the appointment of a guardian.
(1)If in the opinion of a practitioner a person presented to him for treatment ‑
(a)is in need of urgent treatment;
(b)is incapable of consenting to the proposed treatment; and
(c)is at the time of presentation a person for whom a guardian could be appointed under this Act,
the practitioner may provide the treatment if the person referred to in subsection (3) consents to it.
(1a)A practitioner may provide treatment under subsection (1) without the consent of the person referred to in subsection (3) if in the opinion of the practitioner it is not practicable to obtain that consent.
(2)If in the opinion of a practitioner a person presented to him for treatment ‑
(a)is in need of treatment that is not urgent treatment;
(b)is incapable of consenting to the proposed treatment; and
(c)is at the time of presentation a person for whom a guardian could be appointed under this Act,
the practitioner may provide the treatment if the person referred to in subsection (3) consents to it.
(3)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 ‑
(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.
(3a)For the purposes of subsection (3) a person is to be regarded as maintaining a close personal relationship with the person needing the treatment if the relationship is maintained through frequent personal contact and a personal interest in the welfare of the person needing the treatment.
(4)In this section ‑
practitioner in relation to medical treatment means a medical practitioner within the meaning given to that term in the Medical Practitioners Act 2008 section 4, and in relation to dental treatment means a dentist registered under the Dental Act 1939; and
urgent treatment means treatment that in the opinion of the practitioner concerned is urgently needed ‑
(a)to save the life of the person needing the treatment;
(b)to prevent serious damage to the health of the person needing the treatment; or
(c)to prevent the person needing the treatment from suffering or continuing to suffer significant pain or distress.

Findings and reasons

Capacity

Medical and paramedical evidence provided to the Tribunal is consistent in the assessment of CP as no longer, because of his stroke, having the capacity to make reasonable judgments in relation to any major aspect of his life and welfare.
The Tribunal accepts this evidence and finds that CP satisfies the criteria set out in s 43 and s 64 of the GA Act that he is a person for whom both a guardianship and an administration order can be made.

Need for a guardian

Having made a finding that a person no longer has the capacity to make reasonable judgments for himself, the Tribunal must then address the issue of the need for a guardian. In relation to medical and dental treatment decisions, s 119 of the GA Act sets out a hierarchical list of persons who can, without the need for a formal order, make decisions for the person requiring treatment. KC, as the nearest relative, has this authority under s 119 of the GA Act.
Although KC indicated that she was not being consulted or kept informed by the medical treating team, evidence was provided by NG, and subsequently confirmed by KC, that once KC made herself known to the medical treating team and was identified as CP's daughter and nearest relative, she was accepted as the medical decision‑maker for him and has given permission for a surgical procedure to be performed. There is no indication that the medical decisions KC has made have not been made in CP's best interests or that he is not happy with her making them.

Evidence was provided that KC is actively involved in seeking appropriate nursing home accommodation for CP, and again, there is nothing to suggest that this is not in CP's best interests or that CP is not happy about this arrangement. That being so, the Tribunal finds that there is no need for a guardian to be appointed, as these less restrictive alternatives appear to be working in CP's best interests.

Need for an administrator

Having found that a person satisfies the criteria set out in s 64 of the GA Act, the Tribunal must then address the issue of whether there is the need for an administrator to be appointed.
In this case, the Tribunal finds that an administrator is needed to liaise with the DVA in relation to CP's pension entitlements, to ascertain the extent of his estate, to ensure that his accommodation and other expenses are paid on an ongoing basis, and to prepare and sign an assets declaration form, which is an essential part of the process of admission to nursing home care.
Having found there is the need for the appointment of an administrator, the Tribunal must then address the issue of who to appoint.

Wishes of the person

Where possible, the Tribunal endeavours to take into account the views and wishes of the represented person, but the overarching principle guiding the Tribunal in its decisionmaking is the best interests of that person.
The Tribunal was unable to speak with CP and ascertain his wishes, but had evidence before it from NG that CP does not accept that he is no longer able to make his own financial decisions, and that he is unwilling to even consider who should be appointed if an appointment is to be made. Indeed, it appears from the evidence provided by NG that CP may not understand the role of an administrator.

Best interests

The Tribunal found that KC, who has frequently requested money from CP for her own use and attempted to access his bank account with an authority signed by CP who, by all accounts, was not aware of what he was signing, has not acted in CP's best interests in this regard. The Tribunal found that much of the evidence provided by KC was confusing, lacked clarity and indicated a lack of understanding on her part about the role of an administrator, particularly the need for an administrator to act in the best interests of the represented person, as evidenced by her actions in attempting to access CP's bank account for money for her own use.
Evidence was provided by the Pubic Advocate that she had been informed by CP's friend, Mr L, that CP had no contact with KC over the years but, despite this, had supported her financially. KC, on the other hand, gave evidence that she has had regular written and telephone contact with CP during the years she lived in Sydney. The Tribunal gives more weight to the evidence provided by the Public Advocate in this instance, as KC's evidence throughout the hearing, as mentioned previously, was confusing and lacking in clarity. It is also worth noting at this point that CP did not list KC as his next of kin when he was admitted to hospital, which suggests that he was not in regular contact with her at that point.
The Tribunal accepts that KC is at a very stressful period of her life, with her relocation from another State, the breakdown of her previous relationship, the early stages of a new relationship and, most importantly, being the main support and decision‑maker for her father, CP, in relation to medical treatment and his future accommodation. In the opinion of the Tribunal, this would make it very difficult for KC to take on the role of decision‑maker in relation to CP's estate. It is clear from her evidence that KC does not fully accept that CP, because of his significant cognitive impairment, is no longer able to make reasonable judgments about his estate.
The Tribunal finds that, because of her past actions, KC cannot be relied on to act in the best interests of CP and is not a suitable person to take on the role of administrator of his estate.

Conclusion

Given all of the above, the Tribunal finds that it is in CP's best interests that the Public Trustee be appointed administrator at this time. The Tribunal makes a short order of one year with the view that KC may be in a better position in the future to again consider taking on the role of administrator.

Order

The Public Trustee is appointed plenary administrator.

I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER