KC and TG
[2006] WASAT 225
•7 AUGUST 2006
KC and TG [2006] WASAT 225
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 225 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:229/2006 | 20 APRIL 2006 | |
| Coram: | MR J MANSVELD (MEMBER) | 7/08/06 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | The application for guardianship and administration are dismissed | ||
| B | |||
| PDF Version |
| Parties: | KC TG |
Catchwords: | Guardianship and administration Need for a guardian Need for an administrator Whether the person is safe in his own home Restraint Enduring power of attorney as a less restrictive alternative to the appointment of an administrator Conflict of interest |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(c), s 43, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 64, s 64(1)(a), s 64(1)(b), s 68, s 119 |
Case References: | Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) 320 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KC and TG [2006] WASAT 225 MEMBER : MR J MANSVELD (MEMBER) HEARD : 20 APRIL 2006 DELIVERED : 7 AUGUST 2006 FILE NO/S : GAA 229 of 2006
- GAA 230 of 2006
- Applicant
AND
TG
Represented party
Catchwords:
Guardianship and administration - Need for a guardian - Need for an administrator - Whether the person is safe in his own home - Restraint - Enduring power of attorney as a less restrictive alternative to the appointment of an administrator - Conflict of interest
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(c), s 43, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 64, s 64(1)(a), s 64(1)(b), s 68, s 119
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Result:
The application for guardianship and administration are dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Represented party : N/A
Solicitors:
Applicant : Self-represented
Represented party : N/A
Case(s) referred to in decision(s):
Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) 320
Case(s) also cited:
Nil
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Summary of the Tribunal's decision
1 Applications for guardianship and administration were made for a 75 year old man by a public health service. The man lived on a farm with his two children, in separate dwellings. He suffered from a rapid-onset form of dementia.
2 The applicant was concerned that the man's children were not able to adequately assess the risk he faced living in his own home on the farm and that consideration needed to be given to whether the man needed to be moved to an aged care facility.
3 The applicant was of the view that the man was at risk of falls and because the house was secured he would not be able to get out in the event of fire.
4 The applicant also submitted that the children were not giving the prospect of their father living in an aged care facility sufficient consideration because it might have meant that some of the farm would need to be sold to cover ingoing costs. The farm was owned by the father and the children.
5 The children said that they visited their father a number of times during the day and ensured his basic needs were met. He had left the house on two occasions and was found on the farm both times but the children felt that his wandering had been overstated. The door to the house was secured but only lightly and the man could get out of the house if it was his strong intention to do so.
6 The children's views were supported by a long standing friend of the family who attended the hearing as well as the representative of the Public Advocate.
7 The Tribunal accepted that the wish of the man was to remain living on his farm and that it was the genuine desire of his children to grant his wish and to care for him to achieve that end. The Tribunal was not convinced on the evidence, that the man was at risk of constantly seeking to leave his house and was satisfied that he could leave the house if it was his intention to do so.
8 Looking at the entirety of the man's situation, the Tribunal found that the care arrangements in place for him were such that the Tribunal did not need to formally appoint a guardian to make decisions about the man's
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- care, that were not and would not be made informally by his children in his best interests.
9 The Tribunal was equally satisfied that the man's children would act in his financial best interests by way of an enduring power of attorney the man had executed in 2005.
10 The Tribunal dismissed the applications for guardianship and administration.
Background
11 These reasons relate to applications for guardianship and administration made for TG, by KC (the applicant) a social worker with a public health service.
12 TG is a 75 year old man who lives on a farm with his two children, DG (son) and CG (daughter).
13 The legislation relevant to the applications is the Guardianship and Administration Act 1990 (WA) (the GA Act).
14 The applications were heard on 20 April 2006 and the hearing was attended by the applicant, DG, CG, JS (family friend) and MI a representative of the Public Advocate.
Decision
15 I have decided to dismiss both the applications for guardianship and administration.
16 The applicant has sought written reasons for the decision.
17 I will provide reasons for my decision by firstly stating the relevant legislation. I will then discuss the question of TG's capacity, the submissions of the parties and finally analyse all the information against the legislation to come to my determination.
The relevant legislation
18 When considering guardianship and administration, I must be satisfied that TG is someone for whom a guardian and administrator could be appointed (the question of capacity) and if found incapable, whether he should have a guardian and administrator appointed (the question of need). If a guardian and administrator are to be appointed, the final questions to be considered are what functions should be given to the
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- guardian and administrator and who that guardian and administrator should be.
19 The relevant legislation is contained in s 3, s 4, s 43, s 44, s 64 and s 68 of the GA Act.
20 With regard to guardianship, I need to be satisfied that TG is incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person or is in need of oversight, care or control in the interests of his own health and safety or for the protection of others, and is in need of a guardian (s 43).
21 With regard to administration, I need to be satisfied that TG 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 is in need of an administrator (s 3, s 64).
22 The principles to be observed when dealing with proceedings under the GA Act are set out in s 4. The primary concern shall be the best interests of TG. The remaining principles are, firstly, that every person is presumed to be capable of looking after his or her own health and safety; making reasonable judgments in respect of matters relating to his or her person; managing his or her own affairs; and making reasonable judgments in respect of matters relating to his or her estate unless the Tribunal is satisfied to the contrary. Secondly, an order appointing a guardian or administrator shall not be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Thirdly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient to meet the needs of the person concerned. Fourthly, an order appointing a limited guardian or an administrator shall be in terms that impose the least restrictions possible in the circumstances, on the persons' freedom of decision and action. Finally, as far as possible, the views and wishes of the person concerned should be ascertained and considered.
23 The question of who should be appointed guardian is provided for in s 44 of the GA Act which reads:
"(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.
(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."
24 The question of who should be appointed administrator is provided for in s 68 of the GA Act which reads:
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- "(1) An administrator (including a joint administrator) shall be -
(a) an individual of or over the age of 18 years; or
(b) a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal -
(c) will act in the best interests of the person in respect of whom the application is made; and
(d) is otherwise suitable to act as the administrator of the estate of that person.
(2) The State Administrative Tribunal shall not appoint as administrator a corporate trustee that is a trustee company under the Trustee Companies Act 1987 unless it is satisfied that -
(a) there is an individual who would otherwise be appointed as administrator and that individual has in writing requested the appointment of that trustee company; or
(b) the person in respect of whom the application is made has made a will appointing the trustee company as executor and the will remains unrevoked at the time of the appointment.
(3) For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible -
(a) the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b) the wishes of that person; and
(c) whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
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- (4) The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
(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 an administrator unless there is no other individual or corporate trustee who is suitable and willing to act."
TG's capacity
25 TG has been diagnosed with dementia. His general practitioner, Dr S O'Rourke, is of the view that TG can no longer make reasonable decisions about his personal health care, living situation and financial affairs. In his report dated 14 February 2006, Dr O'Rourke states that TG will continue to deteriorate and this is evidenced in the declining scores in his "MMSE" (Mini-Mental State Examination) from 23/30 in March 2005 to 9/30 in February 2006.
26 It is common ground that TG is not able to make decisions for himself and is a person who could have a guardian and administrator appointed.
27 I therefore find that TG is incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person and is in need of oversight, care and control in the interests of his own health and safety (s 43(1)(a) and (b)).
28 I also find that TG is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate (s 64(1)(a)).
Is TG in need of a guardian and administrator?
29 When a person is found to be incapable, pursuant to s 43(1)(b) (guardianship) and s 64(1)(a) (administration) of the GA Act, the question that next has to be considered is whether he is in need of a guardian and administrator. Such need is read subject to s 4(2)(c) of the GA Act, which provides that a guardianship or administration order shall not be made if the needs of the person could, in the opinion of this Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
30 The meanings of "need" in respect of guardianship and administration and the "needs of the person" as it refers to the possibility
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- of a less restrictive alternative to the making of formal orders were considered by the Full Board of the Guardianship and Administration Board in Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) 320 at 320-332.
"… it is apparent that where the provisions of s 43(1)(b) are met it will usually follow that there will be a need for a guardian as provided in s 43(1)(c). The same can also be said in relation to the need for an administrator under s 64(1)(b). This is so because unless a guardian or administrator is appointed there would in most cases be no one with legal authority to make decisions in respect of the represented person. There would in other words be a legal vacuum. Therefore the 'need' in those sections in our view means the 'need' for someone to have formal legal authority to make decisions on behalf of the represented person in order to resolve issues relating to the personal affairs of the represented person or to manage and protect the financial estate."
"… there is some other statutory provision which gives legal authority for the decision-making in question of (s 119) or if there is in fact no live issue or foreseeable conflict in relation to the personal affairs of the represented person so as to give rise to the need for this Board to intervene in the life of the represented person by making a formal order." (MM at 330).
32 There may be no need for an administrator under s 64(1)(b).
"… if the person has no assets that require administration, or if the assets are managed under some other legal authority such as an enduring power of attorney, a formal trust or court order." (MM at 300).
33 The test as it relates to the "needs of the person" is of a broader nature. In MM at 330:
"… the phrase 'needs of the person' … involves a different test. The "needs" there described are of wide import and encompass all the wants and necessaries of the person. Thus there is a two step process. The Board must first determine whether there is a need for a guardian in s 43(1)(c) (or a need for an administrator
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- in s 64(1)(b)) and then move on to the issue whether notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of that person can nevertheless be met under informal arrangements which are less restrictive of the person’s freedom of decision and action."
34 I respectfully agree with the reasoning in MM.
The applicant's submission
35 The applicant states that she visited TG once, on 3 February 2006, after receiving an urgent referral from the care coordinator at the local hospital. The referral was subsequent to a concern raised by Dr J Williams (general practitioner) that TG was being locked in his house when his children were at work. TG had been diagnosed with dementia and was said to wander. It was alleged that he had been lost in the past because of his wandering.
36 The applicant was told by CG (daughter) that she prepares all TG's meals and that he can still eat unprompted. CG assists with his showering and dressing and supervises his medication. She and DG (son) take turns to bring TG his lunch. CG takes him for a walk in the afternoon.
37 The applicant says that in the recent past when TG had been able to leave the house, CG and DG needed to call the police on a number of occasions when he became lost. The police apparently advised that they could not keep assisting and this lead to the house being secured. CG and DG are worried about TG wandering onto a nearby road but not if he wanders through the farm. The applicant says that both CG and DG told her that TG is left unattended on average for about two hours during the day but is secured in the house for that time and overnight. The applicant submits that she is concerned at this solution to TG's wandering where he is kept in the house unsupervised.
38 CG and DG told the applicant that they are not always in sight of TG's house and would not always notice if there was a fire. They believe, however, that TG would be able to break down the door and get out of the house but acknowledge that TG would need to be oriented to be able to do this.
39 The applicant says she was told by CG that TG recently suffered a fall and that if he fell at night he would not know how to get help. He apparently is more confused and disoriented by the late afternoon.
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40 The applicant says that CG and DG are looking into ways to improve TG's safety including GPS tracking systems, however, neither could indicate when it is they would know to place TG in an aged care facility. Both agree that securing the house is a short-term solution.
41 The applicant says that Silver Chain has made three approaches to CG and DG offering services, but services were rejected on all those occasions. She submits that it was the belief of Silver Chain staff that the refusal was because CG and DG did not want people to see TG locked in the house "and perhaps other things related to his care". (T:10)
42 Despite this the applicant states:
"It was quite clear to me that [TG] was very comfortable … with [DG] and [CG] and it was quite clear that he was well clothed. He was clean and presentable. His house was clean and presentable. I didn't have any doubt that – I think [CG] was doing everything she could within her capacity. My concerns were around the areas that they didn't seem to be able to address." (T:12)
43 In respect of TG's financial affairs, the applicant states that CG and DG are attorneys under an enduring power of attorney (EPA). She says she was told that TG is not in receipt of a Centrelink pension and that the forms are too complicated to complete. TG is said to own half of the farm (CG and DG own a quarter each). CG told the applicant that she pays for TG's needs.
44 CG and DG are reported to have told the applicant that they believe TG is happiest at home but that it is the cost that is the major factor in him not being placed in a nursing home. The applicant submits that this may present CG and DG with a conflict of interest as they balance their financial needs with that of TG.
45 The applicant submits that she advised CG and DG that she would be referring her concerns about TG to this Tribunal because she was unable to decide that his current circumstances are in his best interests.
46 The applicant submits that an independent guardian and administrator should be appointed for TG for 12 months "… just to get the situation sorted". (T:14)
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The Public Advocate's submission
47 The Public Advocate visited TG on 6 April 2006. Amongst other things TG is reported to have said that he wants to stay on the farm.
48 The Public Advocate has spoken with Dr J Williams, TG's former general practitioner. Dr Williams told the Public Advocate that in his view TG has advanced dementia and is no longer able to be adequately cared for by his family. He requires professional care.
49 The Public Advocate made enquiries with the local police and was advised that they have only one reported incident involving TG and that was several months ago when DG advised that TG was missing. There was a concern that he might wander onto the nearby highway. TG was later found on his farm walking back to his house.
50 The Public Advocate confirms that TG is kept in his home by way of securing the flywire door. He describes this as:
"… security chains are on the outside of the door and to date [TG] has not been able to work out how to unlock them. Anyone from the outside can de-latch the chains very quickly without the need for any other device … [TG] has openly stated if a fire occurred he would kick the door in and get out. [TG] would have the physical strength to carry this action on the flywire doors if he remembers to do so in the event of fire." (page 5 of written report dated 12 April 2006)
51 The Public Advocate reports that CG and DG see their father at least three times during the day (CG's house is approximately 400 metres from TG's house). CG takes him for a walk every afternoon. An adult grandson (DG's son) also lives on the farm and frequently drops in to see TG.
52 In respect of an assessment of the risks faced by TG, the Public Advocate states:
"I actually went down to the premises and from what I saw and from making enquiries I did not see a risk. The only thing I was concerned about was whether that minor chaining of doors and the way he's been left on his own was unlawful restraint … I looked at the property and, yes, he does wander. He's child like. He'll – but there is no evidence that I know of where he has actually placed himself in danger of it." (T:46-47)
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53 The Public Advocate submits that there is no reason why TG could not remain on the farm.
54 The Public Advocate spoke with TG's brother and sister who say that he should only be placed in a nursing home when the family are no longer able to care for him. They support CG and DG in continuing to care for TG.
55 The Public Advocate submits that there might need to be a guardian appointed "… to determine the issue of restraint in relation to the doors of [TG's] house …" (page 6 of written report)"… but I really feel the restraint is of such a minor nature. It would be no different than me locking my deadlocks at night in my own home". (T:49) A guardian would not be needed to consent to treatment for TG because authority to consent is provided for in s 119 of the GA Act (see below "The Tribunal's findings on the need for a guardian").
56 The Public Advocate submits that there has not been sufficient consultation between CG, DG and service providers (including the applicant) to try and develop agreed means by which TG can stay on the farm and not be at risk. Examples cited are tracking devices, alarm systems, pool fencing around the house, Silver Chain services, TG staying with CG at night and offers by friends and neighbours to assist.
57 In respect of TG's financial affairs, the Public Advocate confirms that TG executed an EPA on 27 July 2005 in favour of CG and DG as his joint and several attorneys.
58 The Public Advocate draws attention to the possibility of a conflict of interest for CG and DG if funds are required to place TG in an aged care facility and this can only be achieved by sale of property (part of the farm). The Public Advocate has spoken with the family accountant (RSM Bird Cameron) and has been advised that there has been no evidence of fraudulent or inappropriate activity by CG and DG in their role as attorneys of TG. The accountant would be prepared to work with CG and DG regarding the financing of alternate accommodation for TG if and when that is needed.
59 The Public Advocate submits that unless there is evidence to the contrary, the EPA should remain in place as a less restrictive alternative to the appointment of an administrator.
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The submissions of CG, DG and JS
60 JS, as a long-standing friend of TG and his family, says that she and her husband visit him regularly, perhaps 12 to 14 times a year. She says that she talks with CG and DG often and that CG telephones her frequently.
61 JS submits that CG and DG are coming to terms with the rapid onset of TG's dementia. She says that "… there's an intense amount of emotion attached to this whole situation. These young people love their father dearly and care for him with an intensity …". (T:17)
62 JS says that TG and his children do not live a great distance from each other on the farm. There is also the grandson who "pops in" to see TG frequently.
63 JS submits, and this is supported by CG and DG, that the risk of TG "wandering", that is leaving the house and getting lost, has been overstated. She is aware of only two occasions where this has occurred, the first when the local police were contacted and TG was found on the property and the second when he was quickly located by his children, again on the property. She says that CG and DG are looking into a tracking device and the construction of pool fencing around the house to improve TG's circumstances. JS submits that if TG is allowed to stay on the farm then these things can be put into place very quickly: "I think what [CG] and [DG] were looking for was how can we help our dad, not take our dad off us – because we can't manage him". (T:31)
64 JS agrees with the Public Advocate's submission that TG could get through the secured door if he wanted to: "I could get through if I wanted to … and I'm nowhere near as fast and as strong as [TG] is, I can tell you that much". (T:29)
65 In respect of the recent fall of TG in his house described by the applicant, JS says she understands there are risks in TG's living arrangements but submits that even in the best run nursing home, falls occur and that "the trip over the lounge" is not indicative of a general risk to TG.
66 JS says that CG is with TG for two hours or so in the morning including preparing his breakfast; DG will spend one hour or more at lunch time and both he and his son will call in during the day. CG is then with TG for dinner, showering and putting him to bed. CG says that TG is in bed by 7.45 pm. He might wander around a little and go to the toilet
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- but then he will go back to bed. He has never been known to go outside the house at night. JS says that TG knows his way around the house.
67 JS submits that there have likely been misunderstandings between CG, DG and service providers (including the applicant). She questions what a two hour interview by the applicant could achieve "… to deal … with the intricacies of the farm situation". (T:27)
68 CG says that she has not refused Silver Chain assistance on three occasions as asserted by the applicant. She says that the Silver Chain person contacted her two months ago and asked if she wanted help. CG declined because she believed she was coping with caring for her father: "I mean, that's been my role since I was a little kid. And so I said to Heidi [Silver Chain], 'No. That's fine. Just leave it go. I'll – if I need you I'll get in touch with you,' not like three times that was suggested". (T:23-24)
69 CG states that she would not stop people from coming in to see and visit TG and that she has the Silver Chain "paperwork" if, in her view, that service is needed.
70 CG says in the most recent contact with the applicant she was told there was a vacancy at a nursing home in Bunbury but "… because it was a lock-up … I thought, no, they're not taking him away". (T:26). She and DG are aware that "further down the track" TG might need to be moved to an aged care facility. They have known of that possibility for some time.
71 When originally told of the possibility of an accommodation bond being payable, a figure of $119 000 was mentioned, CG says that she did ask herself from where would the funds come. TG has not been eligible for a pension because of the value of his assets. CG states that she sought the assistance of the applicant to find out whether TG could become eligible for the pension but she has not received a response.
72 CG, who does the bookwork states that the farm does not operate at a profit. JS says that CG prepared the farm accounts before TG became ill. So as far as the finances of the farm and TG are concerned, she is not doing anything now that she was not doing previously: "Her dad's always trusted her". (T:42)
The Tribunal's findings on the need for a guardian
73 TG suffers from a rapid onset form of dementia. This has caused significant emotional distress for his two children who, as the evidence
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- shows, are devoted to him. TG's illness has also caused significant practical difficulties for his children as they attempt the arduous task of managing his care, working the farm and leading their own lives. The situation has developed, as the applicant sees it, to the point where consideration must be given to the question of whether it is safe enough for TG to remain in his house on the farm or whether he needs care in an aged care facility. The applicant proposes the appointment of an independent guardian for a period of twelve months to give effect to this question. In so proposing, the applicant is submitting that TG's children are currently unable to consider that question in the best interests of TG.
74 JS, who is a long standing friend of the family, and who at the hearing spoke on behalf of TG's children, submits that the way in which the applicant has intervened and brought this matter to the Tribunal has not sufficiently accounted for the genuine struggle of TG's children to come to terms with his illness and deal with its consequences.
75 The issue is ultimately one of an assessment of the risk that TG faces in the current arrangements for his care as against the uncontested notion that he should be allowed to live on his farm for as long as is possible.
76 The applicant has mentioned the risk of TG falling and not getting prompt attention and the risk of fire with TG not being able to leave the house for his safety because it is secured. The Public Advocate does not share the applicant's assessment of the extent of the current risk to TG's safety.
77 There is also the matter of the door of the house which is secured, the question being whether TG has an ongoing desire to go outside and the door prevents him from doing so; that the secure door is a restraint on his voluntary movement.
78 These matters are "live issues" as contemplated by MM (see above) and they are the subject of disagreement as to how they impact on TG. TG cannot decide for himself and it is open to me to appoint a guardian to overcome this vacuum in the decision-making.
79 Before considering the appointment of a guardian, however, I must decide whether the current informal arrangements meet the needs of TG such that a guardian is not required (s 4(2)(c) of the GA Act). To do this I must make a judgment about his circumstances on the evidence presented to me.
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80 I accept that it is the wish of TG to live on his farm. I also accept that it is the genuine desire of his children, DG and CG to grant his wish and to care for him to achieve that end. In doing so, and given the rapid onset of TG's dementia, DG and CG have found it difficult to cope particularly in respect of the emotional strain their father's illness has placed on them.
81 I accept the evidence that TG is seen a number of times during the day by his children and grandchild, that his basic care needs are met and that he is well fed and groomed.
82 I am not convinced on the evidence that TG is at risk of constantly seeking to leave his house. There are two reported incidents of him leaving the house and both times he was found on the farm. There is, without doubt some ongoing risk of TG "wandering" and that risk needs to be dealt with. The door is some barrier but again on the evidence of the Public Advocate and JS, I am not convinced that it ultimately prevents TG from leaving should his wish to do so be strong enough at the time. This of course depends on his ability to orientate himself around his house and on this issue JS states: "He [TG] knows his way around the house". (T:35)
83 When I look at the entirety of TG's situation, I prefer the evidence and submissions of CG, DG and the Public Advocate. I find that the care arrangements in place for him are such that I do not need to formally appoint a guardian at this time to make decisions about TG's care that are not and will not be made informally by DG and CG in his best interests.
84 I find that any medical treatment and health care decision that needs to be made for TG from time to time can be made by DG and CG under the authority of s 119 of the GA Act. That section provides a regime of consent to treatment for a person who can no longer make such decisions for themselves, without the need for formal guardianship.
85 There is little doubt that the care needs of TG will increase over time as his dementing illness progresses. TG's living arrangements will need to be reassessed on a regular basis and it is likely that the difficult decision of placing him in an aged care facility will ultimately need to be made. I am confident, however, that CG and DC, with the assistance of other family members and friends such as JS, will make that decision when necessary and prior to that time seek assistance from service providers for their father's care.
86 The application for guardianship is therefore dismissed.
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The Tribunal's findings on the need for an administrator
87 TG executed an enduring power of attorney on 27 July 2005 appointing CG and DG as his joint and several attorneys.
88 TG is not in receipt of a Centrelink pension because, it appears, the monetary value of his assets (mainly his share of the farm) is too high. He relies on his share of the farm income and the assistance of his children to pay for his expenditure needs. At the time of the hearing he was still a partner in the farm operations.
89 The applicant submits that CG and DG are in the position of a conflict of interest in that should an ingoing fee (accommodation bond) be required to secure a place for TG in an aged care facility, it is possible that farm land will need to be sold and this is not what is wanted or contemplated. The applicant says that CG and DG have told her that cost is the principal barrier to TG being placed in a care facility.
90 The Public Advocate agrees that there is potential for a conflict of interest but has been advised by the family accountant that he is prepared to work with CG and DG on financing alternatives should that be necessary.
91 CG admits that when she was first faced with the prospect of a lump sum payment in excess of $100 000 as an accommodation bond for TG, she did wonder how those funds would be obtained. Given the particular financial circumstances of TG and his family, I am of the view, that this would have initially been an understandable reaction on the part of CG.
92 If I were to find that the financial interests of DG and CG are in conflict with TG and by virtue of that conflict decisions were being made for him contrary to his best interests, it would be open for me to appoint an administrator (see MM above). On that point, however, I agree with the general proposition of the Public Advocate that there has not been sufficient consultation and discussion with CG and DG by relevant authorities and service providers in order for these issues to be worked through. I accept that it is not been made easy for anyone given TG's rather rapid decline and the emotional impact of this on CG and DG.
93 I have earlier found that I am satisfied CG and DG will make the appropriate decisions for TG's care particularly with the assistance of family, friends and service providers. Having made that finding I am equally satisfied that CG and DG will act in TG's financial best interests.
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94 I agree with the Public Advocate that the EPA is currently the appropriate instrument to be used by CG and DG to make financial and property decisions for TG.
95 I therefore dismiss the application for administration.
I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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