LA
[2006] WASAT 297
•29 SEPTEMBER 2006
LA [2006] WASAT 297
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 297 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1190/2006 | 14 AUGUST 2006 | |
| Coram: | MS F CHILD (MEMBER) | 29/09/06 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | The Public Trustee appointed plenary administrator The Public Advocate appointed limited guardian | ||
| B | |||
| PDF Version |
| Parties: | LA |
Catchwords: | Guardianship and administration Review of orders Represented person with severe physical disabilities and intellectual disability Vulnerable and dependent on carers Family members not involved in care or in decision-making Need for guardian with formal authority to decide accommodation, services, to consent to health care and to determine contact with others Paid carer not appointed guardian as such an appointment would be contrary to the intention of the Act |
Legislation: | Guardianship and Administration Act 1990 (WA), s 43(1), s 44, s 44(1)(b), s 51, s 51(2)(e)(g)(h), s 64, s 84, s 86, s 117, s 117(2), s 119, s 119(3)(c), Pt 5, Div 3 |
Case References: | Nil Nil |
Orders | 1. The Public Trustee of 565 Hay Street, Perth, Western Australia be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.,2. This order is to be reviewed by 4 August 2011.,3. The order be revoked and a guardianship order in the following terms be substituted for it: ,The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road East Perth, Western Australia be 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) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to consent to any treatment or health care of the represented person;,(d) To determine what contact, if any, the represented person should have with others and the extent of that contact; and,(e) To determine the services to which the represented person should have access.,4. 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.,5. This order is to be reviewed by 14 August 2011. |
Summary | On review of a guardianship order made under the Guardianship and Administration Act 1990 (WA), the State Administrative Tribunal reappointed the Public Advocate as limited guardian for a 29 year old woman with physical and intellectual disabilities. There was a need for a guardian independent of service providers to decide matters relating to the woman's accommodation, the services to which she should have access, to consent to treatment on her behalf and to determine the contact she should have with others. ,The woman experienced significant medical problems associated with her physical disabilities and was at the time of the review hearing recovering from major surgery. Although the woman was settled in her accommodation placement and received an excellent level of care, there was no one available and appropriate from her family to decide personal matters on her behalf. The Tribunal determined that it was not in the woman’s best interests that decisions of this nature be made by the service providers or by her paid carer. It was appropriate that an independent guardian with the formal authority to decide matters in relation to her person be re appointed.,The Tribunal considered that although her carer had played an important role in her life, provided an excellent level of care to the woman and was committed to her best interests, that it was not the intention of the Guardianship and Administration Act 1990 that paid carers act in the role of a guardian for a person in their care.,The Public Trustee was confirmed as the plenary administrator of the estate of the woman. No one else was proposed to play this role and there was a need for independent management of her finances in her best interests. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : LA [2006] WASAT 297 MEMBER : MS F CHILD (MEMBER) HEARD : 14 AUGUST 2006 DELIVERED : 29 SEPTEMBER 2006 FILE NO/S : GAA 1190 of 2006 BETWEEN : LA
- Represented Person
Catchwords:
Guardianship and administration - Review of orders - Represented person with severe physical disabilities and intellectual disability - Vulnerable and dependent on carers - Family members not involved in care or in decision-making - Need for guardian with formal authority to decide accommodation, services, to consent to health care and to determine contact with others - Paid carer not appointed guardian as such an appointment would be contrary to the intention of the Act
Legislation:
Guardianship and Administration Act 1990 (WA), s 43(1), s 44, s 44(1)(b), s 51, s 51(2)(e)(g)(h), s 64, s 84, s 86, s 117, s 117(2), s 119, s 119(3)(c), Pt 5, Div 3
Result:
The Public Trustee appointed plenary administrator
(Page 2)
The Public Advocate appointed limited guardian
Category: B
Representation:
Counsel:
Represented Person : No appearance
Solicitors:
Represented Person : No appearance
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's Decision
1 On review of a guardianship order made under the Guardianship and Administration Act 1990 (WA), the State Administrative Tribunal reappointed the Public Advocate as limited guardian for a 29 year old woman with physical and intellectual disabilities. There was a need for a guardian independent of service providers to decide matters relating to the woman's accommodation, the services to which she should have access, to consent to treatment on her behalf and to determine the contact she should have with others.
2 The woman experienced significant medical problems associated with her physical disabilities and was at the time of the review hearing recovering from major surgery. Although the woman was settled in her accommodation placement and received an excellent level of care, there was no one available and appropriate from her family to decide personal matters on her behalf. The Tribunal determined that it was not in the woman’s best interests that decisions of this nature be made by the service providers or by her paid carer. It was appropriate that an independent guardian with the formal authority to decide matters in relation to her person be re appointed.
3 The Tribunal considered that although her carer had played an important role in her life, provided an excellent level of care to the woman and was committed to her best interests, that it was not the intention of the Guardianship and Administration Act 1990 that paid carers act in the role of a guardian for a person in their care.
4 The Public Trustee was confirmed as the plenary administrator of the estate of the woman. No one else was proposed to play this role and there was a need for independent management of her finances in her best interests.
Background
5 The Public Advocate was first appointed guardian for LA, the represented person, in 2001, following an application by the then Local Area Coordinator (LAC) of the Disability Services Commission (DSC) in Geraldton. The represented person was at that time living in a respite care placement with a family who later became her permanent carers.
6 The represented person had previously been in the care of her mother but there had been concerns expressed by the original applicant and other
(Page 4)
- service providers about the environment in which she lived and whether her health and safety needs were being met.
7 At the time of the hearing of the original application the mother of the represented person could not be located, but she was described in a later report before the Tribunal as having a "transient" lifestyle. The represented person's mother was also said to have been living in a situation of domestic violence where "alcohol continued to be a major part" …"and impacted on [the mother's] ability to provide appropriate care for her daughter".
8 When the Public Advocate was first appointed as guardian she consented to the represented person remaining in the care of Ms Howe (the primary carer).
9 The represented person has significant physical disabilities and is dependent on her carer for all her activities of daily living. Her mother has intermittent contact with the represented person and with the health professionals delivering services to the represented person.
The Review
10 The orders under review are dated 3 October 2001, by which the Public Advocate is appointed limited guardian and the Public Trustee plenary administrator of LA, the represented person.
11 The functions of the guardian were to decide where the represented person is to live whether permanently or temporarily; to decide with whom she is to live and to consent to any treatment or health care on her behalf.
12 The guardian was also directed in the performance of her functions, and to the extent she is reasonably able to do so, to talk to the mother of the represented person, and seek her views and keep her informed of the decisions made.
13 The review of the administration order is a periodic one pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) (GA Act). The Public Advocate applied pursuant to s 86 of the GA Act for review of the guardianship order due for review in October 2006 so that both orders might be reviewed together. The orders sought in the Public Advocate's application were for the revocation of the existing order and the reappointment of the Public Advocate as limited guardian for a period of 2 years to determine accommodation and medical treatment.
(Page 5)
14 The review hearing was attended by the delegated guardian Ms Janine Hawker, (the Public Advocate), Ms Howe the primary carer, Ms Pam Toster and Ms Dianne Ferguson from the Disability Services Commission, Ms Sharon Gould from Regional Home Care Services. The represented person did not attend as she was recovering from the effects of major surgery.
15 The applications for review were heard on 7 August 2006. The review of the guardianship order was adjourned to 14 August 2006 for consideration of a submission by the Public Advocate that the primary carer could be appointed as limited guardian to consent to medical treatment.
16 On review of the orders the Tribunal must be satisfied that the represented person remains a person for whom a guardian and administrator can appointed and that she is in need of a guardian and an administrator before orders may be confirmed.
Capacity
17 The reports before the Tribunal indicate that the represented person has a diagnosis of cerebral palsy with severe physical disabilities and has a mild intellectual disability. Previous reports held on Tribunal files note that the represented person is dependent on others for all her personal care needs and in the management of her finances.
18 There was no challenge to the continuing incapacity of the represented person to make decisions in relation to her person or in relation to her financial affairs.
19 In respect to the guardianship order; all the elements in s 43(1) of the GA Act apply to the represented person: in that she is incapable of looking after her own health and safety; she is unable to make reasonable judgments in respect of matters relating to her person and is in need of oversight and care in the interests of her own health and safety.
20 In respect of the administration order, the represented person remains a person who is unable by reason of a mental disability to make reasonable judgments about her estate and she is therefore a person for whom an administration order can be made (s 64 GA Act).
(Page 6)
Need
21 There was support for the continuation of the appointment of the Public Trustee as administrator from all those who attended the hearing including the Public Advocate.
22 A report from the Public Trustee notes that the represented person has a pension and a mobility allowance paid by Centrelink and that the Public Trustee pays her board and lodging and various other regular expenses and advances funds from her savings for the purchase or payment of other needs from time to time in response to particular requests from her carer. The report recommends that the Public Trustee continue to manage the represented person's finances.
23 Reports from Ms Toster and Ms Gould also support the continued need for a guardian.
24 The Public Advocate questioned at the hearing whether there is a need for the reappointment of the Public Advocate as guardian.
25 The submission is that the needs of the represented person in relation to accommodation and services have been met and that only the need remaining for a guardian is for authority to consent to medical treatment on her behalf and primary carer could be appointed as guardian with this function.
Accommodation
26 The Public Advocate reported at the review hearing that although the accommodation placement had been originally envisaged as a short term one, the represented person remained well accommodated in that placement; she is contented and happy with the care family and that no one is challenging the arrangement. It is submitted that as the accommodation of the represented person is settled and no changes are anticipated that there is no need for a guardian to make accommodation decisions for the represented person.
27 The DSC Manager, Ms Toster, reports that the mother of the represented person remains in intermittent contact, perhaps once every three months, with the represented person. She notes that the represented person misses her mother and her mother misses her. Sometimes her mother questions the care being provided to the represented person but she was not in a position herself to provide care. Ms Toster understands her to voice concerns about the placement and care of the represented
(Page 7)
- person from time to time but she has apparently not acted on those concerns.
Services
28 The represented person receives services from the Disability Services Commission and Regional Home Care Services who formally employ the primary carer. Ms Toster reports that a short and longer term care plans are being developed for the represented person and that it is usual for a family member to "sign off" on any proposed plan.
29 The Public Advocate submits that if changes were proposed in the care arrangements or services for the represented person that Regional Home Care Services had acknowledged, to her, their responsibility as the funded agency to liaise with all the interested parties to ensure the needs of the represented person are fully met. On this basis it is submitted that there is no need for a guardian to determine the services to which the represented person should have access.
Medical treatment
30 In relation to authority to consent to medical treatment for the represented person the Public Advocate submits that it is a question for the Tribunal to determine whether there is a need for a formal decision-maker to consent to medical treatment for the represented person.
31 The Public Advocate notes that the represented person suffers severe physical abnormalities associated with her diagnosis of cerebral palsy, and that she also suffers asthma and uses an inhaler daily. In the month prior to the review hearing the represented person had significant orthopaedic surgery performed intended to manage the pain she experiences as a result of her physical disabilities.
32 The guardian consented to the surgery which was conducted at Princess Margaret Hospital. The Public Advocate noted that as a consequence of the surgery the represented person will not be able to walk unaided, although it is also noted she had been a wheelchair user prior to the surgery being performed.
33 The Public Advocate proposes that as the primary carer has played a important and continuing role in the life of the represented person that it may be appropriate that she be appointed to make medical decisions.
(Page 8)
34 In the report from the Public Advocate the primary carer is noted to have acted as an advocate for the represented person in relation to her health needs and had explored medical treatments and alternatives to the recent surgery. She is said to have liaised closely with other service providers and to always take advice when addressing the needs of the represented person.
35 The Public Advocate notes that the primary carer has demonstrated a significant commitment to the represented person over the period of the appointment of the guardian. She refers to the "obvious affection" between the primary carer and the represented person. The Public Advocate notes that the primary carer is observed to speak with the represented person as a "loving family member" and notes "there was obvious respect for the represented person".
36 The Public Advocate submits that there is nothing in GA Act that prevents the appointment of the primary carer as the guardian of the represented person for the limited purpose of consenting to medical treatment on her behalf. The Tribunal is asked to consider whether this is a less restrictive alternative to the appointment of a Public Advocate as guardian with this function.
Contact with others
37 The Public Advocate reports that a request has been made by the represented person's mother that the represented person have contact with her sister who is currently in prison and with family members in a remote community. The report notes that the represented person did visit her sister at the prison however, the visit had not been repeated as it was not considered in the best interests of the represented person. The report refers to a future visit to extended family in the community. The primary carer is reported to have concerns relating to a previous visit, and thorough planning is said to be needed to ensure the represented person is well supported throughout the contact visit.
Reasons
38 There was no contest to the continuing need for an independent administrator to manage the funds of the represented person as she is unable to manage any aspect of these matters for herself. An administration order provides independent management and accountability to safeguard the financial affairs of the represented person whatever her care and living arrangements.
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39 Due to the represented person's complex health problems, her vulnerability and lack of family support she has a number of needs which can only be met by the appointment of a guardian with authority to decide personal matters for her.
40 Although there are a number of service providers involved in her care, all providing what are regarded as appropriate services to her, none is able to provide an independent voice for the represented person.
41 The accommodation of the represented person is closely associated with services provided to her, and a change in one may mean a change in the other. An appointed guardian will have formal authority to determine her place of living should issues arise in the future, for example should her mother challenge her placement or for some other reason the current carer can no longer fulfil this role. This is not simply a matter for the service providers to determine.
42 A guardian is needed to represent the interests of the represented person in the development of, and if appropriate to consent to, the care plan which is presently being developed by the DSC. A guardian is needed to formally engage services on her behalf. It is not, in my view, the role of service providers to go beyond that role of delivering services to the represented person, to act as it were, on the other side of that transaction to accept those services on her behalf and to determine if they are appropriate.
43 The represented person does not currently have a family member able and willing to play this role on her behalf. Despite efforts of the Public Advocate to engage the mother of the represented person in the period of the order, communication difficulties have been experienced and she has not played a role in decision making for the represented person. The appointment of an independent guardian is a safeguard for the represented person and provides certainty and clarity to those providing services to the represented person and to others about the scope of their role.
44 The represented person has multiple medical needs. She has a diagnosis of cerebral palsy. She also has asthma and requires daily medication. Significant health care decisions with long term consequences for the represented person have been made recently by the guardian. It is likely given her health problems that consent to medical treatment will be sought in the future. Since the represented person is not able to consent herself there is a need for formal authority in this regard.
(Page 10)
45 Family contact and visits to her community are critical to the maintenance of the represented persons' familiar and cultural relationships.
46 The decisions which may be made in relation to contact are complex as they may include balancing the needs of the represented person for contact with her family, her cultural needs, the maintenance of her relationships, her wishes and the need to limit the restriction on her rights with the need to ensure the proper protection of her health and safety. Exercising this judgment goes beyond the role and proper authority of a paid carer or service provider. Decisions to allow or restrict contact the represented person has with others should be made by a guardian with formal authority having regard to the sometimes competing considerations in s 51 of the GA Act which elaborates on the way in which a guardian acts in the best interests of the represented person.
Suitable appointment
47 The Public Advocate suggests that the appointment of the primary carer with the function to consent to medical treatment meets the needs of the represented person.
48 It is suggested that if the functions of an appointed guardian were limited to consent to medical treatment, that the known opposition of the Disability Services Commission (DSC) to the employment of family members or guardians in a paid carer role would not arise. It is reported that in communication with the DSC that no objection to the appointment of a guardian with functions limited to medical consent was made, but a paid carer having authority under a guardianship order to consent to services or to make accommodation decisions would be opposed.
49 It is not immediately clear why some limited functions are accepted and some are not by DSC, but may be related to the types of services the DSC itself provides.
50 Following the submission of the Public Advocate I considered whether a paid carer could be appointed guardian and concluded that s 44(1)(b) of the GA Act precludes the appointment of a paid carer in the role of guardian whatever the functions of the appointed guardian.
51 Section 44 provides:
"(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 ¾
(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."
52 Although I accept that the primary carer has in the past acted in the best interests of the represented person and is, according to all reports, devoted to her needs and is in all other respects suitable for appointment, because she is a paid carer her interests may conflict with those of the represented person and as a consequence she cannot, because of the operation of s 44(1)(b), be appointed as guardian.
53 Other sections of the GA Act appear to run counter to the appointment of a paid carer as a guardian:
54 Section 119 of the GA Act provides a regime for consent to medical treatment for persons incapable of giving consent, by someone in the life of that person. The operation of s 119 may be a less restrictive alternative to the appointment of a guardian.
55 Section 119(3)(c) provides that 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 can be a person who gives consent to treatment.
56 The provision manifestly excludes a paid carer from the role of consent giver under s 119 of the GA Act. It is clear that it was not intended that a paid carer perform this role. It would be a strange position if a paid carer was not authorised to provide consent to treatment in an informal way under s 119 of the GA Act, but a paid carer could be appointed guardian to give consent to that treatment.
57 Section 117 provides for the fixing of remuneration of administrators in some circumstances and the payment of a rate of remuneration from the estate of the represented person.
58 Section 117(2) of the GA Act provides that a guardian shall not receive remuneration for services rendered to the represented person. The
(Page 12)
- Public Advocate suggests that a question may arise whether the provision of care is included in, "services rendered" to a represented person as guardian if the functions of the guardian extend only to consent to treatment. Since the order is not limited to this function it is not necessary to take this any further.
59 Since there is no other person suitable or willing to be appointed guardian for the represented person, the Public Advocate is reappointed limited guardian with the functions to decide where the represented person is to live, to decide the services to which she should have access, to consent to medical treatment on her behalf and to determine the contact she should have with others and the extent of that contact.
60 The Public Advocate submitted and I accept, that contact by the Public Advocate with the mother of the represented person is made where possible consistent with the obligations under the Act (see s 51(2)(e)(g)(h)) and that there is no need to include a direction for contact in the order.
61 I consider that the disability of the represented person is a static one and her needs are likely to exist in the longer term so that five year orders are appropriate.
Orders
1. The Public Trustee of 565 Hay Street, Perth, Western Australia be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2. This order is to be reviewed by 4 August 2011.
3. The order be revoked and a guardianship order in the following terms be substituted for it:
The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road East Perth, Western Australia be 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) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person;
(d) To determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e) To determine the services to which the represented person should have access.
- 4. 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.
5. This order is to be reviewed by 14 August 2011.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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