MBL
[2005] WASAT 261
•28 SEPTEMBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MBL [2005] WASAT 261
MEMBER: MS J TOOHEY (SENIOR MEMBER)
MR J MANSVELD (MEMBER)
MS F CHILD (MEMBER)
HEARD: 6 MAY 2005
2 JUNE 2005
DELIVERED : 28 SEPTEMBER 2005
FILE NO/S: GAA 707 of 2005
BETWEEN: MBL
Proposed Represented Person
JL
Applicant
Catchwords:
Guardianship - Administration - Application for urgent guardianship order - Intense family conflict - Tribunal satisfied order could be made No family member suitable for appointment because of conflict - Public Advocate appointed limited guardian - Subsequent application for administration Guardianship order confirmed on review - Public Trustee appointed plenary administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 41, s 84
Result:
Public Advocate appointed limited guardian
Public Trustee appointed plenary administrator
Category: B
Representation:
Counsel:
Proposed Represented Person : Self-represented
Applicant: Selfrepresented
Solicitors:
Proposed Represented Person : Self-represented
Applicant: Cornerstone Legal
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
In this case, the Tribunal heard, at short notice, an application by JL for the appointment of a guardian for his 84‑year‑old mother, MBL. The circumstances were unusual in that MBL's husband had died three days earlier; her daughter, FL, had flown from Sydney to be with her; FL, and JL were in very serious conflict about where MBL should live and who should care for her; each maintained the other was unsuitable to act as guardian. Arrangements needed to be made urgently for MBL's accommodation and general care.
The Tribunal was satisfied that MBL was a person for whom an order could be made. It appointed the Public Advocate limited guardian for a period of two weeks so that the situation could stabilise and arrangements made for accommodation for MBL, and for her husband's funeral.
Several days later FL lodged with the Tribunal an application for the appointment of an administrator for MBL.
The review of the guardianship order and the application for appointment of an administrator were heard together. The Tribunal decided that the hostility between FL and JL was such that neither was likely to place their mother's best interests above the conflict. The Tribunal confirmed the appointment of the Public Advocate as limited guardian and appointed the Public Trustee plenary administrator.
Background
These reasons concern a decision made by the Tribunal on 6 May 2005 appointing the Public Advocate limited guardian for MBL, and decisions on 2 June 2005 confirming that order and appointing Public Trustee plenary administrator.
These written reasons have been prepared at the request of JL. As they are closely related in time and substance, the reasons for the decisions are combined here for convenience.
The hearing of the first application: 6 May 2005
At 2.30 pm on 6 May 2005, the Tribunal received a written application by JL through his solicitor, Mr Houweling of Cornerstone Legal, for the appointment of a guardian for MBL. According to the application, JL's sister, FL, who had recently arrived from Sydney, and whom he described as "a drug user and alcohol dependent", was taking their mother around Perth away from her nursing home; their mother had not been given the medication she required for her medical condition and an appointment was needed urgently so that decisions could be made about her accommodation and medical treatment.
Shortly before, and around the time of, receiving the application, Tribunal staff spoke by telephone with Mr Houweling who requested an urgent "ex parte" hearing and an order so that the police could locate MBL and return her to her nursing home.
Tribunal staff advised Mr Houweling of the notice provisions in s 41 of the Guardianship and Administration Act 1990 (WA) (the Act) including the requirement to serve notice on the person whom an application concerns.
At 4.00 pm, while the Tribunal was considering how it should deal with the application, and in particular how it could meet the statutory requirements for notice, the Senior Member was advised that JL, his wife and Mr Houweling, and MBL and FL, had come to the Tribunal counter for a 4.00 pm hearing. The Senior Member and two full‑time members convened a hearing which commenced just after 4.00 pm.
There was heated disagreement between the parties as to the circumstances in which they had arrived at the Tribunal. FL claimed she had received a telephone call from Mr Houweling at about 3.15 pm to say that there was to be a hearing 4.00 pm which would proceed in their absence if she and MBL did not attend; rather than return MBL to the nursing home at 2.00 pm as she had arranged, they caught a taxi to the Tribunal.
Mr Houweling disputed FL's account. When asked by the Tribunal what was it that gave him to understand that there was a 4.00 pm hearing, he said there was no such understanding; however, he had been making application for the matter to be brought on urgently because of the exceptional circumstances. Mr Houweling maintained he had had difficulty contacting the Tribunal and getting hold of "relevant persons" that the Supreme Court would make arrangements for a judge to hear such application orally but that had not been his experience with the Tribunal. Given that a Tribunal constituted by three members was convened in less than two hours of receipt of the application and sat into the evening to determine the application, the suggestion that the Tribunal was unresponsive is firmly rejected.
The Tribunal has not made any findings as to how the parties came to attend at the Tribunal. However, it states for the record that the Tribunal would consider it unacceptable for any party, and indeed the Tribunal itself, to be forced into a hearing in circumstances which in effect seek to circumvent the statutory provisions regarding notice. It is for the Tribunal to determine whether circumstances are exceptional, not for any party to create them.
Requirements for notice of a hearing
Ordinarily, all persons described in s 41(1) of the Act must receive 14 days notice of a hearing. However, s 41(3) provides that, in exceptional circumstances, the time for giving service to any or all of these persons may be shortened. Further, the Tribunal may dispense with the requirement to give notice to all or any of the persons in s 41(1) other than the applicant, the person in respect of whom an application is made, and the Public Advocate.
Mr Houweling submitted that the circumstances in which MBL now found herself, and the risk to her health and safety, were exceptional. He submitted that the Public Advocate could be given notice following the hearing and undertook to do so.
Mr Houweling's proposal regarding notice was clearly contrary to the provisions of the Act. However, the Tribunal decided that, regardless of the way in which the parties had arrived at the Tribunal for the hearing, the circumstances of the case were exceptional because there was an urgent need to resolve where MBL should stay that night and over the weekend and it was evident that the conflict between JL and FL was such that they would not resolve it themselves. The Tribunal ordered the period of notice be shortened and notice of the hearing dispensed with for all persons other than the applicant, MBL and the Public Advocate. It therefore adjourned the hearing for a brief period so that notice could be faxed to the Public Advocate. The hearing reconvened a short time later.
Submissions and evidence at the first hearing
From the outset it was evident that JL and his wife LL felt the deepest hostility toward FL and that this was reciprocated; any form of civil communication between them was virtually impossible. We have not set out here all details of the disagreements between them. For the most part they go only to demonstrate the level of hostility between them, in particular by JL and LL towards FL, and why the Tribunal appointed the Public Advocate in circumstances in which it would have far preferred to appoint a family member and allow MBL to return to her own home for the weekend, at least pending her husband's funeral.
In an affidavit in support of his application, and in oral evidence before the Tribunal, JL stated that his parents moved to Western Australia from New South Wales in mid‑2004; his father died on 3 May 2005; immediately prior to this she had had 24 hour crisis care at home but that was no longer available; as a result he had needed to put his mother into an aged care facility; his sister arrived in Western Australia from Sydney on the day their father died.
JL claimed that his sister was not a fit and proper person to care for their mother; she was in a relationship with another woman and living in flats just outside Sydney; she was "a drug user and alcohol dependent"; and in several telephone calls since their father died she had threatened him.
JL and LL said they were unable to care for MBL; the crisis care they had arranged when her husband went into hospital had "run out"; they found a nursing home south of Perth and, on the day after her husband died, took MBL to it. The following morning, Thursday, FL went to the nursing home and took MBL out for a visit and they had not returned; he believed his sister was taking their mother by public transport around various locations; on the day of the hearing he had been informed by the nursing home that FL would be returning MBL at 2.00 pm that day. He said that FL had taken their mother to her bank and attempted to gain access to her bank accounts.
JL stated that his mother had a heart condition which required constant medication and she suffered from Alzheimer's disease; he was concerned that FL did not have the means to care for their mother or provide her with the medication she required; the order was sought so that he could arrange for her proper care.
Annexed to JL's application was a copy of an Enduring Power of Attorney (EPA) made by MBL on 24 May 2005 in favour of JL. Witnesses to the EPA were Mr Houweling and his partner in Cornerstone Legal. JL maintained that the EPA demonstrated his mother's wishes that he look after her and that he should be appointed her guardian.
FL disputed almost every detail of JL's account. She did not agree that MBL had dementia. She maintained that MBL had had memory problems for some years for which she took medication but, otherwise, she was suffering only from the distress at her husband's death and the stress of being placed in a nursing home at the same time. She denied the allegations of drug‑taking and alcohol abuse.
JL claimed that, after taking her from the nursing home, FL took MBL to the funeral home where their father's body was; while there, FL had changed the arrangements he had made for their father to be cremated the following week. FL maintained that it was her father's wish that he be buried. She told the Tribunal that JL's arrangements for a cremation went against his express wishes and were extremely distressing for their mother. MBL stated that a cremation was totally against her wishes as well.
JL and LL maintained it was not an option for MBL to return to the rented house in which she had lived with her husband because she needed 24 hour care. The Tribunal asked if it was not possible for the parties to come to some agreement that would allow MBL her wish, stated orally and in a handwritten note to the Tribunal, to return home for the weekend with FL and until arrangements could be made for the funeral. FL told the Tribunal that she could take their mother to her former home and provide 24 hour care. However, LL said she could not cope having FL within two blocks of her house; she would feel unsafe because of the threats she had allegedly made and she did not want her two teenaged children in close proximity to FL even for a short time.
It was common ground between JL and FL that, other than themselves, MBL had no family in Western Australia; she had two sisters in NSW, one of whom was herself in a nursing home, and no one else proposing themselves, or suitable for appointment, as guardian for MBL.
Medical evidence
In support of his application, JL submitted three medical reports from MBL's general practitioner, Dr S. The first, dated 16 July 2004, to a local health service, referred to her "increasing Alzheimer's disease and difficulty living at home". The second, dated 26 April 2005, also addressed to the local health service, referred to her "dementia". The third, dated 6 May 2005, referred to Dr S's treatment of MBL since July 2004 for Alzheimer's disease and her need for assistance with various daily activities; he understood MBL had recently been admitted to the nursing home following assessment by the Bentley Health Service Department of Aged Care and Rehabilitation which, based on her disease, he considered was the appropriate facility for her current needs.
Dr S made himself available to the Tribunal by telephone during the course of the hearing. He outlined the medication MBL was currently taking for her Alzheimer's disease and angina. He stated that, in his opinion, MBL was not capable of making decisions in her own best interests in relation to her accommodation and health care; he saw no particular difficulty in her remaining in her own home as long as she had 24 hour care and supervision.
The Office of the Public Advocate
The Tribunal adjourned towards the end of the hearing, by which time it was early evening, and apparent the MBL needed urgently to have a meal and her medication and be put to bed. The Tribunal spoke by telephone to Ms Casey from the Office of the Public Advocate. Ms Casey advised that she had contacted the nursing home and established that MBL could return there immediately; in light of the conflict between JL and FL, it was her view that MBL's best interests would be served by the appointment of an independent guardian and that, if appointed, she would make the decision to return MBL to the nursing home at least for the weekend.
Reasons for decision
The Tribunal accepted the evidence of Dr S that MBL had Alzheimer's disease and was not capable of making decisions in her own best interests in relation to her accommodation and health care. MBL's demeanour during the hearing and her evident confusion and lack of real comprehension of what was happening around her supported this conclusion.
The Tribunal was satisfied that there was an urgent need for decisions to be made in relation to MBL's accommodation for the night and in the days following, and for her medical treatment.
The Tribunal found that there was no prospect of agreement between JL and FL despite MBL's evident distress. It was satisfied, in the circumstances, that her need for decisions to be made for her could be met only by a formal appointment. The hostility between JL and LL, on one hand, and FL on the other, was extreme and, in their mother's circumstances, quite shocking. Had FL not been in Perth at the time, it is likely that the Tribunal would have appointed JL guardian. That is not to reflect on FL whom, equally, the Tribunal would have appointed were it not for the presence of JL and LL. However, it was not satisfied that either could set aside their deep‑seated hostility even for long enough to make the decisions that needed to be made immediately for their mother. It was evident that even the arrangements for the funeral, including who would transport MBL to it, were unlikely to made in cooperation; further, that agreement as to when and how, JL and FL would see their mother, was most unlikely. In the circumstances, the Tribunal was not satisfied that either was suitable for appointment and therefore appointed the Public Advocate limited guardian with functions to:
(i)decide where MBL was to live, whether permanently or temporarily;
(ii)subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of MBL; and
(iii)to determine what contact, if any, MBL should have with other and the extent of that contact.
Application for the appointment of an administrator
On 11 May 2005, the Tribunal received from FL an application for the appointment of an administrator for MBL. FL maintained in her application that her mother did not have Alzheimer's disease but, rather, had slowly degenerative memory loss, which had not changed radically over the previous eight or so years. Although FL stated that she believed her mother was capable of making most decisions, especially regarding lifestyle matters, she was certain that she needed help with financial management. FL proposed that she be appointed administrator, and stated that she hoped to be appointed guardian and take MBL to New South Wales where her relatives lived and where her bank accounts were based.
The review application hearing: 2 June 2005
On 2 June 2005, the Tribunal reconvened to review, pursuant to s 84 of the Act, the orders made on 6 May 2005 and FL's application for the appointment of an administrator for MBL. None of the parties had legal representation. The hearing was attended by MBL, FL, JL and LL and their eighteen‑year‑old son, and Ms Casey. The Tribunal dealt first with the review of the guardianship orders.
Ms Casey provided the Tribunal with a written report outlining events since the first hearing. Arrangements had been made for JL and FL to visit their mother separately over the weekend immediately following the hearing; there was some conflict at the start of these visits which staff of the nursing home were able to resolve; the funeral went ahead, with arrangements made for JL and FL to visit their mother separately that day.
Ms Casey's report detailed MBL's need for 24 hour care and her preference to return to her home. At the same time, Ms Casey reported that MBL lacked insight into her needs, and her expressed wishes about where she wanted to live were not consistent, although she spoke about her strong desire to return to New South Wales. On the other hand, she had given Ms Casey a handwritten note, dated 31 May 2005, stating that she wished to live at her son's house; JL and LL had informed her that would be the wisest choice; she had a lot of memories but no real ties to New South Wales. Ms Casey concluded that, in her view, it would be difficult for either JL or FL to act impartially in making decisions for their mother.
The Tribunal had before it a report from Dr O, MBL's treating GP in New South Wales, who stated that he last saw MBL in September 2004 and was unable to comment on her current capacity to make reasonable decisions in relation to her personal health care, her living situation or her financial affairs. The Tribunal also had before it a letter dated 4 August 2004 from Dr GS, a consultant geriatrician in New South Wales, to Dr O. The letter stated that "medically and cognitively [MBL] is very stable", that she was not confused, enjoyed herself considerably, and was thinking "reasonably objectively" about a decision as to whether to move to Western Australia.
The Tribunal also had before it a report dated 27 May 2005 from the manager of the nursing home in which MBL had been placed after her husband's death. According to that report, she suffered from Alzheimer's type dementia and should have a guardian appointed.
Copies of the medical reports and the Public Advocate's report were provided to JL and FL, and a short adjournment taken so that they could read them. On resuming the hearing, they were asked for their views.
JL told the Tribunal that he would prefer the matter to remain a family issue, and suggested that his 18‑year‑old son, who was present at the hearing, be appointed guardian. The Tribunal rejected that proposal. JL then stated that he thought the disagreement would probably go on between him and FL, and that the appointment of a guardian for a further year, after which it could be reviewed, was probably a good idea.
FL was not happy with the appointment of the Public Advocate but she stated that, if it was necessary, and if it would help her mother's best interests, she was agreeable. She outlined what she proposed for her mother's care, including returning with her to New South Wales where she could live in a familiar environment in a small, elderly community, surrounded by friends.
MBL told the Tribunal that she came to Western Australia to be with her son, daughter‑in‑law and two grandsons; however, she regretted that she had ever come. She said she wished she had stayed closer to her daughter who had her interests at heart. In contrast, the Public Advocate provided the Tribunal with the handwritten note to her from MBL dated 31 May 2005 referred to above. Ultimately, a decision as to where MBL lives will be a matter for the appointed guardian.
Neither FL nor JL disputed that MBL needed assistance with managing her financial affairs which mainly comprised an overseas pension and funds in a bank account, which their father had always managed before his death; there was also a need for bills to be paid including from the nursing home. However, each maintained that the other was acting in his or her own interests and was unsuitable for appointment as administrator.
The Tribunal had before it copies of two EPAs, made by MBL. The first, made in 1997 in New South Wales, appointed MBL's husband and FL her attorneys. Unless recognised in Western Australia in accordance with provisions of the Act, this EPA would have no effect in Western Australia. The second, already referred to, made on 24 February 2005 in Western Australia, appointed JL her attorney. In view of Dr S's report dated 16 July 2004 stating that MBL presented with "increasing dementia and difficulty living at home", a question arises as to MBL's capacity to make that EPA at that time.
Ms Casey's report outlined discussions she had had with JL since the first hearing. Although not stated in so many words, it was evident from her report that JL was not entirely cooperative with Ms Casey in these discussions, particularly in relation to her request that he provide copies of bank statements and an inventory of MBL's property to the Tribunal hearing. JL in fact did bring some documents to the hearing although they were not much more than scant notes.
In response to questioning by the Tribunal, JL stated that, pursuant to the EPA made in February 2005, he had sold or donated the furniture his parents brought from New South Wales and various other household items; small items of particular sentimental value to his mother had been taken to the nursing home, and some valuable antiques put into storage.
Their father's will, a copy of which JL provided to the Tribunal, appointed JL and FL joint executors off his estate. However, it was apparent when the Tribunal discussed the Will with JL that he had no intention of providing FL with a copy; he maintained she could obtain a copy from the solicitors in New South Wales who drew up the Will. It was with considerable reluctance that he agreed that the Tribunal could make a photocopy after the hearing and give FL a copy.
Reasons for decision
In relation to the review of the guardianship orders made on 6 May 2005, the Tribunal's findings as to MBL's capacity and the need for a guardian to be appointed remained unchanged. Nothing in the evidence before the Tribunal supported a finding that MBL had capacity, at the time of the review hearing, to make the relevant decisions, or that she was no longer in need of a guardian.
Also for the reasons outlined above, the Tribunal was not satisfied that either JL or FL is suitable for appointment as MBL's guardian. There was nothing in their conduct at the review hearing to suggest that the conflict had diminished although possibly some of the intensity present around the time of their father's death had lessened. The Tribunal was not satisfied that either would put their mother's best interests above the conflict between them. There being no other person suitable and willing for appointment, the Tribunal confirmed the appointment of the Public Advocate.
In relation to the review of the guardianship orders, the Tribunal decided and ordered that:
(i)the order dated 6 May be confirmed;
(ii)this order be reviewed by 2 June 2006.
In relation to the application for the appointment of an administrator, the Tribunal was satisfied, on the evidence before it, that MBL was, by reason of mental disability, namely Alzheimer's disease, to manage any of her financial affairs. Further, that she needed someone to manage those affairs for her, including settling up her rental property, paying bills, receiving and managing her pension, and making arrangements to pay for her accommodation.
For the same reasons as outlined above, the Tribunal was not satisfied that JL or FL would put aside their conflict and act in MBL's best interests. It decided that an independent administrator was needed and appointed the Public Trustee.
The Tribunal made no orders in respect of the EPAs but notified the Public Trustee of their existence after the hearing. Section 108(2)(b) of the Act provides that an administrator has the same power to vary or revoke an EPA as the donor would have if he or she were of full capacity. Whether to exercise that power is a matter the Tribunal leaves to the administrator.
In relation to the application for the appointment of an administrator, the Tribunal decided and ordered that:
(i)the Public trustee be appointed plenary administrator of MBL's estate with all the powers and duties conferred by the Act;
(ii)this order be reviewed by 2 June 2006.
In each case the appointment was made for a period of 12 months in the expectation that there should be no need beyond that time for a decision about accommodation to be made, and in the hope that some resolution might be achieved in that time between JL and FL. The orders will be reviewed by the Tribunal in 12 months.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER
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