MD
[2021] WASAT 21
•16 FEBRUARY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MD [2021] WASAT 21
MEMBER: MS F CHILD, MEMBER
HEARD: 16 DECEMBER 2020
DELIVERED : 16 FEBRUARY 2021
FILE NO/S: GAA 4529 of 2020
PD
Applicant
MD
Represented Person
Catchwords:
Guardianship and administration - Application for the appointment of guardian and administrator - Represented person with diagnoses of multiple health problems including mild cognitive impairment and with reduced mobility - Conflict about where the represented person should live and whether she should travel interstate - Immediate proposal to travel - Family conflict - Public Advocate appointed guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(7), s 41(3)(a), s 43(1)(b)(c), s 64(1)
Result:
Public Advocate appointed guardian
Public Trustee appointed administrator
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Represented Person | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These are the reasons of the Tribunal for the decisions made on 16 December 2020 on an application for the appointment of a guardian for and an administrator of the estate of MD made by her son, P.
Background
MD is a 77 year old woman with diagnoses of multiple health problems and reported mobility problems. In May 2020 she was admitted to hospital after a fall and was described in hospital records as suffering from malnutrition. She was discharged to the care of her son M, and daughter-in-law who live in Queensland, with the agreement of MD's other children; daughter H and son P. MD then lived with M and his partner for some months in their home. When her daughter-in-law required surgery and could not provide the personal care MD needed, M arranged for MD to go into respite care. Despite not seeing MD for some months, H, MD's daughter advised M that she could care for MD at her home, in a regional city in Queensland.
Due to MD's mobility problems H was unable to provide care for MD and arranged for MD to return to Perth three days later. Reports indicate that she was sent without access to mobility aids and could not access the toilet on the flight. On her return to Perth, MD was sent to hotel quarantine due to COVID-19 requirements. Due to her high care needs she was then admitted to another hospital in Perth. After a period in hospital MD was discharged to a residential care facility where she was living at the time of the hearing.
The application was listed for hearing on 23 December 2020 but was brought forward urgently and heard on 16 December 2020 at the request of the facility manager at the residential care facility where MD was living. The facility manager advised that H had arrived from Queensland and had advised that she wished to take MD back to Queensland the following day.
Legislation and principles to be observed
In all proceedings in the Tribunal brought under the Guardianship and Administration Act 1990 (WA) (the GA Act), the Tribunal must observe principles set out in s 4 of the GA Act which provide that the primary concern of the Tribunal is the best interests of MD.
The principles also provide that MD is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal.
The principles say that orders should not be made unless they are needed; if the needs of MD can be met by less restrictive means then orders should not be made. If an order is made it should be in the least restrictive terms possible.
Finally, the principles require that in considering any matter relating to MD, the Tribunal should seek to ascertain her wishes as expressed at the time or gathered from her previous actions: s 4(7) of the GA Act.
To appoint an administrator of an estate the Tribunal must be satisfied that the person concerned is unable by reason of a mental disability to make reasonable judgments about all or any part of her estate and she is in need of an administrator of her estate: s 64(1) of the GA Act.
To appoint a guardian the Tribunal must be satisfied that the person concerned is incapable of looking after her own health and safety, unable to make reasonable judgments about her person, or is in need of oversight, care or control in the interests of her own health and safety and is in need of a guardian: s 43(1)(b)(c) of the GA Act.
If satisfied that a person is a person for who orders should be made, the Tribunal must then consider who should be appointed. The Tribunal may not appoint the Public Advocate as guardian unless satisfied that there is no one else suitable or willing to be appointed.
A plenary guardianship order may not be made unless the Tribunal is not satisfied that a limited order will meet the needs of the person concerned.
Evidence and material before the Tribunal
At the hearing on 16 December 2020 the Tribunal heard from MD, her daughter H and the facility manager Ms P (by telephone from the residential care facility), her son P and the representative of the Public Advocate (in person), and her son M (by telephone from Queensland).
The applicant, P said he had been advised to make the application by the social worker at the hospital prior to MD's discharge to the residential care facility. He proposed the Public Advocate and Public Trustee be appointed as guardian and administrator of MD. P said that orders were needed as there might be dispute between the children of MD about decision-making for her. He said that the Enduring Power of Attorney (EPA) which had been made by MD during her previous hospital admission in May 2020 which appointed his brother M, and sister H, as joint attorneys was not effective. He said the document had not been completed correctly and did not provide authority to consent to the Home Care Package which had been approved, arrange services, or to consent to residential aged care for MD if this was necessary.
M, MD's other son supported the need for orders as proposed.
M said that it had been a unanimous agreement that MD had come to live with him and his partner in Queensland after her discharge from hospital in July 2020. When MD had arrived she had been in a very poor state and could not walk but had improved in the three months she had been with them. M said he had arranged for MD to go into respite care as his partner required surgery and could not shower and care for MD during her period of rehabilitation. He said that H, his sister had interrupted that process the day before MD was due to be admitted to respite and had insisted that she care for their mother at her home. M says that H 'knew full well [of] MD's condition and how bad she was' but had confirmed to him that she could care for MD so he had put MD on a plane to travel to the regional city where H lived. M says that three days later MD was on a plane back to Perth.
M said he no longer wants to act under the EPA although he had been able to assist MD with paying her bills while she had lived with him.
H said that there had been an agreement that if MD required respite care she could come to H. H said that she had not seen or spoken to MD for months but spoke to her directly on the Sunday morning before MD was due to go into respite and had asked MD if she wanted to come up to her, to which MD had agreed. H said that M 'chucked a mental' 'and didn't like it' but had agreed to send MD to her.
When MD had arrived in Townsville H said MD 'could hardly walk'. H said '[M] knew already I was in an apartment'. H said she was 'not prepared' and 'had nothing in place' and that 'she did not know the whole picture'. When H says she told MD that she had nothing in place, H said that MD had then said she wanted to return to Perth.
H did not support orders or the appointments as proposed by P and M. H asserted that she knew MD very well and that MD is fiercely independent and has a very good memory.
Both P and H stated that MD had shown a marked improvement in her functioning since admission to the residential care facility. H said that she had come to Western Australia at MD's request and that MD wanted to return home with her to Queensland the following morning. H said she had arranged for MD to go into a community based live-in village in midJanuary and MD would stay at her partner's flat in the interim. She said that if MD stayed in Perth no one is going to see her but that if she returned with her she would be able to visit.
MD said that she was shocked that her son had made the application and wanted to live with her daughter in Queensland.
MD acknowledged that there were concerns about her weight loss when living at home and agreed that she has been described as malnourished when admitted to hospital. She said she was too tired to go shopping for food. She said she had not been admitted to hospital with a fall but had been put in hospital for quarantine.
The written material before the Tribunal includes the following:
The application, which asserts that MD has dementia, and lacks capacity and insight regarding her care needs, was unable to return home, her telephone had been disconnected, she would not eat and was not buying food, would not ask for help and that her house was not fit for habitation.
A medical report from Dr D dated 2 December 2020, referred to later in these reasons, an aged care assessment completed during the original hospital admission, a discharge summary from the hospital admission of 7 November 2020 to 23 November 2020 which reported social admission, Acopia, functional decline, a report from a hospital social worker dated 2 December 2020, and a report from the residential care facility .
The report from Dr D, a hospital doctor dated 2 December 2020 reports that MD has a mental disability of mild cognitive impairment diagnosed in May 2020, which is static but may deteriorate in the future. Dr D gives the opinion that MD is capable of simple financial matters but is incapable of more complex financial decision-making and health care decision-making. Dr D is unsure if MD has capacity to make accommodation and services decisions.
In the aged care assessment, the Aged Care Assessment Team (ACAT) refers to MD's admission to hospital following a fall in May 2020, to her memory problems, frailty, reduced mobility and mild cognitive impairment. MD is assessed as eligible for a Level 4 Home Care Package and for respite and residential care.
Hospital notes for the November 2020 admission which include notes of assessments from the geriatrician (17 November 2020) noting '[MD] can't make complicated financial and lifestyle decisions needs assistance [in] health decision[-]making' and the Occupational Therapist (OT) (20 November 2020) which records a Montreal Cognitive Assessment (MOCA) score of 21/30 with assessed impairments in memory and attention. A previous score of 17/30 from May 2020 is reported.
The notes refer to a '[history] of diagnosis of dementia and CVA (cerebro vascular accident)' and states that MD is dependent for aspects of personal care but with poor insight into the level of assistance required.
The OT reports that the ACAT 'highlighted patient functional decline, not coping at home following multiple hospital admissions including [discharge against medical advice] and failed [discharge]'. The OT concludes that MD is 'not safe for discharge home' and recommends nursing home placement.
In the hearing Ms P the facility manager, stated that MD had mild cognitive impairment which was 'definitely there' and a lack of insight into her abilities and needed support and would not be able to manage safely at home on her own.
The Public Advocate's representative submitted that that public appointments were required, to maintain an objective and independent oversight over MD's personal and financial affairs. The representative submitted that MD has multiple conditions that require oversight and monitoring, about which she lacked insight and understanding.
It was submitted that accommodation decisions are required. The representative reported that while MD was living in the community, in her own home, less restrictive alternatives were trialled, such as services coming in to provide care, but these, reportedly, did not meet MD's needs. Therefore, it was submitted that an independent investigation into suitable accommodation needed to be conducted. It was submitted that MD's return to Perth from Queensland, highlighted the need for a public guardian to determine the nature and the extent of the contact that MD has with others, and where she travels. The representative was not aware of whether MD's fitness to travel had been arranged but noted that it had been H's plan to travel with her mother back to Queensland on the day of the hearing.
It was also submitted that the family dynamics supported the need for an independent appointment.
In regards to administration, the representative submitted that MD owns her own home and that her estate will need to be managed, if residential care is required in the future. MD's passbook account required some protection and safeguarding.
At the conclusion of the hearing on 16 December the Tribunal made orders and gave brief oral reasons for the decision made. The following are those reasons edited to remove any identifying information, for clarity and to delete repetition.
It is obvious that all three of MD's children are very concerned for her and want what is best. Unfortunately, they are not all on the same page about what should happen and because of that, I am going to make orders so that the situation can be looked at by someone outside the family to ensure that there is a really good close look at MD's needs before any decisions are made. In the past, it seems, that there has not been ideal communication and it has led to decisions being made without people being fully informed of MD's needs probably to the detriment, unfortunately, of MD. That seems clear from the history that has been talked about today.
In respect of this application, I am satisfied, on the material before me, that the presumption that MD is capable of making reasonable judgments about her estate and her person is displaced. That material includes a number of documents, to which I am very briefly, going to refer. There is the aged care assessment which refers to a person with cognitive impairment and partial insight into her own limitations. The longstanding problems experienced by MD, and what is described as a deterioration in her physical and cognitive impairments. The history it appears, from this report, is that MD was assessed for the ACAT while in Hospital. This was in July of this year. The record says that she presented in May of 2020 following a fall at home and was transferred to Fremantle Hospital in late May for rehabilitation and her admission was complicated by active rheumatoid arthritis and malnutrition. The ACAT assessor determined - and I will just quote from the report:
It has been determined that [MD's] care needs can no longer be safely managed at home and that the family and [MD] would like to pursue the potential discharge to Queensland into the care of son, [M], and daughter, [H]. Both are happy to accept [MD] and understand she will most likely require permanent residential care.
An EPA is referred to in the aged care assessment.
Unfortunately, the EPA was not completed, as the acceptance is incomplete. Therefore, the EPA doesn't comply with the provisions of the Act to create an EPA.
Returning to the medical evidence in the ACAT: MD's history is given as cognitive impairment, agoraphobia, frailty, falls, malnutrition and other multiple health problems, as referred to in the Public Advocate's submissions.
There is a further assessment by Dr D who assessed MD while she was in Royal Perth Hospital. This is in a later admission following the return of MD to Perth in the circumstances where the arrangements for her care in Queensland broke down. M (MD's son) and his wife were caring for MD but MD's daughterinlaw needed a repair of her ACL ligament. Surgery was required. That was going to require some time where she could not be a carer and so respite was arranged. That was not supported by H, who took it on herself to insist that MD was sent up to Townsville where H lived to be cared for there. This was clearly not going to be possible because MD lacked the mobility to live in the property that H lived in. Within three days, MD was put back on a plane and sent back to Perth, and was admitted to hotel quarantine. Her care needs could not be met in that setting, according to the applicant and she was admitted to Royal Perth Hospital. It was in that context that this assessment was conducted by the team at Royal Perth Hospital. The medical notes of the assessments are included in the material before the Tribunal. The report filed by Dr D, dated 1 December 2020, refers to those assessments. In Dr D's opinion, MD does have a cognitive impairment and describes it as being diagnosed in May 2020 with a Montreal Cognitive Assessment score of 17 out of 30. This was later repeated in November and MD scored 21 out of 30. What is described is MD has a mild cognitive impairment. Her condition is described as static but Dr D considers that it may deteriorate in the future. MD is thought to be capable of managing simple matters. But it is the opinion of the doctor that she is probably not able to look after more complex matters. There are complex issues facing MD, which I will come back to. The view of the medical team is that MD is not able to make treatment decisions and they are unsure about services and accommodation. But the material from the ACAT assessment and the later reports is that MD was reluctant to accept services and was more reliant on family or neighbours, in particular, to provide quite basic care needs for her. The medical evidence is quite clear that a period of time when prior to her transfer to Queensland, MD was in very poor health. She had what is described in the notes as malnutrition. MD, acknowledges that she lost weight and she said she was simply too tired to cook or to shop and she acknowledges that she was not really well in that period. She gained weight significantly after staying with her son and daughter-in-law. What the material is telling me is that MD is quite vulnerable, as described in the report of the social worker from Royal Perth Hospital, and reliant on other people for her care needs to be met. This is supported, most recently, by the facility manger, Ms P, in her evidence today. She has described MD as lacking in insight. Although there have not been formal assessments conducted at the facility, the assessment of Mrs P who has over 20 years' experience in the area, is that MD would not be able to make decisions about her care and she is not able to manage her care. She would not be able to manage if she went home, for example, on her own without supports. The sons of MD; the applicant, P, and M, who was involved in the care of MD for a period of time from when she arrived in Queensland for several months, both agree that MD is someone who needs supports, and more formal support. As was explained by the applicant, there is a problem with the EPA that was executed in Fremantle Hospital. There is a need for formal authority because there are things that need to be done for MD. There are assessments to be conducted, packages to be signed for and arrangements to be made and there is no valid EPA. The opinion of the doctor is unsure about whether an EPA could now be made or about whether it has been done. But in any event, the other issue that the applicant raises is the conflict or the potential tension between the different views of the children of MD. That has been made clear in the hearing today, that they are not all on the same page about what should happen, about, for example, who should make the decisions, where MD should live, what her needs are. They have got quite different views and perhaps this is borne out of the amount of contact they had had with MD. Both sons have had more recent and more direct contact with MD. H explained when she spoke to M on the phone and said that MD should be transferred to Townsville, she hadn't spoken or seen her mother for months.
With the information that H had; she may not have fully understood the care needs of MD. She said that when she saw MD, she realised how poor her health was, how immobile she was and the care which she would need. It has been said, both by Ms P and H, that MD has improved in care. Obviously, she is eating proper meals and she's being supported in care. And those things, no doubt, have contributed to the improvement.
In terms of the application that is being made I am satisfied that the cognitive impairment reported in the material before me by Dr D, in the aged care assessment and in the other reports is a mental disability for the purposes of the GA Act.
I am also satisfied, on the material of Dr D, that MD is not able to make reasonable judgements about all of her estate. There are aspects of her estate that are complex that I find would be beyond MD to manage.
The EPA made by MD dated 25 June 2020, is incomplete. It is not valid for the purposes of the GA Act. It does not create an EPA because it does not meet the formality requirements to complete an EPA. So that does not represent a less restrictive alternative to the appointment of an administrator.
Someone needs to manage the financial affairs of MD.
As M explained, when MD was living with him, he was able to assist her with the banking with the hands-on assistance. That is now not possible because at present, MD is in residential care. Whether that continues is a matter for a guardian that I am going to appoint. But that informal arrangement is really not appropriate because there are steps that need to be taken, decisions that need to be made, perhaps documents that need to be signed by someone who has lawful authority acting on behalf of MD. So I find there is a need for an administrator of her estate.
In relation to the guardianship findings, I am satisfied that MD is incapable of looking after her own health and safety, unable to make reasonable judgments in matters relating to her person, and is in need of oversight care or control in the interests of her own health and safety. This was demonstrated by the need of MD for the care that she's receiving now, her deterioration, her loss of weight and her reported malnutrition for a period when she was looking after herself, when she said she was too tired to cook or to shop. I find that this demonstrates the inability of MD to look after her health.
I find MD does not have full insight into her care needs. If that was the case, she could have explained to her daughter, when on the phone from Townsville what her care needs were and why it was going to be difficult for her to be cared for in a flat with stairs. I am satisfied that MD does not appreciate her care needs and is in need of someone else to make judgments about her person.
The need for a guardian is simply this, is that MD and H have decided where she should live. The sons are concerned about MD's ability to care for herself if she was to return home. There is a disagreement about where the location of care should be. H has talked about a proposal for care in a village type setting in Townsville available in late January or mid-January next year and for temporary accommodation in her partner's flat for a period up to that time. The sons of MD are concerned, generally, that's why this application was made. There is a need for decisions to be made in a considered, careful way, assessing the needs of MD so that everyone's views can be canvassed, that the health professionals can have input into the care needs of MD when she's accommodated, and perhaps if she travels. If she's going to take a flight, what sort of care arrangements will need to be made to ensure her personal care needs are met, and her dignity is protected in that context.
Both sons say that there should be a guardian and administrator appointed. I take it from what the applicant has said, that the need for independent decision-making is to reduce the potential for a greater level of conflict between the children of MD. The applicant puts that view, and he is supported in that view by his brother, M. H takes a different view. She feels that MD has improved, that she is now able to make her own decisions, and that she has chosen to go to Queensland. That position is not consistent with the medical and other health professionals' reports.
The history of what happened in the transfer of MD from Brisbane to Townsville does indicate that there needs to be a careful consideration of any change of accommodation for MD. People need to think through and carefully plan any accommodation for MD, to consider what her care needs are, going forward, and to carefully plan how that is best to be achieved so that MD is not put in the position where her very fundamental personal care needs are not met and she is exposed to difficulties, in terms of her privacy and her dignity. It is important that there be a proper assessment of that.
I am not satisfied, in the current context, without formal orders being in place, that that would be the case. I think the proposal to travel tomorrow, may need to be reconsidered, but that would be a matter for the guardian.
I am going to appoint the Public Advocate of Western Australia as the guardian of MD. I am going to make it a plenary order for a short period of time because I think there are a number of issues that need to be considered.
The issue in relation to travel is the most immediate issue, as H says there is a plan to travel tomorrow. I think that the Public Advocate needs to take advice, perhaps from the medical people, and consider whether that is an appropriate choice for MD, and to review all of the circumstances, and hear from all family members. MD has a sister living in Western Australia. I haven't heard from her, but I consider that it would be essential for the Public Advocate in terms of making a judgment about the best interests of MD to hear from her sister. All the family members need to have input into the decision, and I think that is best achieved by the appointment of an independent guardian who can canvas all views, who has the necessary expertise, and the necessary contacts in Western Australia to be making appropriate decisions for MD.
While I accept that MD has expressed her wishes, both through the EPA, although it is not a complete document, and does not operate to provide a less restrictive alternative to the appointment of an administrator it is accepted as an expression of her wishes. MD has also explained today that she would like to go to live in Queensland with her daughter. That may be the end result; it is not for me to say where MD should live. It is only for me to say that I consider that MD is not able to fully appreciate the decision and the implications of it based on the material before me, and she needs someone else to step into her shoes; to work with her and with all of the parties to work out what is the best decision for her going forward.
In the context of the disagreement, if I can put it as high as that; between the children of MD, I consider that the Public Advocate should be appointed because none of the three children is suitable for appointment because of that disagreement between them. There needs to be someone independent of them, working out what is the best for MD going forward.
For those reasons, I appoint the Public Advocate as the plenary guardian of MD, and I approve the delegation of the Public Advocate of her functions as guardian to an officer, or employee employed in the Office of the Public Advocate.
The Public Trustee of Western Australia is appointed as the plenary administrator.
These orders are for a short period of time because we do not make plenary guardianship orders for lengthy periods because it is an imposition on a person, especially if they are areas of MD's life where she can make decisions for herself.
Orders
The Tribunal orders:
1.Time for service of the notice of hearing is shortened to less than 14 days to all parties pursuant to s 41(3)(a) of the Guardianship and Administration Act 1990 (WA), as the Tribunal has determined that exceptional circumstances exist.
The Tribunal declares that the represented person, MD is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
Administration
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The administration order is to be reviewed by 16 June 2021.
Guardianship
4.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed plenary guardian of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
5.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
6.The guardianship order is to be reviewed by 16 June 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
16 FEBRUARY 2021
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