MD

[2012] WASAT 145

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   MD [2012] WASAT 145

MEMBER:   MR M ALLEN (SENIOR MEMBER)

HEARD:   22 MAY 2012

DELIVERED          :   16 JULY 2012

FILE NO/S:   GAA 1435 of 2012

GAA 1246 of 2012

BETWEEN:   EG

First Applicant

BD
Second Applicant

AND

MD
Represented Person

Catchwords:

Guardianship and administration ­ Review of administration order and application for guardianship order ­ Likely breakdown of represented person's marriage and wife unwilling to continue to act as administrator or be appointed as guardian ­ Need for independent administrator ­ Public Trustee appointed as plenary administrator ­ Need for a guardian in relation to decisions about accommodation, treatment and rehabilitation ­ Whether represented person's parents or the Public Advocate should be appointed as guardian ­ Consideration of whether parents are suitable to be appointed because of their emotional involvement and whether independent person would be better able to make decisions ­ Conclusion that parents are suitable for appointment as joint guardians

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43, s 44, s 64, s 84, s 86

Result:

Administration order revoked and new order made
Guardianship order made

Category:    B

Representation:

Counsel:

First Applicant              :     N/A

Second Applicant          :     N/A

Represented Person       :     N/A

Solicitors:

First Applicant              :     N/A

Second Applicant          :     N/A

Represented Person       :     N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. On the application of a staff member of the State Head Injuries Unit, the Tribunal reviewed an administration order, first made in 2009 and confirmed in 2011, by which KD, the wife of MD, the represented person, was appointed his plenary administrator.  The Tribunal also considered an application by MD's father, BD, for the appointment of BD and PD, MD's mother, to be appointed as his joint guardians.  MD had received major head injuries in 2009 as a result of an assault, and was left with permanent and substantial cognitive and physical impairments.

2. There was no dispute that MD was a person for whom both guardianship and administration orders could and should be made.  As a result of the breakdown of the marriage between MD and KD, and because of difficulties that KD had experienced in carrying out the duties of administrator, KD did not wish to continue as administrator, and all parties agreed that the Public Trustee should be appointed in her place.  The Tribunal made such an order.

3. On the question of who should be appointed as MD's guardian, the State Head Injuries Unit (supported by the Public Advocate) opposed the appointment of BD and PD on the grounds that they did not fully appreciate MD's situation and were too emotionally involved in the situation to make objective decisions about MD's welfare.  They proposed the appointment of the Public Advocate as guardian.

4. The Tribunal considered that MD and PD were suitable to be appointed as MD's guardians.  They had a sufficiently realistic understanding about his circumstances and, although opposed to MD receiving residential rehabilitation services, were not opposed to him receiving a rehabilitation program in his or their home, where he was spending increasing amounts of time.  The Tribunal was also satisfied that BD and PD would encourage, and not oppose, an on­going relationship between MD and KD and, particularly, their teenage daughter.  Because BD and PD were willing and suitable to be appointed, the Public Advocate could not, and should not, be appointed as MD's guardian.

5. The orders are to be reviewed in one year's time.

Background

1. These proceedings concern Mr MD, who will be referred to in these reasons as MD.  MD is a 36­year­old married man, his wife being KD, and they have one daughter in her late teens.  MD and KD live together in the matrimonial home, although at the hearing of the proceedings on 22 May 2012, whether or not that arrangement would continue seemed most unlikely, for reasons that will appear below.  MD's father (BD) and his mother (PD) live not far away.

2. In August 2009, MD suffered massive head injuries as a result of a serious assault, requiring lengthy hospitalisation and subsequent rehabilitation (which is continuing), and he has been left with significant and permanent cognitive and physical impairments.

3. Soon after his injuries were sustained, and whilst he was still in hospital and sedated, KD was appointed by the Tribunal as MD's plenary administrator under the Guardianship and Administration Act 1990 (WA) (GA Act) so that she could deal with the financial affairs of MD and the family, both in the short­term and long­term.

4. The administration order was reviewed by the Tribunal on 26 August 2011 pursuant to s 84 of the GA Act. Dr F, a specialist in Rehabilitation Medicine, reported that MD continued to have 'a severe level of long term cognitive impairment' and that he 'remains in [a] confused and disoriented state and has global cognitive deficits'. KD was confirmed as MD's plenary administrator, with the order to be reviewed again in August 2016. At that time, the Public Trustee reported to the Tribunal that it had been necessary to seek further information from KD about the accounts lodged (for the period to 30 June 2010) regarding MD's assets and liabilities, and how superannuation and a possible compensation claim had been, or were to be, dealt with.

Current proceedings

1. In March 2012, BD lodged an application seeking a review by the Tribunal of the existing order by the Tribunal under s 86 of the GA Act seeking 'joint guardianship and an independent administrator'. That application seems to have been lodged as a result of a misunderstanding on BD's part and shortly thereafter he was granted leave to withdraw the application.

2. In April 2012, BD lodged an application under s 40 of the GA Act, seeking a guardianship order in which KD and BD would be appointed as MD's joint guardians. The application referred to concerns about decisions made, or to be made, and a lack of information about MD's current circumstances.

3. Shortly after that application was lodged, Ms G, who is a staff member at the State Head Injuries Unit (SHIU), which has been involved in MD's treatment and rehabilitation, applied (with leave) under s 86 of the GA Act for a review of the administration order. The application referred to issues regarding the breakdown of MD's and KD's relationship, their possible pending separation, KD's future inability to care for MD, and her (KD's) belief that it would no longer be appropriate for her to manage MD's financial affairs. The application sought the appointment of an independent administrator.

4. The two applications were heard together on 22 May 2012 at a hearing attended by KD, BD, PD, Ms G and two other staff members of the SHIU (Ms W and Ms A), and representatives of the Public Advocate and the Public Trustee.

Principles to be applied by the Tribunal

1. The principles to be applied by the Tribunal, in determining matters such as the present, are set out in s 4 of the GA Act and are well known. They do not need to be set out in detail, but can be summarised as follows:

   a)MD is to be presumed to be capable of making reasonable judgments and looking after himself unless the Tribunal is satisfied to the contrary.

   b)Administration or guardianship orders should not be made unless there are no less restrictive means of meeting MD's needs, and any orders should be in terms that are least restrictive of any decision­making capacity he may have.

   c)As far as possible, the Tribunal must take into account the wishes and views of MD, to the extent that he is capable of expressing them or they may be inferred from previous expressions or actions.

   d)The Tribunal must have, as its primary concern, MD's best interests.

MD's capacity to make decisions or look after himself

1. For both the making of a guardianship order and the review of an administration order, the Tribunal must be satisfied that MD is not able to do or make reasonable judgments about the matters set out in s 43 and s 64 of the GA Act. It is not necessary to set out those matters, as all present at the hearing agreed that MD continued to be substantially impaired in cognitive functioning and decision­making regarding financial affairs and personal matters.

2. That view is, in my opinion, entirely justified.  Dr F, in a report dated 27 April 2012, stated that MD's residual neurological impairment means that he will remain severely and permanently disabled in physical and cognitive functioning.  He thought that MD's attendance at the hearing would not be in his best interests as he may become agitated and could make no contribution.  Ms G, in a report dated 7 May 2012, reported that MD had significant and on­going cognitive, behavioural, physical and functional limitations, including impaired orientation and severely impaired short­term memory.

3. In the light of the above, I consider, and find, that MD continues to be a person in respect of whom guardianship and administration orders can be made, because he is incapable of making reasonable judgments or decisions about the matters referred to in s 43 and s 64 of the GA Act, is unable to care for himself, and is in need of oversight, care and control in the interests of his own health and safety.

Need for guardianship and/or administration orders

1. In relation to whether MD continues to need a financial administrator and now needs a guardian to make certain decisions about personal matters, again, all parties agreed that MD had decision­making needs that could not be met by means less restrictive than the making of guardianship and administration orders.

2. In relation to MD's financial needs, the continuing needs are in relation to the management of his day­to­day and longer term financial affairs, a compensation claim and any financial aspects of the ending of his relationship with KD.  In relation to MD's personal affairs, there is a clear need for a decision­maker in relation at least to treatment decisions, future accommodation and services.

Who should be appointed as administrator?

1. In relation to the administration order, the Public Trustee reported continuing concerns regarding the operation of the current order.  The information requested in relation to the first set of accounts had been received in part, but some was still outstanding and the accounts had still not been able to be assessed.  The information required regarding the second set of accounts (to 30 June 2011) had not been received from KD.

2. KD said that although it was not yet clear what would happen to her marriage with MD, separation was a distinct possibility as she had commenced a relationship with another person.  For that reason, and because she had found it difficult to carry out the duties of administrator ­ for example, tax returns had not been done for several years ­ she did not wish to continue as administrator and she wanted some other person appointed.

3. BD and PD said that they were not in a position to undertake the duties of administrator ­ at least at the present time ­ and they supported the appointment of an independent administrator.  The Public Advocate's representative supported the appointment of an independent person who could work collaboratively with KD.

4. In the light of those positions, I consider it is appropriate and in MD's best interests for an independent appointee, such as the Public Trustee, to be appointed as MD's administrator.  The administrator will need plenary powers to deal with all of MD's financial affairs, to deal with legal representatives regarding the criminal injuries compensation and to negotiate any financial aspects of the breakdown of the marriage, should, as appears likely, that eventuate.  I will order that the Public Trustee's appointment as administrator be reviewed after one year, which should be long enough for the current lack of information to be rectified and progress made regarding settling other outstanding matters.

Who should be appointed as guardian?

1. This was the issue most in contention between the parties at the hearing.  Again, KD acknowledged that she should not continue to be the person who makes decisions on behalf of MD in the light of the likely end of their relationship.  As a consequence, BD and PD sought their appointment as MD's joint guardians, whilst the representatives of the SHIU and the Public Advocate submitted that an independent appointment, namely, the Public Advocate, should be made.

2. The evidence given by the parties at the hearing was, in most respects, not really in dispute in any significant way.  The main points of that evidence that is relevant to this aspect of the decision can be summarised as follows:

   a)A service provider organisation comes to MD's house to assist in MD's care and rehabilitation for 28 hours per week.  It is thought that MD would benefit from further, intensive rehabilitation.

   b)As MD's and KD's relationship has deteriorated, MD has been spending all or most nights at his parent's house.

   c)As the relationship has deteriorated, it is also apparent that the communication level and relationship between KD and MD's parents has also deteriorated.  BD and PD both said that they were frustrated and concerned by the lack of information they received about planning for MD's future, especially given the likelihood that KD would no longer be living with MD (and taking on a large part of his care).  They were especially concerned that decisions were in contemplation that MD should be admitted to a residential care facility for long­term or short­term care and rehabilitation.  It is abundantly clear that the relationship between KD and MD's parents is very tense, perhaps even hostile, although both BD and PD said at the hearing that they recognise that KD is in a very difficult situation and that she must make decisions about her own future.

   d)Fortunately, it seems that MD does not appreciate the extent of the tension in the relationship, even though, as the Public Advocate's representative said, it was very apparent when he visited MD.

   e)The representatives of the SHIU said that an independent decision­maker was preferable because there had been within the family over several years, prolonged and high levels of conflict and distress.  They thought that MD's parents had not fully grasped the extent of MD's disabilities and had over­expectations about the extent of recovery that was possible.  Their expectations and lack of understanding meant that the SHIU personnel were not confident about the parents' ability to make future decisions.  In particular, they doubted BD's emotional stability.

   f)The representative of the Public Advocate said that decisions about future treatment, rehabilitation, accommodation and services were all related.  Any decisions had to take into account the views of experts about MD's needs, and it was thought that the parents' views were too emotionally based ­ and what was needed was a decision­maker who could consult the experts and others involved in MD's welfare without emotion.

   g)BD and PD said that they were now more involved in MD's care and rehabilitation as MD was spending more and more time with them.  They spoke of taking him to activities such as the swimming pool and of the improvements they had observed in MD's physical capabilities around the house.

3. It was apparent from the evidence given at the hearing that there was also a tense relationship between the parents and the SHIU personnel and that there has not always been good communication ­ PD's evidence about unanswered telephone calls she had made to the SHIU was not really disputed.  The lack of communication was demonstrated by the position regarding the vital question of how MD's accommodation and rehabilitation was to be organised in future.  Initially, the evidence of the SHIU representatives was to contrast MD living with his parents on the one hand and the alternative of intensive rehabilitation on a live­in basis at a residential facility for an unspecified period of time to improve MD's living skills.  These two scenarios were presented as more or less mutually exclusive options ­ and BD and PD were both very reluctant to accept any form of residential care, even if only for a limited time.  They thought this option would be very distressing to MD, and it was clear from the report of the Public Advocate that MD had been able to clearly express a view that he did not want any form of residential care.

4. In fact, as Ms W said later in the hearing, there is another option available ­ which involved the organisation that operated a live­in residential rehabilitation facility also offering a rehabilitation program that could be delivered in the home.  It was clear, at the hearing, that BD and PD were not aware of this option, and they both expressed great interest in it and a readiness to consider it as an acceptable way for MD to receive the type of intensive rehabilitation he needed.

5. Section 44 of the GA Act relevantly provides that a person (or persons jointly) should be appointed as a guardian of another person only if they will act in the person's best interests, do not have any conflicting interests, and are otherwise suitable to act as guardian. In assessing suitability, the Tribunal is to take into account as far as possible, the desirability of preserving existing relationships within the family, the compatibility of the proposed guardian with any administrator, the wishes of the person concerned, and the ability of the proposed persons to perform the functions of guardian. Unless there is to be a joint appointment, the Tribunal should not appoint the Public Advocate as guardian unless there is no other person who is suitable and willing to act.

6. That last provision means that, in the present case and in view of BD and PD's wish to be appointed, I should not appoint the Public Advocate as MD's guardian unless I conclude that BD and PD are not suitable to be appointed.  The Public Advocate's representative was clear that a joint appointment of the Public Advocate with one or both of MD's parents was not supported.

7. No­one has asserted that BD and PD will not, if appointed, attempt to make decisions on MD's behalf in what they think are his best interests, or that their interests conflict with his.  As I have outlined above, the principal objections that have been asserted about their suitability are that they may not have a full appreciation of MD's circumstances and how best to deal with them, that they may not pay sufficient regard to expert opinion regarding MD's needs and how best to meet them, and that they may be too involved emotionally in the whole situation.

8. In my view, BD and PD can be forgiven an emotional response to the situation that has arisen involving MD.  Not only has his life been dramatically altered by his injuries, his marriage has now, almost certainly, come to an end and he will need care for the rest of his life.  Whoever is to make decisions for MD, it seems highly likely that his parents will have to take on the responsibility of providing day­to­day care for him over and above any care that can be provided by a service provider ­ in circumstances where, at least at the present time, MD does not yet appreciate the fact of the marriage breakdown but has sufficient awareness to know that he does not want to live in a residential facility.  However the situation is managed, and whatever decisions are to be made, MD faces a period of uncertainty that will be difficult, to say the least, for him and all his family members.

9. On the evidence before me, I am unable to conclude that BD and PD do not have a sufficiently realistic understanding of MD's situation.  They certainly are aware that he has significant and permanent impairments that require a high level of care.  They recognise the need for MD to have future rehabilitation and they have, when made aware of the option, expressed an acceptance of the idea of rehabilitation in the home.  In the circumstances, their unwillingness to support residential rehabilitation is understandable, given that no­one has asserted that they are not capable of providing care for MD on a longer term basis.  I am satisfied that, at least in part, any lack of understanding about MD's needs by BD and PD is due to a lack of information provided to them about the options.

1. I accept the proposition that MD's decision­making needs in relation to treatment, accommodation and rehabilitation services are all related and should not be separated.  It seems to me that BD and PD are going to be deeply involved in all of those aspects of MD's life, regardless of who is the decision­maker, and that it would be a major step to deprive them of the ability to make decisions for their son in favour of asking a government agency such as the Public Advocate to take these important decisions.

2. I have considered carefully the need for a guardian, whomever it may be, to try to preserve existing relationships within MD's family.  KD said at the hearing that even if their marriage failed, she expected to have an ongoing involvement in MD's welfare.  I assume that will be the case.  Although it was apparent, as noted above, that there is great tension in the relationship between BD, PD and KD, I was, in the end, impressed by the stated willingness of BD and PD to accept KD's choices about her life, and their stated desire, in particular, to ensure that MD's and KD's daughter had as much contact with her father as possible.  Although it was apparent that BD was more prone to express himself emotionally, it was equally apparent that PD is a stable and sensible person ­ and that, between the two of them, they will be able to consider issues and make decisions in a rational manner.

3. Overall, I am satisfied that BD and PD are suitable to be appointed as MD's joint guardians.  They will need to have the power to make decisions regarding accommodation, treatment and services.  However, they will also need to have the power to make decisions in relation to any non­financial aspects of any proceedings that may be commenced relating to the marriage of MD and KD (the Public Trustee will, as plenary administrator, have the power to make decisions regarding MD's financial estate in any such proceedings).  As with the administration order, the guardianship order should be reviewed in one year.

4. For the reasons stated above, the Tribunal makes the following orders:

   1.The administration order made on 26 August 2011 is revoked, and an administration order is substituted for it whereby the Public Trustee is appointed plenary administrator of the estate of MD with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).

   2.BD and PD are appointed joint limited guardians of MD with the following functions and powers:

   (a)to decide where MD is to live, whether permanently or temporarily;

   (b)to decide with whom MD is to live;

   (c)subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for MD;

   (d)to determine the services to which MD should have access; and

   (e)as the next friend, or guardian ad litem, of MD, commence, defend, conduct or settle any legal proceedings on behalf of MD, except proceedings relating to the estate of MD.

   3.These orders are to be reviewed by 22 May 2013.

   I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

   ___________________________________

   MR M ALLEN, SENIOR MEMBER