MD and RD - [2009] WASAT 74

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MD and RD [2009] WASAT 74

MEMBER: MS S GILLETT (SENIOR SESSIONAL MEMBER)

HEARD: 19 SEPTEMBER 2008, 14 NOVEMBER 2008 AND 14 JANUARY 2009

DELIVERED : 23 APRIL 2009

FILE NO/S: GAA 1842 of 2008
GAA 2881 of 2008

BETWEEN: MD
FC
Applicants
AND
RD
Proposed represented person

Catchwords:

Applications for guardianship and administration Need for a guardian Need for an administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43(1), s 64
State Administrative Tribunal Act 2004 (WA), s 78

Result:

Application for appointment of administrator dismissed
Application for appointment of guardian dismissed

Category: B

Representation:

Counsel:

Applicants: Self-represented
Proposed represented person : Self-represented

Solicitors:

Applicants: Self-represented
Proposed represented person : Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications for guardianship and administration were made to the Tribunal by the mother and sister of a 39‑year‑old woman who has an intellectual disability. The applicants sought the appointment of a guardian or an administrator specifically to provide the authority to undertake the role of employer of the proposed represented person's carers.
It was not in dispute, and the Tribunal found on the evidence, that the proposed represented person was a person in respect of whom both guardianship and administration orders could be made. The Tribunal was satisfied, however, that her needs could be met by other less restrictive means and without the making of the orders sought. The Tribunal found that the proposed represented person's needs were being appropriately met and decisions were being made in her best interests through the existing arrangements already in place.
Accordingly, the Tribunal found the proposed represented person not in need of a guardian or an administrator and dismissed the applications.

Background

RD is a 39‑year‑old woman with an intellectual disability and with epilepsy. She lives in her own home, is supported by 24‑hour care and has an involved and supportive family. RD's mother, MD, and sister, FC, the applicants, lodged an application to the Tribunal for a guardianship order on 8 August 2008, and subsequently, lodged an application for an administration order on 15 December 2008. The applicants proposed that they be appointed jointly.
The sole basis for the applications made by the applicants concerns their wish to become employer of RD's carers. The Disability Services Commission (DSC) provides funding for RD's carers and these funds are administered by a support agency that provides accommodation and carer support. The applications were precipitated by the support agency's advice to RD's family that changes in industrial relations requirements meant that existing care arrangements could not be maintained unless overnight carers were to be employed under 'private and domestic arrangements'. This would require the person requiring care, or someone acting on their behalf, to sign individual employment contracts with each carer.
The applications were heard over three hearings. Oral reasons for the decision of the Tribunal in respect of both applications were delivered at the conclusion of the hearing on 14 January 2009. These written reasons are provided at the request of the Public Advocate and the support agency, pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA).

Hearings

In addition to written applications, the following written submissions were provided to the Tribunal prior to the first hearing on 19 September 2008:
•Dr L, in a report dated 25 July 2008, advised he has known RD for seven years as her general practitioner. RD has a diagnosis of petit mal epilepsy and a severe intellectual impairment from birth and, in Dr L's opinion, she is incapable of making reasonable decisions about any major aspect of her life.
•Mr K, the service coordinator of the support agency that provides social and carer support to RD, provided the following information in a report dated 30 July 2008. He advised that RD has resided in a purpose‑built rental unit for approximately three years and that she has 'personal assistants who provide 24‑hour live‑in support to develop and maintain her independent living skills'. Whilst RD is 'able to understand and follow simple instructions', she is 'unable to understand complex information, nor can she make complex decisions'. The report further states that RD is 'unable to manage day‑to‑day budgeting decisions and requires daily support with managing her finances'.
The first hearing on 19 September 2008 was attended by:
•MD, applicant and mother of RD;
•FC, applicant and sister of RD; and
•MM, a service coordinator of the support agency that provides social and carer support to RD, and sister of RD.
MM outlined the reasons for the application to the Tribunal. She said that due to changes to the Federal industrial laws, the support agency was unable to continue to provide the same level of service for those of their clients who required 24‑hour care. MM explained that this was due to the requirement that carers be paid a minimum hourly rate, and consequently, the previous arrangement, whereby carers working overnight were paid a standby rate for the hours that they were on‑call but asleep, could not be used.
MM stated that as RD's family wanted her existing care arrangements to be maintained, and as RD's funding package from DSC was insufficient to accommodate the increased amount payable to overnight carers, the support agency had sought legal advice as to alternative ways of maintaining the existing service for RD. Based on legal advice obtained by the agency, MM said RD's family had been advised that a family member could take on the role of employer and sign individual employment contracts with carers on RD's behalf, and that to do this, an application should be made to the Tribunal to be appointed as a guardian with this authority. MM explained that the support agency had received legal advice that as such contracts are 'private and domestic arrangements', the industrial relations requirements do not apply. MM said that the support agency recognised that RD lacked the capacity to sign an employment contract herself and it was for this reason that her family were seeking the authority to do so on her behalf.
MD said that she had not yet signed any employment contracts on her daughter's behalf but that there had been no changes made to the existing care arrangements. In respect to the management of RD's finances, MD advised that she is sole signatory of her daughter's bank account and that RD's carers also have access to these funds. MD oversees the account and advised that this arrangement works well.
The Tribunal adjourned the hearing to 14 November 2008 and referred the matter to the Office of the Public Advocate (OPA) for investigation and the provision of a report to the Tribunal in relation to the background to the application, and consideration as to whether an appointment was needed for the purpose of managing RD's funding from DSC and the employment of carers for RD. Additional information was also sought from DSC, as the agency funding both the support agency and providing the accommodation support funding for RD; and from the support agency as to the possible legal implications for an individual signing the proposed employment contracts.
The following documents were received by the Tribunal prior to the second hearing on 14 November 2008:
•A letter from DSC, dated 24 October 2008, which confirms that RD has been allocated accommodation support funding and that she receives these services via the support agency. Attached to this letter were lengthy policy statements concerning accommodation support funding parameters, business rules and funding portability.
•A report from the Public Advocate, dated 12 November 2008, which outlines the different types of models of management of accommodation and support service provided by the support agency. The Public Advocate advises that the support agency currently administers funding provided by DSC for accommodation and support services to clients under disability. The report further advises that proposed Federal Government industrial relations changes will affect some types of support arrangements requiring overnight care, because overnight hourly carer rates will increase. Because the allocated funding will not increase, this will result in a need to decrease the level of care each client receives. Legal advice provided to the support agency is that 'if a person with authority takes over the role of recruiter and employer of funding and employs carers under a 'private and domestic arrangement' which falls outside federal industrial relations laws and within state‑based case law, current wages could be maintained'. The Public Advocate also advised that the proposed role of recruiter and employer does not appear to fit within the authority of a guardian.
The hearing reconvened on 14 November 2008 and was attended by:
•MD;
•FC;
•RD;
•MM;
•DG, representing the support service;
•A representative of OPA; and
•SC, representing DSC.
DG explained to the Tribunal the terms under which any employment contract between an appointed administrator or guardian and a carer would operate. He said that the administrator or guardian would recruit and employ the carers. His agency would be responsible for the administrative component and would continue to administer the funding allocated to RD. DG undertook to provide a copy of the legal advice obtained by the support agency.
SC advised that DSC encouraged support agencies to be as flexible as possible in relation to how funding is utilised, in order to best meet the needs of the individual who has been allocated accommodation support funding, and she indicated that DSC was supportive of the arrangements that the support agency was putting in place in respect to the employment of carers. SC was unable to clarify how other service providers funded by DSC were managing the changes in respect to payment for overnight carers; however, she undertook to provide further written advice to the Tribunal concerning the approach taken by other service providers.
MD advised that since the last hearing, she had had a visit from someone from the support agency and she had signed the employment contracts in respect to RD's carers.
Given that the particular authority sought by the applicants - that is, to take on the role of employer ‑ does not appear to fit within the authority of a guardian, the Tribunal invited the applicants to lodge an application for administration so that consideration could be given as to whether this authority, if needed, may be more appropriately set out in an administration order.
The hearing was adjourned to 14 January 2009 for the Tribunal to seek further information and clarification of the issues. The following documents and submissions were received by the Tribunal prior to the hearing on 14 January 2009:
•An application for administration was lodged with the Tribunal on 15 December 2008; the applicants being MD and FC;
•A copy of the legal advice dated 6 February 2008 obtained and provided by the support agency concerning the employment of carers for individuals with a disability who have been allocated accommodation support funding from DSC. This letter refers to concerns held by the support agency as to how the existing arrangement, whereby overnight carers are paid at a much lower rate, can continue, given the changes to employment law. The advice given addresses both persons who have legal capacity and those with an intellectual disability who do not have legal capacity. In respect to persons without legal capacity, the advice proposes that a formally appointed administrator could act on behalf of the represented person in relation to employment contracts, and that such an arrangement, being 'an employer of only one or two individuals and for personal services only, would not be subject to the same employment conditions'. The advice stresses that where a family member was to be appointed as administrator; the proposed administrator 'should consider their position carefully and possibly be told in each case that they may like to seek independent advice on their own exposure'. The letter further notes that there are carers being employed directly by family members on behalf of the person requiring support and that this 'is currently being done on a fairly informal basis'.
•On 27 November 2008, DSC provided information in relation to the Shared Management Model of its service delivery. The submission did not provide an explanation of why there is, or may be, a need for a guardian or an administrator to be appointed to sign employment contracts with carers. DSC further stated it was unable to provide any information as to how other service providers funded by DSC were managing the changes in respect to payment for overnight carers and, in particular, whether other service providers had restructured the employment of carers so that a family member or another individual now signs employment contracts.
•In response to a further request from the Tribunal, DSC advised, by letter dated 11 December 2008, that no further information was available from DSC as to the arrangements for payment of carers and that 'the Commission does not monitor individual employment arrangements agencies make with staff'.
•The support agency responded to a further request by the Tribunal by letter received on 8 December 2008, which stated that they had no further information to provide.
The third and final hearing on 14 January 2009 was attended by:
•MD;
•FC;
•RD;
•MM; and
•a representative of OPA.
The Tribunal set out the documentation received since the previous hearing and the further requests made by the Tribunal to the support agency and to DSC, which did not result in any further information as to the need for a formal authority. No further information was provided and no submissions were made by parties at the third hearing.

Relevant legislation

Section 43(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) provides that the Tribunal may appoint a guardian for a person if it is satisfied that the person concerned:
(a)has attained the age of 18 years;
(b)is ‑
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian,
…
Section 64 of the GA Act provides that the Tribunal may appoint an administrator for a person if it is satisfied that the person concerned:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate …

Principles to be observed

The principles to be observed by the Tribunal in dealing with proceedings commenced under the GA Act are set out in s 4 of that Act. As they apply here, they are:
•the Tribunal's primary concern must be RD's best interests;
•RD is presumed capable of 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;
•a guardianship or an administration order shall not be made if RD's needs could, in the opinion of the Tribunal, be met by other means less restrictive of her freedom of decision and action;
•a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient to meet RD's needs;
•an order appointing a limited guardian or administrator must be in terms that, in the opinion of the Tribunal, impose the least restrictions possible, in the circumstances, on RD's freedom of decision and action; and
•the Tribunal must, as far as possible, seek to ascertain RD's views and wishes.

Findings and reasons

Capacity

In this case, two applications for orders were made ‑ one for guardianship and one for administration. Although there are slightly different requirements to be satisfied in making these orders, both depend on evidence in relation to RD's capacity to make reasonable judgments in relation to particular matters.
The Tribunal had adequate medical evidence, as well as evidence provided at the hearings, to make the following findings in this regard:
•RD is cognitively impaired and is incapable of looking after her own health and safety. She is dependent on others for her care and welfare, and is therefore a person for whom a guardianship order can be made.
•RD is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to her estate, and is therefore a person for whom an administration order can be made.

Wishes and best interests of RD

RD did not attend the initial hearing; her treating general practitioner, Dr L, advised that attending would not be in her best interests as she 'would probably get confused, upset, disorientated by the trip and the formal setting of a hearing and would not contribute'. RD was present by telephone, at the subsequent hearings, however due to the nature of her disability, she was unable to express her wishes.
Whilst it was not possible for the Tribunal to ascertain the wishes of RD, the Tribunal formed the view from the evidence provided that RD has very positive and supportive relationships with her family who appear to allow her as much autonomy as is appropriate while making decisions on her behalf and in her best interests.

Need for a Guardian and or an Administrator

As set out in the GA Act, the appointment of a guardian or an administrator requires the Tribunal to find there is a need for an order. That entails consideration of whether the needs of the person can be met by any means less restrictive of the person's freedom of decision and action.
The evidence before the Tribunal is that family members in similar circumstances often informally undertake the role of employer of carers for persons who are cognitively impaired and who do not have legal capacity. Reference was made to the existence of such informal arrangements by the Public Advocate in her report and in the legal advice provided to the support agency. The DSC, as the funding agency, has provided clear advice that it has no concerns with this kind of arrangement.
The Tribunal invited the support agency to provide further submissions as to the need for a formal authority but no further information was provided. At the hearing on 14 November 2008, MD advised that she had signed an employment contract for RD's carers since the previous hearing. The existing arrangements in respect to RD's carers appear to be working in her best interests and the Tribunal is not satisfied that a formal authority is needed at the present time. The present arrangement can therefore be considered a less restrictive alternative to the appointment of an administrator or guardian.
The Tribunal has before it evidence that RD's finances are being managed by a family member, namely, her mother, MD, who is one of the applicants in this matter. The Tribunal is satisfied in this case that the informal arrangement with regard to RD's finances is operating in her best interests and this is a less restrictive alternative to the appointment of an administrator.

Similarly, RD's family is making guardianship‑type decisions on her behalf, and the Tribunal is satisfied that these decisions are being made in her best interests.
In the Tribunal's view, if it was established that RD did need someone with formal authority to sign employment contracts with the carers; this function would be more appropriately performed by an administrator than a guardian.

Conclusion

After considering all the evidence available prior to and at the hearings, the Tribunal finds that there is no identified need for the appointment of either a guardian or an administrator in this case.

Orders

The Tribunal made the following orders:
1.The application for administration is dismissed.
2.The application for guardianship is dismissed.

I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS S GILLETT, SENIOR SESSIONAL MEMBER