MG
[2015] WASAT 50
•2 APRIL 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MG [2015] WASAT 50
MEMBER: DR D STEPNIAK (SENIOR SESSIONAL MEMBER)
HEARD: 6 DECEMBER 2013 AND
2 APRIL 2014
DELIVERED : 2 APRIL 2014
PUBLISHED : 8 MAY 2015
FILE NO/S: GAA 3520 of 2013
MATTER: MG
Represented Person
Catchwords:
Guardianship Review of order appointing Public Advocate as limited guardian Ongoing family conflict Suitability for appointment as guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 3(1), s 4, s 43, s 44, s 45, s 46, s 51, s 64, s 65, s 84, s 90, s 112
Result:
Order confirmed and Public Advocate reappointed as limited guardian
Summary of Tribunal's decision:
On review of a guardianship order made one year earlier for the represented person, an elderly woman with dementia, the Tribunal confirmed the appointment of the Public Advocate as her limited guardian. Due, in large measure, to an ongoing family conflict, the Tribunal found that the represented person's niece was not suitable for appointment as limited guardian, as her appointment would cause the family conflict to directly and adversely affect the represented person. In the absence of other persons suitable and willing to act as guardian, the Tribunal confirmed the order and reappointed the Public Advocate.
Category: B
Representation:
Counsel:
Represented Person : N/A
Interested Party - EV : N/A
Solicitors:
Represented Person : N/A
Interested Party - EV : Hammond Legal
Case(s) referred to in decision(s):
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These written reasons for decision follow the hearing of a periodic review of an order made by the State Administrative Tribunal (Tribunal) on 6 June 2013, appointing the Public Advocate as limited guardian of MG (represented person), an elderly woman diagnosed with dementia.
The review of the guardianship order commenced on 6 December 2013 and concluded on 2 April 2014, when, by order of the Tribunal, the order under review was confirmed and the Public Advocate was reappointed as the represented person's limited guardian, the order to be reviewed by 6 December 2018. Oral reasons for the decision were given at the conclusion of the hearing on 2 April 2014.
Subsequently, the Tribunal acceded to a late application requesting that written reasons for the decision be published so that the issues addressed and reasons for the decision could be readily accessed by all interested parties.
The legislative framework
Periodic review of orders
Section 84 of the Guardianship and Administration Act 1990 (WA) (GA Act) requires the Tribunal, when making an order, to specify a date no later than five years from the date of the order by which the order is to be reviewed.
Section 84 provides:
The State Administrative Tribunal shall
(a)when it makes a guardianship order or an administration order or any order amending, continuing or replacing an order specify a period, not exceeding 5 years from the date of the order, within which the order shall be reviewed; and
(b)ensure that the order is reviewed accordingly.
Tribunal's powers on review
Section 90 of the GA Act provides that when reviewing an order the Tribunal may decide that it is in the best interests of the represented person to:
•confirm the order renew the existing order;
•amend the order change the terms of the order; or
•end the order, or end the order and replace it with a new order.
In reviewing orders, the Tribunal may remove a guardian or administrator, or appoint additional guardians or administrators.
Section 90 of the GA Act states that:
(1)Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order
(a)amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;
(b)revoke the order, or revoke the order and substitute another order for it; or
(c)without limiting paragraphs (a) and (b)
(i)revoke the appointment of any guardian or administrator;
(ii)appoint a new or additional guardian or administrator;
(iii)appoint an alternate guardian.
…
Considerations on review
On review of the existing orders, as with the making of orders on new applications, the Tribunal must consider whether the represented person is a person for whom orders may be made, whether she is in need of orders and, if so, who should be appointed her guardian.
Section 43 of the GA Act lists the factors of which the Tribunal must be satisfied in order to make a guardianship order (new or following a review).
First, the Tribunal must be satisfied that the person of 18 or more years of age is:
•not capable of looking after their own health and safety;
•not able to make reasonable lifestyle decisions; or
•in need of 'oversight, care or control' for their own health and safety or for the protection of others.
Secondly, in addition to one or more of the above three criteria being satisfied, the Tribunal must also be satisfied that the person is in need of a guardian.
When satisfied of both of these requirements, the Tribunal may declare that person to be in need of a guardian, and if it does so, the Tribunal is required to spell out the criteria of which it was satisfied and to appoint a plenary or limited guardian or guardians subject to conditions or restrictions the Tribunal deems appropriate. If appointing a limited guardian, the Tribunal is required to specify the limited guardian's functions as provided for in s 46 and listed in s 45 of the GA Act (see below).
However, even if satisfied of both the requirements, the Tribunal, acting in accordance with the principle set out in s 4(4) of the GA Act (see below), may elect not to declare a person in need of a guardian where the person's needs can be met in some other way that is less restrictive of the person's freedom of decision and action.
Section 43 of the GA Act provides:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40
(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,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint
(d)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of a guardian, it shall also declare the matter or matters set out in paragraph (b) of that subsection of which it is satisfied.
…
(3)An appointment under subsection (1) or (2a) may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit.
(4)An order appointing a limited guardian shall specify the functions that are vested in the limited guardian under section 46.
Overarching principles
The GA Act's provisions relating to the review of a guardianship order are subject to the principles set out in s 4 of the GA Act.
Section 4 states seven principles, in the following terms:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
Criteria for appointment of a guardian
The GA Act lists the criteria the Tribunal is to apply in determining who to appoint as guardian. The essential qualifications set out in s 44 of the GA Act require a guardian to be someone who:
1)is 18 years of age or older, and has consented to act (s 44(1)); and who,
in the Tribunal's opinion;
2)will act in the best interests of the person (see s 51 of the GA Act below for an explanation of this requirement) (s 44(1)(a));
3)does not have a conflict of interest with that person (s 44(1)(b)); and
4)is otherwise suitable to act as the guardian of that person (s 44(1)(c)), which in accord with s 44(2) is to be determined by taking into account:
•the desirability of preserving the person's existing family relationships (s 44(2)(a));
•their compatibility with the person and any administrator (s 44(2)(b));
•the wishes of the represented person (s 44(2)(c)); and
•whether they will be able to perform the guardianship functions (s 44(2)(d)).
Section 44 of the GA Act provides as follows:
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
Acting in the best interests of the represented person
Section 51 of the GA Act explains the meaning of the s 44(1)(a) requirement that a guardian must act in the best interests of the person they represent. Section 51 states that while a guardian is entrusted to act according to his or her opinion of what is in the best interests of the represented person (s 51(1)), a guardian will be deemed to act in the represented person's best interests if as far as possible the guardian:
•acts an advocate for the represented person (s 51(2)(a));
•encourages the represented person to live in the community and become involved in the life of the community (s 51(2)(b));
•encourages and assists the represented person to become able to take care of themselves and make reasonable lifestyle decisions (s 51(2)(c));
•protects the represented person from neglect, abuse or exploitation (s 51(2)(d));
•consults the represented person, and takes their wishes (expressed or otherwise discerned) into account (s 51(2)(e));
•acts in a way that is least restrictive of the rights of the represented person but also consistent with their proper protection (s 51(2)(f));
•maintains the represented person's supportive relationships (s 51(2)(g)); and
•maintains the represented person's familiar cultural, linguistic and religious environment (s 51(2)(h)).
The precise wording of s 51 of the GA Act is as follows:
(1)Subject to any direction of the State Administrative Tribunal, a guardian shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if he acts as far as possible
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
…
Functions performed by guardians
Section 45(1) of the GA Act likens the nature and powers of a plenary guardian to a parenting order made by the Family Court. Section 45(2) of the GA Act lists what plenary guardians may do, and in s 45(3), s 45(4A) and s 45(4) what they cannot do.
However, the principle set out in s 4(5) of the GA Act (see overarching principles above) states that a plenary guardian is not to be appointed if the appointment of a limited guardian would suffice to meet the needs of a person. As s 46 of the GA Act states (see below), a limited guardian's functions are such of the plenary guardian's s 45(2) functions as are vested in the limited guardian by the Tribunal.
Section 45 of the GA Act states:
(1)Subject to section 43(3), where a person is appointed as a plenary guardian, or 2 or more persons are appointed as joint plenary guardians, he or they have all of the functions in respect of the person of the represented person that are, under the Family Court Act 1997, vested in a person in whose favour has been made
(a)a parenting order which allocates parental responsibility for a child; and
(b)a parenting order which provides that a person is to share parental responsibility for a child,
as if the represented person were a child lacking in mature understanding, but a plenary guardian does not, and joint plenary guardians do not, have the right to chastise or punish a represented person.
(2)Without limiting subsection (1), a plenary guardian may do any of the following
(a)decide where the represented person is to live, whether permanently or temporarily;
(b)decide with whom the represented person is to live;
(c)decide whether the represented person should work and, if so, the nature or type of work, for whom he is to work and matters related thereto;
(d)subject to subsection (4A), make treatment decisions for the represented person;
(e)decide what education and training the represented person is to receive;
(f)decide with whom the represented person is to associate;
(g)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;
(h)as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person.
(3)A plenary guardian cannot do any of the following on behalf of the represented person
(a)vote in any election;
…
(c)consent, under section 17 of the Adoption Act 1994, to the adoption of a child or under section 69(1)(a)(ii) of that Act to the adoption of a represented person;
(da)consent, under section 21(2)(d) of the Surrogacy Act 2008, to the making of a parentage order under that Act; or
(d)under the Marriage Act 1961 of the Commonwealth, give consent in relation to the marriage of a minor, sign a notice of intended marriage or take part in the solemnization of a marriage.
(4A)A plenary guardian cannot consent to the sterilisation of the represented person, except in accordance with Division 3.
(4)A plenary guardian may not make a will or other testamentary disposition on behalf of a represented person but this subsection does not affect the operation of section 111A.
Section 46 of the GA Act sets out the authority of a limited guardian in the following terms:
Subject to section 43(3), where a person is appointed as a limited guardian, or 2 or more persons are appointed as joint limited guardians, he or they have, in respect of the person of the represented person, such of the functions mentioned in section 45 as the State Administrative Tribunal vests in him or them in the guardianship order.
Administration orders
To make an administration order, s 64 of the GA Act requires the Tribunal to be satisfied that the represented person is:
1)unable, due to a mental disability (defined in s 3(1)), to make reasonable judgments in respect of a part or all of their estate, and
2)in need of an administrator.
If satisfied of both of these elements, the Tribunal may declare that the represented person is in need of an administrator. Where such a declaration is made, the Tribunal must declare the matters in the first element, of which it is satisfied, and once it does so, can appoint an administrator.
However, even if satisfied of both elements, in accord with the principles set out in s 4(4) of the GA Act, the Tribunal may elect not to appoint a guardian if the needs of the person could, in the Tribunal's opinion, be made in another way that is less restrictive of the person's freedom of decision and action.
In s 65 of the GA Act there is specific provision for situations where it appears that:
•a person in respect of whom an administration application has been made, may be someone in respect of whom a declaration that he or she is in need of an administrator should be made (but it is unclear whether they are in fact unable, due to a mental disability, to make reasonable judgments in respect of a part or all of their estate); and
•it is necessary to take immediate steps to protect that person's estate.
In such a situation, s 65 of the GA Act empowers the Tribunal to exercise its powers to make immediate provision for the protection of the person's estate until such time as the question of whether the person qualifies as a person in need of an administrator can be resolved. This section allows the Tribunal to authorise a person to act with all the powers of an administrator, to protect the person's estate until such time as it is clear whether or not that person may be declared to be in need of an administrator.
Definition of 'mental disability'
'Mental disability' is defined in s 3(1) of the GA Act as including:
… an intellectual disability, a psychiatric condition, an acquired brain injury and dementia[.]
Section 64 of the GA Act sets out the criteria for the appointment of an administrator in the following terms:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40
(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,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.
(3)An appointment under subsection (1)
(a)may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;
(b)may, subject to section 51 of the Public Trustee Act 1941, include requirements as to the giving of security to the executive officer and the manner in which it is to be given.
Section 65 of the GA Act enables the Tribunal in certain circumstances to protect the estate of a person even if the criteria for the appointment of an administrator are not satisfied. Section 65 provides as follows:
Where it appears to the State Administrative Tribunal that
(a)a person may be a person in respect of whom a declaration should be made under subsection (1) of section 64; and
(b)it is necessary to make immediate provision for the protection of the person's estate,
then, pending the determination of the question whether the person is, in fact, a person in respect of whom a declaration should be made under that subsection, the Tribunal may exercise such of the powers conferred on it by this Act as may be necessary for enabling that provision to be made.
The inspection of documents
The inspection of documents lodged with or held by the Tribunal in relation to proceedings is governed by s 112 of the GA Act which provides that:
(1)A represented person, a person in respect of whom an application under this Act is made or a person representing any such person in any proceedings commenced under this Act is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to
(a)any document or material lodged with or held by the Tribunal for the purposes of any application in respect of that person;
(b)any accounts submitted under section 80 by the administrator of the estate of that person.
(2)Any other party to any proceedings commenced under this Act, or a person representing any such party, is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to any document or material lodged with or held by the Tribunal for the purpose of those proceedings, other than a document or material that is or contains a medical opinion not being an opinion concerning that party.
(3)Except as provided in this section, no person (not being a member of the State Administrative Tribunal or a member of staff of the Tribunal) shall, unless he is authorised to do so by order of the Tribunal, inspect or otherwise have access to a document or material lodged with or held by the Tribunal for the purposes of any application, or to any accounts submitted under section 80.
Penalty: $2 000 or imprisonment for 9 months.
(4)The State Administrative Tribunal may on the application of any person
(a)by order, authorise any person, whether conditionally or unconditionally, to inspect or otherwise have access to any document or material lodged with or held by the Tribunal for the purposes of any application; and
(b)make any other order contemplated by this section.
(5)An application under subsection (4) may be made ex parte or the State Administrative Tribunal may give directions as to the persons to whom notice of the application shall be given and who shall be entitled to be heard.
Background
An application seeking the appointment of an administrator and a guardian for the represented person was lodged by the represented person's nephew (TS) on 9 May 2013. The following day, EV, a niece of the represented person, also applied for the appointment of an administrator and a guardian for the represented person. The applications of both parties, it later emerged, had been lodged in the context of an entrenched family conflict.
In view of the earlier applications by TS, the Tribunal chose to treat EV's later applications as submissions to the earlier applications, and consequently dismissed EV's applications at the hearing on 6 June 2013.
At the conclusion of the 6 June 2013 hearing, the Tribunal revoked the enduring power of guardianship (EPG) dated 8 February 2013, by which the represented person appointed her niece, EV, as her enduring guardian and appointed the Public Advocate as the represented person's limited guardian, with functions to:
•make treatment decisions;
•decide where and with whom the represented person would live permanently or temporarily;
•determine what contact the represented person should have with others and the extent of that contact; and
•to decide the services to which the represented person should have access.
The Tribunal requested the guardian to arrange for the represented person's legal capacity to be assessed by a medical specialist. The order was to be reviewed by 6 December 2013.
With respect to the administration application, the evidence before the Tribunal was unclear whether the represented person could be said to be a person who by reason of a mental disability was incapable of making reasonable decisions regarding some or all of her estate (as required by s 64 of the GA Act for an administration order to be made). However, it appeared to the Tribunal that the represented person may be a person in respect of whom a declaration should be made in that she was in need of an administrator of her estate and that it was necessary to make immediate provision for the protection of her estate, pending the determination of the question whether the represented person was in fact a person in respect of whom such a declaration should be made. Consequently, pursuant to s 65 of the GA Act, the Tribunal authorised the Public Trustee to exercise all the functions of a plenary administrator and directed the Public Trustee to allow the represented person ongoing access to her pension and a bank account. The application for the appointment of an administrator was adjourned to 6 December 2013.
On 6 December 2013, the Tribunal finalised its hearing of the administration application. The Tribunal had been provided with conclusive medical evidence as to the represented person's mental disability in the form of dementia and subsequent incapacity to make reasonable decisions regarding her finances. In the course of the hearing, the Tribunal also found that the enduring power of attorney, by which the represented person appointed her niece, EV, on 8 February 2013, had been revoked by the represented person on 29 April 2013.
The Public Trustee's appointment on 6 June 2013 to protect the represented person's estate led to the disclosure of clear evidence of the need to protect her estate. A report dated 3 December 2013 by LC (solicitor for the Public Trustee), raised serious concerns about $150,000 of the represented person's money being transferred into an account held by EV and her husband. The apparent reluctance with which the money was reimbursed to the Public Trustee for the represented person was also brought to the Tribunal's attention. Perhaps, not surprisingly therefore, the Tribunal was advised at the hearing that EV no longer wished to be considered for appointment as the represented person's administrator and that she supported the appointment of the Public Trustee. The Public Trustee was appointed plenary administrator of the represented person's estate, the order to be reviewed by 6 December 2018.
On 6 December 2013, as required by s 84 of the GA Act, the Tribunal commenced its periodic review of the guardianship order made on 6 June 2013 whereby the Public Advocate had been appointed the represented person's guardian with functions to:
•make treatment decisions for the represented person;
•decide where the represented person is to live;
•decide with whom the represented person is to live;
•determine what contact, if any, the represented person should have with others and the extent of that contact; and
•determine the services to which the represented person should have access.
By the end of that hearing, the Tribunal noted a consensus among interested parties that the represented person was a person for whom a guardianship order could be made, and that, in view of the entrenched family conflict, there was no less restrictive alternative to the making of a guardianship order. Therefore, the Tribunal stated that the only issues in dispute related to who should be appointed as guardian for the represented person and what the scope of the guardian's functions should be. Subsequently, the hearing of the review was adjourned to 6 March 2014 and all interested parties were invited to lodge by evidence or submissions as to changes, if any, which should be made to the guardianship order by 13 February 2014.
The 6 March 2014 hearing was vacated by order on 12 February 2014 and relisted to 2 April 2014. The date by which submissions were to be lodged was also put back to 19 March 2014. The order of 12 February 2014 stated:
…
3.By 19 March 2014, any party to the proceedings may, but is not required to, lodge with the Tribunal:
(a)A statement in writing setting out what changes, if any, they contend should be made to the guardianship order; and
(b)Any documents or other material not already lodged with the Tribunal on which that party intends to rely at the hearing.
4.Each party is, unless the Tribunal orders otherwise, authorised to have a copy of any document or other material lodged by any other party pursuant to those orders, and the Executive Officer is to provide such copies on the request of a party.
5.The Executive Officer is to provide all parties with a copy of an application under s 112(4) of the Guardianship and Administration Act 1990 for access to documents or other material lodged with the Tribunal upon their request. Any application for such access by any party must be lodged by 26 March 2014.
6.A party shall not, without the Tribunal's prior approval, make a copy of or disclose to any person any part of the contents of a document or other material obtained by that party pursuant to these orders, or use the contents of any such documents for any purpose other [than] the hearing of the proceedings in the Tribunal, which shall include the obtaining of legal advice and legal representation at the hearing. Each party shall return to the Tribunal all copies of any documents to which access has been gained under these orders at the completion of the proceedings.
Issues
On 2 April 2014, the Tribunal resumed its part heard review of the Tribunal order dated 6 June 2013 appointing the Public Advocate as limited guardian of the represented person with functions to:
•make treatment decisions for the represented person;
•decide where the represented person is to live;
•decide with whom the represented person is to live;
•determine what contact, if any, the represented person should have with others and the extent of that contact; and
•determine the services to which the represented person should have access.
The Tribunal is required to review its guardianship and administration orders periodically, specifying a period not exceeding five years within which orders are to be reviewed (s 84 of the GA Act). In this case, the order of 6 June 2013 specified 6 December 2013 as the date by which it was to be reviewed. The hearing of the review commenced on 6 December 2013 and was completed on 2 April 2014.
In response to the Tribunal's invitation to all interested parties to lodge written submissions as to what changes, if any, should be made to the existing guardianship order, the Tribunal received over 40 such submissions and responses to submissions.
In the course of the hearing of this review, JM (EV's lawyer), submitted that tendered sworn statements should be accorded greater weight than unsworn statements. While accepting that in some settings and circumstances sworn statements are indeed held to carry more evidentiary weight than unsworn statements, I do not agree that it would be appropriate to do so in these proceedings. This Tribunal prescribes how evidence is to be tendered. In this matter, I did not ask for sworn statements and consequently do not propose to disadvantage parties who submitted evidence in accordance with my directions and the Tribunal's practice in guardianship and administration matters.
In addition to the written submissions, in this final hearing on 2 April 2014, the Tribunal also heard evidence given by a number of interested parties including TS, SR, EV, EV's legal representative JM, and LR, the represented person's delegated guardian.
Powers of the Tribunal on review
When reviewing an order, the Tribunal is to be guided by s 90 of the GA Act and by what it considers necessary in the best interests of the represented person to:
•confirm the order;
•amend the order;
•revoke the order; or
•revoke the order replacing it with another order.
When reviewing a guardianship order such as that made for the represented person, the Tribunal is required to take into account the same considerations it would if appointing a guardian for the first time (s 43 of the GA Act). The provisions in s 43 of the GA Act governing the making of a guardianship order are 'subject to section 4' which sets out the GA Act's overarching principles (s 43(1) of the GA Act).
In reviewing a guardianship order (and in all proceedings under the GA Act), the Tribunal is required to observe certain principles as set out in s 4 of the GA Act:
1)The best interests of the person concerned in this case, the represented person must be the Tribunal's primary concern.
2)Everyone is to be presumed capable of looking after their own health and safety, making reasonable judgments in personal and financial matters, and managing their own affairs, until contrary evidence persuades the Tribunal that a person is incapable.
3)Guardianship or administration orders are not to be made if the needs of the person for whom an order could be made could, in the view of the Tribunal, be met in another way that is 'less restrictive of the person's freedom of decision and action'.
4)A plenary guardian is not to be appointed if a limited guardian would be sufficient to meet the needs of the person for whom the order is being made.
5)An order appointing a limited guardian or administrator for a person is required to be couched in terms that impose 'the least restrictions possible in the circumstances on the person's freedom of decision and action'.
6)To the extent that it is possible, the Tribunal is required to ascertain the views and wishes of the person concerned as expressed at the time, or determined from the person's previous actions.
With those principles in mind, I turn to the key issues of the review.
Whether the represented person is a person for whom a guardian may be appointed
First, the Tribunal must be satisfied that the represented person is someone for whom a guardian could be appointed. This requires the Tribunal to be satisfied that she has attained the age of 18 and that she is:
•incapable of looking after her own health and safety;
•unable to make reasonable judgments in respect of matters relating to her person; or
•in need of oversight, care, or control in the interests of her own health and safety for the protection of others.
The medical evidence
The medical evidence and the evidence of other professionals is largely consistent.
In his report, DC, a general practitioner who has been the represented person's regular medical attendant for five years, indicates that he is not sure whether she is capable of making reasonable decisions regarding her personal health, but he believes she is probably capable of making reasonable decisions regarding her financial affairs and capable of making reasonable decisions regarding her living situation.
In the report of 14 May 2013, CJS, a senior registrar in geriatrics, identified the represented person's diagnosis as Alzheimer's dementia and found her to be incapable of reasonable decisions regarding her personal health, living situation and her financial affairs. CJS observed that the represented person lacked insight into her own health, safety and capabilities, and drew the Tribunal's attention to her Rudas Memory test score of 18/30 on 14 May 2013.
SH, a member of the Royal Perth Hospital geriatrics team, also provided a report, dated 5 October 2013, stating that a psychiatric assessment led to the represented person being diagnosed with fairly advanced dementia. He noted the represented person's poor insight and poor memory and her Mini Mental State Examination (MMSE) scores of 12/30 without an interpreter and 14/30 with an interpreter, scores which SH noted suggested that the represented person had fairly advanced dementia, making it unlikely for it to be safe for her to live on her own even if in receipt of community supports. SH suggested that, given her lack of insight and desire to live at home, he suspected that she will need residential placement in a secure unit.
In their report of 17 June 2013, KS and LF diagnosed the represented person's impairment as quite advanced dementia of likely Alzheimer's type. They found that as a consequence of this impairment, she lacks the capacity to make decisions for herself and that the best option for her would be a low level dementia specific care package.
Referring to psychiatrist L's report of 12 March 2014, KC, a general practitioner, listed the represented person's diagnosis as dementia and deemed her incapable of making reasonable decisions regarding her personal health, her living situation or financial affairs.
These medical assessments of incapacity appeared to be further supported by the represented person's aged care assessment in December 2012, resulting in approval for low level care, and in July 2013 when she was approved for low level residential and respite care, approved for transitional care, and recommended for secure care.
Further, a 28 March 2014 report by residential care manager, KS, stressed that the represented person is unable to manage any aspect of her affairs.
Reports notably at odds with the above assessments were those by occupational therapist DG, dated 24 February 2014, and the occupational therapy report by LJ, dated 29 March 2014.
DG's assessment of the represented person's functional and cognitive ability was based on her observations and on a MMSE score of 19/30. She states that although the represented person was only partially oriented to place and time, and needed structure, supervision, prompting and reminding, she was nevertheless capable of routine tasks which she would be able to perform if placed into a 'safe secure homely environment [where] the represented person could still make her own bed'. DG qualifies her statements by noting that alternate environments would need to be thoroughly assessed by a social worker and occupational therapist in the community before being able to be called safe, 'homely' and 'dementia friendly'.
DG's report, while appearing to question the assessment of the represented person as incapable, in fact reinforces the represented person's severe limitations and merely suggests that she may be happier if given a suitable alternative environment. This view does not appear to be at odds with that held by the current guardian who reports not being able to find such an environment. I note that DG's report was prepared at the request of EV, or her legal representatives, without consulting the Public Advocate, the represented person's guardian empowered to make treatment decisions for the represented person. The guardian has expressed concern to the Tribunal at not being consulted, and notes that it is not clear to her what information was provided to DG and the context in which the report was requested at the time of the assessment. Those who have acted in this manner to secure DG's report have demonstrated their disregard for the authority bestowed upon the guardian and lack of understanding of the Tribunal's nonadversarial approach to the determination of the best interests of a represented person.
On the other hand, LJ's report of 29 March 2014, is based on documents and information selected and provided to her by EV's legal representatives, apparently acting in breach of conditions under which such documents were obtained from the Tribunal. These conditions should be familiar to all interested parties who have sought access to documents, and even to those few who have not sought such access, as they were most recently spelt out in the Tribunal's order dated 12 February 2014 which was mailed to all interested parties.
The conditions expressly set out in orders granting access to documents sought in applications pursuant to s 112(4) of the GA Act relating to this matter were as follows:
1.Without the prior written approval of the Tribunal, the documents and material to which access is granted may be used only for the purposes of:
(a)proceedings in the Tribunal under the Guardianship and Administration Act 1990 concerning [the represented person].
2.For the purposes of condition 1, [the person seeking access] may disclose the contents of the documents and material to [a specific person to whom disclosure was applied for and to] any legal practitioner for the purpose of obtaining legal advice or legal representation relating to the purpose permitted by condition 1, but the applicant shall not otherwise make copies of any part of the documents and material.
It may be sobering for those not inclined to feel bound by the restrictions imposed on the dissemination of documents obtained under s 112(4) of the GA Act to observe the penalties set out in s 112(3) for such breaches.
The breaches of the GA Act which led up to the preparation of LJ's report constitute only one concern the Tribunal has with the submission of this report by EV's legal representatives. The Tribunal had clearly set down a date by which all documents and submissions to be relied on were to be received by the Tribunal. That date was 19 March 2014. LJ's report is dated 29 March 2014. A copy was sent to the Tribunal on 1 April 2014 and the Tribunal was advised that a copy had been served on one of the interested parties. The reason for imposing a cutoff date for the submission of material to be relied on is so that the Tribunal can accord natural justice to all interested parties by allowing them a reasonable opportunity to read such new material and to have an opportunity to respond to it without further drawing out the proceedings.
However, as the represented person's best interests are my overriding consideration in these proceedings, I have considered LJ's occupational therapy report. The report offers a professional opinion on the suitability of EV's family home as a residence for the represented person. However, the submission of this report to the Tribunal appears to be misdirected, as it is the guardian and not the Tribunal which decides where the represented person lives. Whether this report highlights a more appropriate residence for the represented person will be for the guardian to decide. Otherwise, LJ's report does not introduce new information related to issues under consideration in this review.
Conclusion
Consequently, on balance, I prefer the evidence of the medical assessors, in part due in some cases to their specialist qualifications, but also to the consistency of their views with cognitive assessments and personal observations in the vast majority of submissions.
Conscious of the overriding principle set out in s 4(3) of the GA Act, that the represented person is to be presumed to be capable of looking after her own health and safety, and of making reasonable judgments in respect of matters relating to her person, until the contrary has been proven to the satisfaction of the Tribunal, I find that the evidence as to the represented person's incapacity is sufficiently compelling to rebut this presumption.
I am satisfied on the evidence before me that the represented person is incapable of looking after her own health and safety, and is unable to make reasonable judgments in respect of matters relating to her person and, furthermore, that she is in need of oversight, care or control in the interest of her health and safety.
Whether the represented person is in need of a guardian
Secondly, the Tribunal must be satisfied that the represented person is in need of guardian. In deciding whether she is in need of a guardian, I must consider what her needs are and whether the needs can be met by means less restrictive of her freedom of decision and action than a formal appointment of a guardian.
There is no difference of opinion among professional witnesses and parties to this proceeding as to the represented person's need for a guardian. The Tribunal is similarly satisfied that the nature of the represented person's needs is such as to make her in need of a guardian.
I am also satisfied that no less restrictive means are available (s 4(4) of the GA Act). Conflict within the represented person's extended family makes informal guardianship unworkable and requires the formal appointment of a guardian.
As required by s 43(1) and s 43(2) of the GA Act, where the Tribunal is satisfied of the represented person's incapacity and of her need for a guardian, the Tribunal is to declare by order that the represented person is in need of a guardian and the grounds for this finding. In this case, the Tribunal declares that the represented person is in need of a guardian and that it is satisfied that the represented person is:
•incapable of looking after her own health and safety;
•unable to make reasonable judgments in respect of matters relating to her person; and
•in need of oversight, care or control in the interests of her own health and safety.
What is the scope of the represented person's needs?
There is a difference of opinion among interested parties as to the represented person's scope of needs requiring the appointment of a guardian. Thus, EV, who seeks to be appointed as guardian, asks the Tribunal to make an order that the represented person live in her care, and that as guardian she have authority to make treatment decisions, determine what services the represented person has access to, and suggests that issues of access be dealt with informally. The Public Advocate (as the current guardian), and most other relatives are opposed to EV's appointment as guardian and support contact decisions being a function of the guardian.
Conclusion
I am satisfied that the represented person is in need of a guardian to make decisions about medical treatment, accommodation, contact with others and access to services.
The need for a guardian to make decisions about medical treatment is largely due to family disagreement over her need for nursing home care.
The need for a guardian to make accommodation decisions as to where the represented person lives and with whom she lives also largely flows from family disagreement over whether she should live in a nursing home.
The need for a guardian to make decisions about what contact the represented person should have with others, in view of the nature of the family conflict, is a need for a guardian to ensure that the represented person has access to all relatives and friends.
The need for a guardian to determine what services the represented person should have access to flows from difference of opinion as to whether required services are available in the nursing home.
In accord with the principles set out in s 4(5) of the GA Act, I am satisfied that it will be sufficient to meet the represented person's needs to appoint a limited guardian with the functions of the current order:
…
(a)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person;
(b)To decide where the represented person is to live, whether permanently or temporarily;
(c)To decide with whom the represented person is to live;
(d)To determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)To determine the services to which the represented person should have access.
…
I am also satisfied, as required by s 4(6) of the GA Act, that such an order will impose the least restrictions possible in the circumstances on her freedom of decision and action.
Who is to be appointed guardian
The person appointed guardian must be an individual who has consented to act and who the Tribunal is satisfied will:
•act in the best interests of the represented person;
•does not have any interests in conflict with the represented person's interests; and
•is otherwise suitable to act as the represented person's guardian.
Who is willing to act as guardian
The Public Advocate is the current guardian and recommends that the Public Advocate be reappointed as the represented person's guardian. However, s 44(5) of the GA Act stipulates that the Tribunal may not appoint (or reappoint) the Public Advocate as guardian unless there is no other person suitable and willing to act.
The represented person's nephew, TS, originally an applicant for appointment as guardian, withdrew his nomination for appointment, accepting that in view of the seemingly irreconcilable family feud, the appointment of any family member is not viable.
The only other person who has indicated a willingness to take on the role of guardian is EV. Consequently, either EV or the Public Advocate is to be appointed the represented person's guardian. However, according to the GA Act, this choice is not to be resolved by determining which of the two would be the better guardian but by determining whether EV is suitable to be the guardian, as only if she is not suitable can the Public Advocate be appointed.
Whether EV is suitable to act as guardian
Issue 1:Whether EV would act in the represented person's best interests
The first consideration is determining whether the represented person's niece, EV, is suitable, is to be determined by whether, in the opinion of the Tribunal, she will act in the best interests of her aunt, the represented person. Taking into account the implications of the represented person's advanced dementia, acting in her best interests would involve the following of the roles spelt out in the GA Act.
i)An advocate for the represented person (s 51(2)(a) of the GA Act)
First, as guardian, EV would be expected to be an advocate for the represented person. EV has submitted evidence attesting to her effective advocacy and, through her role in these proceedings, I am left in little doubt as to her advocacy skills. However, I must also consider evidence suggesting that at times, EV, while appearing to advocate for others may actually be advocating for her herself.
ii)Protect the represented person from neglect, abuse or exploitation (s 51(2)(d) of the GA Act)
Secondly, as guardian, EV would be expected to protect the represented person from neglect, abuse or exploitation. EV has tendered significant evidence supporting her capacity as a carer. However, the Tribunal's focus is on appointing a decisionmaker and not a carer, and the Tribunal also had to consider the negative implications of EV's actions in making and submitting a video recording which appeared to exploit the represented person's impairment in order to elicit statements supporting EV's submissions.
iii)Act in consultation with the represented person taking her wishes into account (s 51(2)(e) of the GA Act)
Thirdly, as guardian, EV would also be expected to act in consultation with the represented person and take her wishes into account. In this respect, the Tribunal has conflicting evidence as to whether EV would be likely to act in consultation with the represented person without imposing her own views in pursuit of her own vested interests.
iv)Act in a manner least restrictive of the represented person's rights but consistent with her protection (s 51(2)(f) of the GA Act)
Fourthly, EV would be expected to act in a manner least restrictive of the represented person's rights but consistent with her protection. Regarding accommodation choices, EV favours least restriction of the represented person's rights, and especially the represented person's expressed wish not to be placed in a nursing home. However, in so doing, EV seeks to act in a manner deemed by formal assessors to offer the represented person insufficient protection. Regarding regulation of the represented person's contact with others, by denying the need for impartial regulation of contact, EV appears to be insufficiently concerned for the represented person's right to have access to all members of the family who would wish to see her.
v)Act so as to maintain the represented person's supportive relationships (s 51(2)(g) of the GA Act)
Fifthly, EV would be expected to act so as to maintain the represented person's supportive relationships. EV appears to downplay the importance of this aspect of acting in the represented person's interests by dismissing the need for neutral regulation of contact and by refusing to accept that her appointment, or the appointment of any other family member involved in the family feud, would prevent the represented person from being able to maintain her supportive relationships.
vi)Act so as to maintain the represented person's familiar, cultural, linguistic and religious environment (s 51(2)(h) of the GA Act)
Finally, as guardian, EV would be expected to maintain the represented person's familiar cultural, linguistic and religious environment. Central to EV's submissions has been the argument that her nursing home placement prevents her from maintaining such links and traditions, and that only the appointment of a trusted family member such as herself would ensure their maintenance. Evidence tendered as to steps taken to ensure the maintenance of cultural, linguistic and religious traditions and practices establishes, to the Tribunal's satisfaction, that such links can and are being maintained in the context of current accommodation arrangements.
Issue 2:Whether EV has any interests in conflict with those of the represented person
The second consideration in determining whether EV is suitable to be appointed as the represented person's guardian is whether, in the opinion of the Tribunal, EV has any interests in conflict with those of the represented person. EV withdrew her nomination for appointment as the represented person's administrator following an investigation by the Office of the Public Trustee's revelation of a large sum of the represented person's money being transferred for the benefit of EV and her husband. This would appear to suggest that EV has not always shown herself willing or capable of avoiding conflicts of interest with those in her care. I also see little, if any, prospect that EV would be able to ensure that her interests in the family feud would not be in conflict with the represented person's interests.
Issue 3:Whether EV is otherwise suitable to act as the represented person's guardian (s 44(1)(c) of the GA Act)
The third consideration of suitability is whether, in the opinion of the Tribunal, EV is otherwise suitable to act as the represented person's guardian. This, according to s 44(2) of the GA Act, is to be determined by taking into account the following factors:
i)Whether appointment would serve to preserve the represented person's existing relationships (s 44(2)(a) of the GA Act)
This consideration requires me to consider whether EV's appointment would serve to preserve the represented person's existing relationships. In view of the ongoing family feud, it is extremely unlikely that the appointment of EV, or of any other family member, would serve this purpose.
ii)Whether compatible with the represented person and with the administrator (s 44(2)(b) of the GA Act)
Another element of this 'otherwise suitable to act' consideration is whether EV's appointment would be compatible with the represented person and with the administrator. I have no reason to question that such an appointment would be compatible with the represented person. However, the Public Trustee's serious concerns regarding EV's transfer of the represented person's money, the apparent reluctance with which the money was reimbursed, and the distress this caused the represented person is likely to have undermined the trust the administrator may have had in EV.
iii)Whether in accord with represented person's wishes (s 44(2)(c) of the GA Act)
A further element concerns the represented person's wishes. Though contested in some submissions opposing the appointment of EV, where references are made to the represented person's longstanding wish not to be looked after at home, I find that the preponderance of evidence suggests that the represented person has expressed the wish to be looked after by EV. With respect to other wishes, the evidence overwhelmingly suggests, that due to her deteriorating mental state, the represented person can be easily swayed to hold views and express wishes which do little more than reflect the views of those with whom she is spending time. EV has not shown herself able to rise above the family in order to divorce her own views and wishes from those of the represented person.
iv)Whether EV would be able to perform the functions vested (s 44(2)(d) of the GA Act)
The final element is whether EV would be able to perform the functions vested. While clearly possessing the ability to perform the functions as attested to in the many impressive character references and statements lodged in support of her, the Tribunal is of the view that EV's involvement in the family feud, and some already mentioned concerns raised by her previous actions, would prevent her from being able to perform the functions vested in the guardian for the represented person.
Conclusion
The above consideration of whether EV is a suitable person to act as the represented person's guardian leads the Tribunal to conclude that largely due to the family conflict she is not a suitable person to be appointed as the represented person's guardian.
Consequently, on being satisfied that there is no other person suitable and willing to act, the Tribunal confirms the order and reappoints the Public Advocate as limited guardian for the represented person with the same functions:
…
(a)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person;
(b)To decide where the represented person is to live, whether permanently or temporarily;
(c)To decide with whom the represented person is to live;
(d)To determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)To determine the services to which the represented person should have access.
…
The term of the order
The Tribunal may make an order for a period not exceeding five years (s 84(a) of the GA Act). In this case, the order is to be reviewed by 6 December 2018, coinciding with the scheduled review of the administration order.
Orders
On review under s 84 of the Guardianship and Administration Act 1990 of an order dated 6 June 2013 concerning MG, heard by Senior Sessional Member D Stepniak on 2 April 2014
The Tribunal declares that MG:
(a)is incapable of looking after her own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to her person;
(c)is in need of oversight, care or control in the interests of her own health and safety; and
(d)is in need of a guardian,
and the Tribunal orders that:
1.The order is confirmed as follows:
The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person;
(b)To decide where the represented person is to live, whether permanently or temporarily;
(c)To decide with whom the represented person is to live;
(d)To determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)To determine the services to which the represented person should have access.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee in the Office of the Public Advocate.
3.This order is to be reviewed by 6 December 2018.
I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR D STEPNIAK, SENIOR SESSIONAL MEMBER
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