MK
[2014] WASAT 119
•12 SEPTEMBER 2014
MK [2014] WASAT 119
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 119 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2253/2014 | 5 AUGUST 2014 | |
| Coram: | MS F CHILD (MEMBER) | 12/09/14 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Public Trustee reappointed as administrator Appointment of Public Advocate revoked Daughter appointed limited guardian | ||
| B | |||
| PDF Version |
| Parties: | MK DG |
Catchwords: | Guardianship and administration Review of orders appointing Public Advocate as guardian and Public Trustee as administrator Represented person with established diagnosis of dementia Ongoing family conflict Confirmation of appointment of Public Trustee as administrator of estate Revocation of appointment of Public Advocate and appointment of daughter as limited guardian to make medical treatment decisions Less restrictive order Suitability for appointment as guardian |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 44, s 53 State Administrative Tribunal Act 2004 (WA), s 39(1)(e) |
Case References: | MK [2013] WASAT 146 |
Summary | On review of orders made a year ago for MK, an elderly woman with dementia, the Tribunal confirmed the appointment of the Public Trustee as the plenary administrator of MK's estate.,The Tribunal acknowledged the ongoing conflict between the children of MK but determined that this did not make MM, one of the daughters of MK, unsuitable for appointment as limited guardian and that the conflict did not impact on MK. ,The Tribunal determined that MM's appointment was in the best interests of MK as MM was familiar with MK's medical history, visited MK regularly at the residential aged care facility, had regular and frequent contact with staff at the facility, and reportedly could work effectively with healthcare professionals on MK's behalf. MM undertook, if she was appointed guardian, to communicate with her sister about their mother's care.,In being satisfied that MM is suitable for appointment, pursuant to s 44(5) of the Guardian and Administration Act 1990 (WA), the appointment of the Public Advocate could not be made. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MK [2014] WASAT 119 MEMBER : MS F CHILD (MEMBER) HEARD : 5 AUGUST 2014 DELIVERED : 12 SEPTEMBER 2014 FILE NO/S : GAA 2253 of 2014
- GAA 2254 of 2014
- Represented Person
AND
DG
Interested Party
Catchwords:
Guardianship and administration - Review of orders appointing Public Advocate as guardian and Public Trustee as administrator - Represented person with established diagnosis of dementia - Ongoing family conflict - Confirmation of appointment of Public Trustee as administrator of estate - Revocation of appointment of Public Advocate and appointment of daughter as limited guardian to make medical treatment decisions - Less restrictive order - Suitability for appointment as guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 44, s 53
State Administrative Tribunal Act 2004 (WA), s 39(1)(e)
Result:
Public Trustee reappointed as administrator
Appointment of Public Advocate revoked
Daughter appointed limited guardian
Summary of Tribunal's decision:
On review of orders made a year ago for MK, an elderly woman with dementia, the Tribunal confirmed the appointment of the Public Trustee as the plenary administrator of MK's estate.
The Tribunal acknowledged the ongoing conflict between the children of MK but determined that this did not make MM, one of the daughters of MK, unsuitable for appointment as limited guardian and that the conflict did not impact on MK.
The Tribunal determined that MM's appointment was in the best interests of MK as MM was familiar with MK's medical history, visited MK regularly at the residential aged care facility, had regular and frequent contact with staff at the facility, and reportedly could work effectively with healthcare professionals on MK's behalf. MM undertook, if she was appointed guardian, to communicate with her sister about their mother's care.
In being satisfied that MM is suitable for appointment, pursuant to s 44(5) of the Guardian and Administration Act 1990 (WA), the appointment of the Public Advocate could not be made.
Category: B
Representation:
Counsel:
Represented Person : N/A
Interested Party : Ms K Davis
Solicitors:
Represented Person : N/A
Interested Party : Equitas Lawyers
Case(s) referred to in decision(s):
MK [2013] WASAT 146
Introduction
1 These written reasons follow a hearing of a periodic review of orders made in July 2013, which appointed the Public Advocate as guardian and the Public Trustee as the plenary administrator of the estate of MK, an elderly woman with a diagnosis of dementia (represented person).
2 The review was heard on 5 August 2014. The hearing was attended by the delegated guardian of the Public Advocate (Public Advocate), a representative of the Public Trustee (Public Trustee), the daughters of the represented person, DG and MM, and her son, AK, AK's spouse, RA, the represented person's grandson, BG, and DM, a friend of AK and DG. DG was legally represented. The represented person did not attend the hearing and the medical report before the Tribunal states that she could make no contribution to the hearing.
3 The review of the administration order was concluded on the day of the hearing. The Public Trustee was reappointed the plenary administrator of the estate with review of the order in five years.
4 The review of the guardianship order was adjourned to allow for written submissions to be made as to who should be appointed guardian. These reasons follow the determination of the review of the guardianship order.
Background
5 The background of the appointment of the Public Advocate as guardian and the Public Trustee as the administrator of the estate of the represented person is set out in the reasons of the Tribunal published as MK [2013] WASAT 146 (MK 2013). It is not necessary, for the purpose of these reasons, to recount that background. Suffice to say that the appointments were made in the context of conflict between the daughter of the represented person, MM, who was the original applicant, and the represented person's spouse and her other two children, daughter DG and son AK. The conflict between MM and the spouse arose, it seems, because of the applications made by MM to the Tribunal. The conflict between MM and her siblings appeared to be of longstanding duration.
6 Sadly, the spouse of the represented person died in November 2013. Following his death, the represented person's care needs were said to require that she move from her own home to residential aged care. The Public Advocate, as appointed guardian of the represented person, consented to her admission to residential aged care in December 2013.
Review of the orders
7 On review of the orders, as with a new application, the Tribunal must consider whether the represented person is a person for whom orders may be made, whether she in need of orders, and if so, who should be appointed as guardian and administrator.
8 The medical report produced for the review by Dr FB dated 14 June 2014 confirms the earlier diagnosis of 'Dementia (Alzheimer's disease)'. The represented person's dementia is described as 'advanced'.
9 None of the parties attending the hearing took issue with the view of Dr FB that the represented person is not able to make decisions about her personal healthcare or her financial affairs. All the parties accept, and the Tribunal finds, that the represented person is unable to look after her own health and safety, make reasonable judgments about her person, and is in need of oversight and care in the interests of her own health and safety, and is unable, by reason of her dementia, to make reasonable judgments about her estate. The Tribunal finds that the represented person continues to need a guardian and an administrator of her estate.
Administration
10 Given the history and the obvious ongoing conflict in the family, the reappointment of the Public Trustee as the plenary administrator of the estate was supported by the Public Advocate and accepted by all the children of the represented person. This was despite concern expressed by the children in the hearing that, in their view, there had been delay on the part of the Public Trustee in dealing with the house property of the represented person which she had received on survivorship on the death of her late husband, and criticism by AK regarding the manner in which he says he was asked to vacate the property.
11 It is apparent that there had been communication difficulties between the children of the represented person and the Public Trustee. The lack of communication and cooperation between the children appears to have contributed to the difficulties and to any delay. At the hearing, the children were encouraged to write to the Public Trustee with their concerns.
12 The order reappointing the Public Trustee was made on the day of the hearing and was set for review by 5 August 2019.
Guardianship
13 As noted, the Public Advocate was appointed in July 2013 as the limited guardian of the represented person with functions to decide where and with whom she was to live, to make decisions about the treatment and services to which she should have access, and to determine the contact she should have with others. The contact function was included in the original orders because of the level of conflict between the children of the represented person (MK 2013at [25]).
14 On review, the Public Advocate submits that only the function to make treatment decisions for the represented person is required because the represented person has been admitted to a residential aged care facility and the other functions in the original order no longer need to be exercised by a guardian. The Public Advocate submits that the represented person is settled in the facility and the children appear to support the placement. No objection to this submission was made in the hearing.
15 The Public Advocate reports that the guardian had not been called on to manage contact between the parties, as both MM and AK visit the represented person regularly at the aged care facility without any difficulty. The facility had not reported any problems associated with their visits. In the report of AB, the facility manager, both AK and MM are noted as 'very caring to Mum when [they] visit but visit separately'. In the same report, the represented person is reported to be 'a very affable, friendly lady'. The family is described as 'caring, pleasant and polite when on site'. DG is not referred to in the report.
16 In the hearing, the Public Advocate reports that that DG has not visited the represented person at the facility. DG confirmed this in the hearing, saying that she had visited her father prior to his death and told him that 'if Mum goes into a home I am not going there'. When asked why this was, she said 'Mum had a beautiful house there that Dad built for them both', which the Tribunal takes to mean that she objects to the placement of the represented person in residential aged care. Counsel for DG made the comment that 'it hurts [DG] too much to go there'.
17 The Public Advocate submits that MM could fulfil the role of guardian of the represented person to make treatment decisions on her behalf. The Public Advocate argues that while there is ongoing conflict between the children of the represented person, MM is suitable for the role as she is in contact with the residential aged care facility where the represented person lives, visits the represented person regularly there and has regular contact with the staff caring for the represented person. MM also attended a hospital admission with the represented person following a recent heart attack, and is reported to be able to communicate both with the Public Advocate's office and with hospital staff.
18 The Public Advocate submits that MM's appointment as guardian to make treatment decisions is a less restrictive and a more suitable option for the represented person than the reappointment of the Public Advocate with this function and is consistent with the principle of less restriction provided for in the principles set out in s 4 of the Guardianship and Administration Act 1990 (WA) (GA Act).
19 MM asserts that she should be appointed as guardian because she has a good rapport with the nursing home staff, has a background in nursing and works in the healthcare system, was able to communicate with the doctors at Royal Perth Hospital at her mother's recent admission and, given the opportunity to be the appointed guardian, she would undertake to communicate with her sister regarding health concerns. (Her brother indicates he would refuse any contact with MM and she does not have his contact details.) MM denies that her sister, DG, has made efforts to make contact with her, despite the assertions of DG that this is the case.
20 Although there was no objection to the submissions of the Public Advocate regarding the need for the appointment of a guardian or the functions said to be required, there was opposition by DG and AK to the proposal that MM be appointed guardian of the represented person to make treatment decisions on her behalf.
21 At the hearing, DG submitted that the Public Advocate should be reappointed as guardian. AK appeared to support this view.
22 The Tribunal adjourned the review to receive written submissions from counsel for DG within seven days of the hearing addressing the question of who should be appointed guardian. The decision was thereafter reserved.
23 The Tribunal did not receive written submissions by 12 August 2014 from counsel for DG as had been agreed at the adjournment, or any explanation as to why submissions were not made.
24 A submission jointly prepared by DG and DM (a friend and neighbour) as agent for AK, was received by the Tribunal by email on 12 August 2014. As the Tribunal had not had any notice that her solicitors ceased to act for DG, the Tribunal sought to clarify whether further submissions would be made for DG. Following enquiries made by Tribunal staff and a request for confirmation of the position, an email was received on 20 August 2014 from DG's solicitors confirming that they acted for her but that they 'had been instructed not to prepare and file submissions in respect of the guardianship order concerning [the represented person]'.
25 In respect of DM's role, it is noted that DM was granted leave pursuant to s 39(1)(e) of the State Administrative Tribunal Act 2004 (WA) to represent AK in the proceedings before the Tribunal in July 2013 that is, to act as agent for AK - because he has an acquired brain injury. The authority was for the purposes of that proceeding.
26 Leave was not sought or granted in respect of the review proceeding for an agent to act on behalf of AK.
27 The submission is said to have been authorised by and prepared for AK; however, in the body of the document, it is said that AK's position is not advocated because it is said that his 'perspective' on the history of the matter 'is unhelpful to future amicable outcomes' and his perspective is not shared by DG 'or his agent'. Despite AK's position being reported as 'unreasonable', this statement indicates that DM does not fully appreciate the role of an agent representing AK.
28 At the hearing, both AK and DG opposed the appointment of MM. So that the Tribunal could consider their opposition to the proposal made by the Public Advocate, at the adjournment the Tribunal specifically sought submissions on the question of the appointment of a guardian which addressed the principles in s 4 and the criteria in s 44 of the GA Act regarding the suitability of a guardian for appointment. These provisions are set out below:
4. Principles stated
(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.
44. Who may be appointed guardian
(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.
29 Unfortunately, the written submission jointly made on behalf of AK and by DG does not address the criteria which the Tribunal must consider when determining the appointment of a guardian.
30 The submission deals in some detail with the financial affairs of the represented person, specifically, the house property and the personal property of AK and others said to be stored at the property. As noted above, the appointment of the Public Trustee was confirmed at the hearing on 5 August 2014 and so the review of the administration order was concluded at that time. As noted in the hearing, any issues regarding the management of the estate of the represented person should be addressed to the Public Trustee.
The submission filed gives background to the matter from DG's and AK's perspectives. Many of the assertions made in the submission are in conflict with evidence given by others in the original proceeding. It is not necessary to resolve the conflicts as much of the material is of historical interest only because the circumstances of the represented person have changed significantly, in that she has been admitted to residential care since December 2013.
31 The submission asserts that DG believes MM was 'misguided' in making the original applications, it is said, without consultation with the family. It is said that MM 'contended that [the represented person] was not properly fed prior to going into nursing home care, that she has a hip replacement and that she is incontinent'. It is said that 'None of these propositions published by [MM] is true'. It is also said that MM 'lacks hands on experience' caring for the represented person and had made 'mistaken or incorrect statements about [the represented person's] health issues'. It is said:
This may be indicative that she is or may not be positioned to appreciate and make health and welfare decisions of the represented person alone.
32 It is said that DG has 'greater direct personal experience of care' of the represented person.
33 It is acknowledged elsewhere in the document that the 'health related concerns' that MM had expressed about the represented person were 'warranted' and that DG and AK may have 'misinterpreted the factual reality'.
34 The submission does acknowledge the differences and conflict experienced by the siblings in the past, and proposes that these matters be resolved.
35 The joint appointment of DG and MM as guardians of the represented person is proposed and, if that order is not made, it is proposed that the Public Advocate is reappointed as the sole guardian.
36 AK is said not to support any appointment which would involve MM because of his antagonism towards her, but later it is said that the proposal for the joint appointment of MM and DG has his 'tacit' approval.
37 The submission raises the issue of the accommodation decision made by the Public Advocate and states:
[MM] contends that [the represented person] is 'happy and settled' in care at the [name deleted] facility. This is not what [the represented person] reports to either [DG] or [AK] during their visits to [the represented person], the most recent being by [DG] on Sunday 10 August. This visit was also attended by her friend and neighbour, who independently confirms that [the represented person] complains of loneliness, boredom, [and] missing her home where she was cared for by both [her spouse] and [DG].
- It goes on to say:
[DG] is keen to pursue any strategy which could improve the living circumstances for [the represented person] and address her satisfaction of her current living arrangements.
It is assumed the 'friend and neighbour' who provides 'independent' confirmation of the reported 'complaints' of the represented person is the author of the submission, DM.
The reference to 'their visits' by AK and DG, 'the most recent being by [DG] on Sunday 10 August', is the Tribunal finds, intended to misrepresent the position and suggest, contrary to her own evidence given in the hearing of 5 August 2014, that DG has previously visited her mother at the facility. Given that evidence, it seems likely that the visit of 10 August 2014 was the first visit by DG to the facility since the represented person's admission there. It is accepted that AK has been a regular visitor.
The comments made regarding the represented person's placement at the facility appear to be at odds with the submission of the Public Advocate, made in the written report and referred to in the hearing, that the adult children of the represented person 'accept that the represented person is in this facility and there is no contention regarding her accommodation and care'. This assertion was not directly challenged at the hearing although the inference drawn from DG's reason for not visiting her mother is that she opposed the placement. The direct reference in the submission filed later suggests that the need for a guardian to have the function to determine where the represented person should live may remain an issue. This question will be considered later in these reasons.
Proposed appointments
38 Following the written submission being received, there are three proposals before the Tribunal in respect of the appointment of a guardian for the represented person:
1) the joint appointment of DG and MM;
2) the reappointment of the Public Advocate; and
3) the appointment of MM.
39 As set out above, s 44 of the GA Act requires that in determining suitability for appointment as guardian, the Tribunal must consider whether the proposed appointee will act in the best interests of the represented person, has no conflict with that person, and is otherwise suitable to act. In determining suitability, the Tribunal shall take into account as far as possible the desirability of preserving existing relationships within the family of a person, the compatibility of the proposed appointee with the represented person and with the administrator of the estate, the wishes of the represented person, and whether the proposed appointee is able to perform the functions vested in her.
40 Given the history of conflict between DG and MM, the reported poor communication, the allegations made by DG in the most recent submission and in previous evidence before the Tribunal about MM's conduct, the proposed joint appointment of DG and MM as guardians would not be workable in the view of the Tribunal. Much of the conflict between DG and MM is said to have been exposed following the original applications being made by MM. The Tribunal has already found that MM acted in the best interests of the represented person in identifying the needs of the represented person and bringing the applications to the Tribunal (MK 2013at [28]).
41 The Tribunal has found that in the original proceeding, DG lacked appreciation of the medical information about the represented person and insight into the care needs of the represented person: see, for example,MK 2013 at [14], [18], [23] and [24]). The Tribunal found that the transfer of funds from the represented person's account to an account in which DG had an interest created a conflict which meant that DG could not be appointed guardian at that time (MK 2013at [27]). Although this issue has now been rectified by the intervention of the Public Trustee, it showed at that time a lack of understanding on the part of DG of the nature of the represented person's impairment and her need for protection, and the process which had been undertaken before the Tribunal. This appears to have been acknowledged by DG in the written submission.
42 Guardians are required to act unanimously ( s 53 of the GA Act); the level of animosity displayed in the review hearing, even a year after the orders were first made, and the evidence of poor communication between all the children indicate an intractable family conflict. Although the willingness on the part of DG to work cooperatively with MM, as stated in the written submission received following the hearing, is to be commended, the reestablishment of their relationship to enable them to communicate and act as guardians has not been demonstrated. If the relationship between DG and MM can be improved, as is proposed, it would clearly be a positive outcome, but it cannot be the reason for the appointment of a guardian as the Tribunal is not in a position to mediate the conflict between the siblings nor to attempt to restore the damaged relationship. The obligation on the Tribunal is to make a best interests decision for the represented person and to appoint a guardian or guardians able to perform the functions vested in them (s 44(2)(d) of the GA Act). Any delay, disagreement or conflict between the guardians regarding treatment decisions has the potential to impact adversely on the represented person.
43 To make the appointment of the Public Advocate as guardian of the represented person, the Tribunal must find that no one else is suitable for appointment.
44 As MM is proposed as the guardian as an alternative to the Public Advocate, the Tribunal will now consider each of the criteria set out in s 44 of the GA Act in turn to assess MM's suitability for appointment.
45 In respect of s 44(1)(a) of the GA Act, as noted above, the Tribunal has found that, in the past, MM has acted in the best interests of the represented person in identifying her needs, attempting to engage services and additional care on her behalf, and finally bringing the applications to the Tribunal because of a refusal of needed services by the represented person's late spouse. MM was reported by the original ACAT team to be reluctant to bring the applications, wishing to keep her mother living at home as long as possible. MM said that she brought the applications because of the concern expressed by the ACAT team that the represented person's needs were not being met, primarily, it seems, because they assessed that the represented person's spouse lacked insight into her care needs because of his own impairments.
46 Unfortunately, it appears that the applications made by MM damaged her relationship with her father. However, MM brought the matters to the Tribunal and orders were subsequently made appointing both a guardian and an administrator of the estate of the represented person. More recently, MM has maintained regular contact with the represented person and with staff at the facility where the represented person lives, and has reportedly assisted the represented person when she was admitted to hospital.
47 No conflict between the interests of MM and the represented person has been identified in the hearing or in the written submission filed (s 44(1)(b) of the GA Act).
48 In terms of the suitability for appointment and in respect of the criteria set out in s 44(2(a) of the GA Act of the desirability of preserving existing family relationships, at the time of the original appointment of the Public Advocate as guardian, the Tribunal determined that the reported conflictual relationship between MM and the spouse of the represented person - exacerbated, in the view of the Tribunal, by the views expressed by DG and AK to the spouse about MM's conduct in bringing the applications to the Tribunal - might be further damaged if she was appointed guardian (MK 2013at [28]). With the death of the represented person's spouse in late 2013, this consideration is no longer relevant.
49 Although there is reported to be continuing animosity between AK and DG and MM, the Public Advocate reports that this animosity has not impacted adversely on the represented person. The Public Advocate's submission is that since the represented person's admission to residential care, much of this conflict had been left behind.
50 MM has given an undertaking that if appointed guardian, she will communicate health decisions made for the represented person by telephone or by text message to DG who is in communication with AK and will pass them on to him as he refuses contact with MM.
51 Section 44(2)(b) of the GA Act refers to the compatibility of the proposed appointee with the represented person and with any administrator of the estate: MM maintains regular contact with the represented person and supports the reappointment of the Public Trustee as administrator. She says that she will, if appointed guardian, be able to work cooperatively with the Public Trustee.
52 In respect of s 44(2)(c) of the GA Act, the current wishes of the represented person regarding the appointment of a guardian cannot be ascertained. The Tribunal heard from the represented person at the original proceeding, and she was clearly confused and not able to answer questions. Dr FB notes, in her recent report, that the represented person cannot make any contribution to the hearing. According to the report of AB, the residential care facility manager, the represented person cannot converse appropriately, and AB notes that the communication of the represented person is 'monosyllabic, generally speaks in native [language]'. Despite the inability to ascertain the represented person's current views, the Tribunal generally accepts the position that any represented person would be unlikely to prefer the appointment of the Public Advocate over the appointment of a family member.
53 Section 44(2)(d) of the GA Act requires the Tribunal to consider whether the proposed appointee will be able to perform the functions vested in the guardian. In this case, it is submitted by the Public Advocate that the function of healthcare decision-making is the only function required for inclusion in the orders made on review.
54 Although the represented person is reported, in the submission made on behalf of AK and by DG, to be dissatisfied with her current accommodation, the Tribunal accepts the submission of the Public Advocate, which was not challenged in the hearing, that there is no continuing need for the function to determine where the represented person should live to be included in the orders. The represented person has been resident in the facility since December 2013 and no efforts have been made to move her, and there are no reports of any problems or issues with her accommodation other than those referred to in the submission. The Tribunal does not place great weight on the submission in this regard since it is more likely than not that the visit of DG on 10 August 2014 to the facility was the first she had made since the represented person's admission and she would therefore be in a difficult position in judging whether the accommodation was suitable for the represented person or not. If this issue does become a real concern for family members or attempts are made to move the represented person, a review of the guardianship order might be sought on an urgent basis for additional functions to be included in the order.
55 In respect of the function to consent to treatment for the represented person, it is argued by the Public Advocate that healthcare decisions are best made for the represented person by MM who is in regular contact with the represented person and with her direct carers and, as necessary, has been available to accompany the represented person to medical treatment appointments, including hospital attendances and admissions. In this regard, the Tribunal considers that this is a 'hands on role' played by MM. It should be noted that accompanying represented persons to appointments is not generally a task undertaken by the delegated guardian of the Public Advocate.
56 The assertion in the submission of DG and AK that MM has not understood the healthcare needs of the represented person is not accepted. The specific references in the submission to MM inaccurately reporting health issues are not supported by the evidence before the Tribunal. For example, the reported incontinence of the represented person was acknowledged by the represented person's spouse in the first hearing (T:21;30.05.13), a hip replacement is noted in the ACAT assessment dated 12 April 2012, and the need for food supplementation with special drinks recommended by the dietician is noted in correspondence from the geriatrician to the general practitioner which was before the Tribunal in the original proceeding.
57 The Tribunal accepts that MM has sought and followed medical and allied health professional advice about the care needs of the represented person. MM is familiar with the healthcare system, having a nursing background, and is familiar with the workings of the hospital where the represented person recently attended.
Conclusion
58 Having regard to the principles of the legislation, and the criteria which the Tribunal is directed to consider when determining the suitability of a proposed appointee for appointment as guardian, the Tribunal finds MM suitable for appointment. Although the ongoing conflict between the children of MK is acknowledged, this does not make MM unsuitable for appointment as the Tribunal accepts that the conflict does not impact on the represented person. As the Tribunal is satisfied that MM is suitable for appointment as the guardian of the represented person, pursuant to s 44(5) of the GA Act, the appointment of the Public Advocate cannot be made.
59 The focus of the Tribunal must be on the best interests of the represented person and on making appropriate orders that meet her needs consistent with the principles set out in s 4 of the GA Act which require that the least restrictive order be made for the represented person. The Tribunal accepts the submission of the Public Advocate that the appointment of MM as guardian is a less restrictive order than the reappointment of the Public Advocate.
60 MM's appointment is made following her undertaking to communicate by telephone or by text to DG, on a telephone number provided by DG, any significant health or care decisions made for the represented person. If DG continues to visit the represented person at the facility, she will also be able to directly inform herself about the represented person's situation.
61 Because of the established dementia diagnosis and the need for substitute decision-making for the represented person in the longer term, the orders are set for review in five years. The date of the review of the guardianship order will coincide with the date for review of the administration order made on 5 August 2014.
Order
62 The Tribunal makes and order in the following terms:
The Tribunal declares that the represented person:
(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 or for the protection of others; and
(d) is in need of a guardian,
and the Tribunal orders that:
On the undertaking of MM to communicate by telephone or text message any significant health decision to her sister DG.
1. The order is revoked and a guardianship order in the following terms is substituted for it:
MM of [address deleted] be appointed limited guardian of the represented person with the following function:
(a) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person.
2. This order is to be reviewed by 5 August 2019.
I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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