MK
[2013] WASAT 146
•19 JULY 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MK [2013] WASAT 146
MEMBER: MS F CHILD (MEMBER)
HEARD: 30 MAY, 20 JUNE AND 19 JULY 2013
DELIVERED : 19 JULY 2013
PUBLISHED : 6 SEPTEMBER 2013
FILE NO/S: GAA 1698 of 2013
GAA 1699 of 2013
MATTER :MK
Represented person
Catchwords:
Guardianship and administration - Application for appointment of a guardian and an administrator - Represented person with diagnosis of Alzheimer's disease and dementia - Refusal of services by spouse - Need for an independent guardian to consent to services and determine treatment - Transfer of funds from represented person's bank account to a joint bank account in the names of her spouse, son and daughter - High level of family conflict - Need for independent administrator to manage estate
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 64
Result:
Public Trustee appointed as administrator
Public Advocate appointed limited guardian
Summary of Tribunal's decision:
Applications were made to the Tribunal for the appointment of a guardian and an administrator for an elderly woman, MK, who has a diagnosis of Alzheimer's dementia. The applicant was one of the daughters of MK who said she was encouraged to make the applications by the social worker and geriatrician from the Aged Care Assessment Team from the local hospital, as there were concerns from the team that MK needed services at home but that these had apparently been refused by her husband who was her primary carer.
Unfortunately, the applications caused an estrangement between the applicant daughter and her father and appeared to increase existing conflict between her siblings who opposed the applications.
The Tribunal found that MK was a person for whom a guardian and an administrator could be appointed because of her advanced dementia. It also found she was in need of a guardian and an administrator because her husband, who was her primary carer, was also elderly, had health problems of his own, and did not appear to appreciate the level of care his wife required and had refused services which she needed. The Tribunal also found he could not protect MK's financial interests because of his own memory problems.
The Tribunal learned that, prior to the hearing of the applications, but after receiving notice of the hearing date, the husband had gone with his son, A, and daughter, D, to the bank and the funds of MK had been removed from her bank account and placed in an account in the joint names of the husband, the daughter and the son. At a subsequent hearing, the husband denied any knowledge of the transfer and it was apparent that he did not remember it. On an application by the Public Trustee, who had been appointed in an interim capacity at the first hearing, the Tribunal made an order freezing the operation of the joint account.
The Tribunal determined that there was a need for an independent administrator to safeguard the represented person's interests and to pay for needed services on her behalf. The Public Trustee was appointed as the plenary administrator of her estate.
In the circumstances, the evidence of the severity of MK's condition, the demonstrated lack of insight by her husband into her care needs, the reported lack of cooperation with services by their daughter, D, and the significant conflict between all of the children of MK, the Tribunal found that there were no less restrictive means to meet her needs for care now and into the future. The Tribunal determined that a guardian was needed to decide where MK was to live, with whom she was to live, to make her treatment decisions and to determine the contact she has with others and services on her behalf. Although both daughters and a family friend proposed themselves for appointment as her guardian, the Tribunal determined that MK needed an independent guardian because of the level of the conflict between the children of MK, which had extended to involve their neighbours.
Category: B
Representation:
Counsel:
Represented person : N/A
Solicitors:
Represented person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Applications
M, the daughter of MK, made an application in early May 2013 for the appointment of a guardian and administrator for her mother.
MK is an elderly woman, who has been married to her spouse for 64 years. They have three living children, M, the applicant daughter, another daughter, D and their son, A.
M says she made the application because she was encouraged to do so by the geriatrician and the social worker from the Aged Care Assessment Team (ACAT) who had concerns that her father was refusing services required for her mother's care. In the original application she proposed herself for appointment as administrator and guardian.
The applications were first heard on 30 May 2013. The Tribunal heard from the M, the applicant, her sister D, the spouse of the represented person, neighbours of the couple and from advocates for D and A and the Public Advocate's representative. Although the represented person attended the hearing she was not able to make a meaningful contribution. Leave was granted for A to be represented by an agent because he has an acquired brain injury and reportedly needed assistance to present his views to the Tribunal.
At the first hearing, A said that he had moved into the parent's home to care for his parents. He said he had been telephoned by his sister D who had said there was trouble at home, as M was attempting to take the house from their parents. It is understood this was a reference to M's application for the appointment of a guardian and administrator for their mother. The spouse and both A and D opposed the applications made. A and D say that they had been made without any consultation with them or their father. They objected to the geriatrician and the social worker visiting their parent's home without notice. They, and advocates on their behalf, said that their parents were managing; that the spouse was able to care for the represented person, both in relation to her personal needs and management of her finances; and that there was no need for orders to be made.
After hearing from the parties the Tribunal appointed the Public Trustee pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) (GA Act) as it was satisfied that there was an immediate need for the protection of the represented person's estate on the basis that there was an allegation that funds of the represented person were said to have been used by the spouse to pay debts of A. The applications were adjourned to obtain a medical report from MK's general practitioner and to hear from the ACAT team members.
By the time of the final hearing, A was no longer caring for their parents and had reportedly moved out of the family home, following an incident which it is agreed by his agent that he became agitated when M visited their parents without notice to A and threatened to kill M. A did not appear at the final hearing and this admission was made by his agent.
At the final hearing, the Tribunal also heard from NG, the social worker from the ACAT team.
Legislation
The Tribunal can make an appointment of a guardian and administrator if satisfied that the person is a person for whom those orders can be made and that orders are needed.
Pursuant to s 64 of the GA Act the Tribunal may appoint an administrator if satisfied that the person is unable, by reason of a mental disability, of making reasonable judgments about her estate, and there is a need for the order.
Pursuant to s 43(1(b) of the GA Act, a guardian may be appointed for a person if the Tribunal is satisfied that the person is unable to look after her own health and safety and is unable to make reasonable judgments about her person or in need of oversight and care in the interest of her own health and safety.
These provisions are subject to principles set out in s 4 of the GA Act which provide that the primary obligation of the Tribunal is the best interests of the represented person. The principles further provide that persons are presumed to be capable of making judgments about their person and about their financial affairs unless the contrary is proved to the satisfaction of the Tribunal. Orders should not be made if there is a less restrictive means by which the represented person's needs can be met. In any proceeding before the Tribunal the wishes of the proposed or represented person should be ascertained.
To determine this application the Tribunal must consider the following:
•Is the represented person a person for whom orders can be made?
•Is the represented person in need of a guardian?
•Who should be appointed guardian?
•Is the represented person in need of an administrator?
Is the represented person a person for whom orders made be made?
Although the spouse considers that represented person is 'normal', and that as her partner of 64 years he knows her best, and D and A consider that the represented person manages most matters for herself, the medical evidence is clear that the represented person has a diagnosis of Alzheimer's dementia, which is described by her general practitioner, Dr HR, as 'severe'.
In her report dated 3 July 2013, Dr HR describes the represented person as being unable to make judgments about her personal healthcare, her living situation, or her financial affairs, and that she is incapable of giving an enduring power of attorney.
A report from Dr MKK, a geriatrician, provides a diagnosis of Alzheimer's dementia and poor mobility, which is said to be a progressive condition. Dr MKK says that the represented person is incapable of making reasonable judgments about her person '… due to apathy related to dementia, patient unable to problem solve (eg getting up from floor), neglect[s] to eat unless prompted'. Dr MKK gives the opinion that the represented person is incapable of making decisions in relation to her living situation. In relation to her financial affairs the comment is made, '… unable to discuss at all as patient has no knowledge of her assets. MMSE [Mini Mental State Examination] seven out of 30 in December 2012'. The represented person is described as incapable of giving an enduring power of attorney. Dr MKK says it would be detrimental for the represented person to attend the hearing as she rarely leaves the house, becomes disoriented and distressed, and that she could make no contribution to the hearing. The presentation of the represented person at the hearings is consistent with the medical opinion.
Although the opinion of the geriatrician is challenged by the agent for A on the basis that the doctor had met the represented person only once, this is not accurate. The correspondence from the ACAT team indicates more frequent assessments of the represented person by the ACAT team. The Tribunal accepts the opinions of Dr MKK and Dr HR and finds that the represented person has dementia, and given her impairments, she is unable to make judgments about her person or her estate. She is therefore a person for whom both a guardian and an administrator can be appointed.
Is the represented person in need of a guardian?
Throughout the proceedings there was disagreement amongst the children, and also from persons speaking on their behalf, as to the level of assistance provided by the children to their parents. Allegations were also made about the refusal or cancellation of services by the spouse and D's reluctance to accept services on behalf of her parents. Prior to the final hearing, allegations were made to the Public Advocate that D has been uncooperative with the current service providers, which she denies.
The submissions made on behalf of A and D by their advocates, assert that A was providing care and support for his parents while he lived there for five weeks prior to, and for a time after, the first hearing. When A left, D then became the carer visiting the property each day. It is said that M supported her parents to the extent possible visiting them after work and liaising with the ACAT team. It is impossible to determine the accuracy of the assertions as all are in conflict. It is apparent that the children of MK have not been able to cooperate or even communicate about the care and support their parents need.
Correspondence from the ACAT geriatricians to the general practitioners for MK and her spouse over the period December 2012 to 18 July 2013, indicate attempts to deliver services to MK and her spouse. In a letter regarding the spouse which notes he has 'mild memory loss' dated 5 April 2013 it is noted that:
[The represented person] is eligible for an EACHD (Extended Aged Care At Home (Dementia)) package [and] high level respite and residential care. However, services instituted by [their daughter M] were invariably declined by [the spouse] eg he was dissatisfied with the house cleaning services; and he cancelled nutritional drinks from the Dietician as [the represented person] was not taking them.
In the letter also dated 5 April 2013 regarding MK, it refers to M acknowledging that 'her parents were in a precarious balance but that she was keen to keep them in their own home for as long as possible. She would like to apply for guardianship so that services cannot be declined by [the spouse] in the future'.
In a further report dated 18 July 2013 to the spouse's general practitioner, the geriatrician notes that following an extensive discussion about the spouse's capacity to execute an enduring power of attorney and an enduring power of guardianship, the doctor reports:
After 30 minutes of the above discussion, it transpired that he had been to his GP Dr [name deleted] on 15/7/2013 and signed documents nominating [D] as his EPA and EPG. He had forgotten this, and appeared genuinely surprised when informed.
At my assessment today I felt that [the spouse] lacked the capacity to appoint an EPA EPG despite repetitive education that the scope of the powers he was only barely able to register and reflect on this information. I also felt today that he still appeared undecided about whom he was going to appoint as EP[A]/EPG, two days after having apparently nominated [D].
The report also notes 'Rapport was very difficult to establish during the interview because [the spouse] and [D] both appeared suspicious of our intentions. [The spouse] sees us as part of the Government which has taken control of his money and life.'
The original application was prompted by M's view, supported by the ACAT team, that services needed to be accepted by a guardian to ensure that the represented person received them and that they were not cancelled by the spouse, either because he believed that the carers were intrusive or for financial reasons. The references in the material from the ACAT team include M being reluctant to make the application and that she supported her parents remaining in their home. When the application was finally made, it appears that the spouse became suspicious of the motives of M and their relationship deteriorated. It is clear that the views of D and A expressed in the hearings or on their behalf about M's motives contributed to this deterioration. It was alleged that the applications were made without consultation with the spouse but the social worker, NG, in her evidence in the final hearing, challenges this. It may be that the spouse simply could not remember the discussion which is said to have occurred with him. If the represented person was accepting of services and the spouse had insight into her care needs, there would be no need for a guardian for the represented person. However, this is not the case. The breakdown in the relationship between M, who was the liaison person with the ACAT team, and the reluctance of D and A and the spouse to accept services, indicates that a guardian needs to be appointed to deal with this issue. The deterioration of the spouse's management of MK's affairs was evident over the course of the proceedings and his suspicion about the services provided, including his concern about the pendant alarm as a monitoring device, indicate a need for someone, other than him, to make decisions about the care the represented person receives.
In the first hearing, there are references to the represented person suffering severe constipation and severe pain, but it is not clear whether medical assistance was sought for her in relation to this, or for pain management. The reliance on the spouse, as next of kin, to make decisions for the represented person is not appropriate, given his own impairment and problems with memory as indicated in his presentation and confirmed in the medical reports before the Tribunal. The conflict between D, A and M is so great that in the course of the proceedings, it is reported that threats have been made, the police have been involved and have attended the represented person's home. A is reported to have left the family home after his agent agrees he threatened M at the home. Neighbours have been involved and it is alleged voices were raised. The Tribunal accepts that these incidents have occurred and the likely impact of the conflict on this elderly couple. The level of conflict among the children of MK reinforces the need for a guardian to manage the contact the represented person has with others.
Who should be appointed guardian
The applicant, and later her sister D, propose themselves for appointment as guardian of the represented person as does Ms K, the daughter of the long time friends and neighbours of the represented person and her spouse.
The Tribunal does not find D suitable for appointment as guardian. She was less than frank about the financial situation of the represented person when she appeared at the Tribunal on 30 May 2013. She did not disclose the transfer of funds from the represented person's account into one in which she has an interest and in which she had participated only days before the hearing. It has to be said that neither A, his agent, nor the spouse, disclosed the transfer of the represented person's funds either. D's professed confusion about the nature of her interest in the account when asked at the final hearing is not accepted. It is clear that the account is in the joint names of D, A and their father. D's interest in the account means that she is in conflict with the interests of the represented person and is therefore precluded from appointment as guardian (see s 44(1)(b) of the GA Act.)
While it is accepted that M has been the family member who has identified the needs of her parents and attempted to work effectively with the ACAT team, and acted appropriately and in their best interests in bringing the applications to the Tribunal, the level of conflict between her and her siblings makes her unsuitable for appointment as guardian. The conflict between the siblings has involved the applicant's son and has spread to the neighbours. The suspicions and ongoing antagonism to M's involvement by D and A following the applications to the Tribunal might lead to further erosion of the relationship between M and their father if she were appointed as the guardian. The Tribunal must consider the desirability of preserving existing family relationships of the represented person when determining the appointment of a guardian (s 44(2)(a) of the GA Act).
In relation to the proposal from Ms K to her appointment, I accept that the relationship between Ms K's family - in particular her parents, and the represented person's family has been one of continuing support over many years and both she and her parents have the best interests of both the represented person and her spouse at heart. However, the extreme conflict between the children of the represented person has effectively divided the neighbours and persons supporting the elderly couple into two camps. To appoint a guardian from one of the camps might lead to a lack of confidence in the independence of the guardian and in the decisionmaking for the represented person. For these reasons, the Tribunal finds that in the current circumstances of the represented person, that there is no one else suitable for appointment and appoints the Public Advocate as guardian of the represented person.
Is the represented person in need of an administrator?
In respect of the financial affairs of the represented person, the Tribunal learnt from the Public Trustee that prior to the first hearing the spouse, the represented person, and D and A, attended their local bank and arranged for the transfer of funds from an account in the sole name of the represented person into an account held in the joint names of the spouse, A and D. When later questioned about this by the solicitor for the Public Trustee, D said that this had been done in an effort to protect the represented person's funds from the Public Trustee. However, the transfer of money had occurred on 21 May 2013, and the Public Trustee was not appointed with the authority of an administrator until the hearing which occurred on 30 May 2013.
Following the first hearing, at which the Public Trustee had been appointed pursuant to s 65 of the GA Act, the Public Trustee received advice from the bank regarding funds of $31,815.66 transferred from the represented person's account into an account created for the purpose of receiving the funds in the joint names of the spouse, D and A. The Public Trustee sought urgent orders, pursuant to s 72(1) of the GA Act which refers to Pt B of Sch 2 in the GA Act, for the preservation of the property of the represented person. As is the practice, the application was referred to the President who constituted the Tribunal as a single member and the application was heard ex parte on 20 June 2013. The Public Advocate supported the orders proposed by the Public Trustee. Orders were made on that day restraining the bank from releasing any funds from the account in the joint names of the spouse, D and A, for 30 days or until further order of the Tribunal.
At the final hearing on 19 July 2013, the spouse was asked about the transfer of the funds. The spouse said that he did not remember, but it was a 'big amount of money'. Later, he said he withdrew money from the represented person's account to prevent A's car being repossessed. However, this refers to an earlier occasion when funds were withdrawn to prevent the repossession of A's vehicle. The spouse said that the represented person had had $50,000 in her account but that it had been taken over by the Public Trustee. He then attempted to refer to the bank books, but it was apparent he could not remember the creation of a joint account with D and A, to receive the funds transferred from the represented person's account. Despite his manifest confusion about the sequence of events, D maintains her position, that the spouse makes the financial decisions and she merely supports what he wants to do. She asserts that the spouse manages the represented person's affairs adequately and that no orders are required. Through his agent, A is said to support the appointment of the Public Trustee as administrator.
It is apparent that the spouse cannot remember critical matters regarding the estate of the represented person, so it is not appropriate that he manage her affairs. The spouse is also in a position of conflict, since funds which are acknowledged to be the represented person's funds, have been transferred into an account in his name (jointly with A and D).
The Tribunal determined that the Public Trustee should be appointed as plenary administrator to ensure the protection of the represented person from financial abuse and to recover the funds transferred from her account.
Although the represented person has a progressive condition and will not recover her capacity to manage her personal and financial matters for herself, the orders are made for a period of 12 months, as at that time it may be possible to make less restrictive orders for the represented person if there has been a reduction in the conflict.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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