MU and AVU
[2006] WASAT 72
•27 MARCH 2006
MU and AVU [2006] WASAT 72
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 72 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1353/2005 | 29 SEPTEMBER 2005 | |
| Coram: | MR J JAMES (SENIOR SESSIONAL MEMBER) | 27/03/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | MU is appointed limited guardian. The Public Trustee is appointed plenary administrator | ||
| B | |||
| PDF Version |
| Parties: | MU AVU |
Catchwords: | Guardianship and administration Needs of the represented person-Need for a guardian and administrator |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(c), s 4(2)(d), s 43, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 64, s 64(1)(a), s 64(1)(b), s 68 |
Case References: | Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) at 320 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MU and AVU [2006] WASAT 72 MEMBER : MR J JAMES (SENIOR SESSIONAL MEMBER) HEARD : 29 SEPTEMBER 2005 DELIVERED : 27 MARCH 2006 FILE NO/S : GAA 1353 of 2005 BETWEEN : MU
- Applicant
AND
AVU
Represented Person
Catchwords:
Guardianship and administration - Needs of the represented person - Need for a guardian and administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(c), s 4(2)(d), s 43, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 64, s 64(1)(a), s 64(1)(b), s 68
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Result:
MU is appointed limited guardian. The Public Trustee is appointed plenary administrator
Category: B
Representation:
Counsel:
Applicant : Self-represented
Represented Person : Self-represented
Solicitors:
Applicant : Self-represented
Represented Person : Self-represented
Case(s) referred to in decision(s):
Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) at 320
Case(s) also cited:
Nil
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Summary of the Tribunal’s Decision
1 The Tribunal appointed the wife as limited guardian and the Public Trustee as plenary administrator under the Guardianship and Administration Act 1990 (WA) for an 84-year-old Croatian man who had been diagnosed with progressive dementia.
2 The guardian was appointed to make decisions about what contact, if any, the man should have with others and the extent of that contact.
3 The man's daughter proposed herself as both guardian and administrator, stating that she would care for her father in her own home as distinct from the nursing home where he had been placed.
4 The Tribunal decided that the man would benefit from the appointment of a guardian because his daughter had threatened to remove him from the nursing home and had been verbally abusive to the nursing staff. The man's wife was appointed as limited guardian to provide clarity and certainty as to how much contact he should have with others. The daughter was not considered a suitable guardian because of her seeming lack of awareness of the extent of the man's needs.
5 The Public Trustee was appointed as administrator because, after considering several individuals including the wife and daughter, no individual was considered both suitable and willing to fulfil the role. The wife was considered to lack the language fluency and capacity and the daughter the level of stability required to be administrator. Others at the hearing were deterred from offering themselves by the daughter's open hostility towards them.
Background
6 These reasons relate to applications for guardianship and administration for AU (the represented person) made by MU, his wife. AU did not attend the hearing which was held in a narrow, upstairs room of the nursing home where he was resident. Dr AC, a consultant geriatrician who had formally assessed AU three weeks before the hearing, had stated in his report that, because of an "inability to understand", it was not in AU's best interest to attend the hearing.
7 The application was heard on 29 September 2005 and was attended by MU, VU (daughter), KZ-R (sister-in-law), AB (friend), a Croatian interpreter and Dr ML (representative of the Public Advocate).
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Decision
8 The Tribunal has decided to appoint MU as the represented person's limited guardian with the function of determining what contact, if any, the represented person should have with others and the extent of that contact. The length of the order is five years.
9 Additionally, the Tribunal has decided to appoint the Public Trustee as plenary administrator for the represented person. The length of this order is also five years.
10 The Tribunal will provide reasons for its determination by firstly stating the relevant legislation, then discussing the written material both medical and other submissions followed by a discussion of the oral submissions and finally analysing all the information against the legislation to come to its determination.
Relevant legislation
11 When considering guardianship and administration, the Tribunal must be satisfied that the represented person is someone for whom a guardian and administration could be appointed (the question of capacity) and if found incapable, whether the person should have a guardian/administrator appointed (the question of need). If a guardian/administrator is to be appointed, the final questions to be considered are what functions should be given to the guardian/administrator and who that guardian/administrator should be.
12 The relevant legislation is contained in s 4, s 43, s 44, s 64, of the Guardianship and Administration Act 1990 (the GA Act).
13 With regard to guardianship, the Tribunal needs to be satisfied that the person for whom an application has been made is incapable of looking after his own health and safety, or unable to make reasonable judgements in respect of matters relating to his person or is in need of oversight, care or control in the interests of his own health and safety or for the protection of others, and is in need of a guardian (s 43).
14 In the case of administration, the Tribunal must be satisfied that the person for whom an application has been made is incapable by reason of a mental disability to make reasonable judgements in respect of matters relating to all or any part of his estate, that he is in need of an administrator of his estate, and cannot have such need met by other means less restrictive of his freedom of decision and action (s 64).
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15 The principles to be observed by the Tribunal when dealing with proceedings under the GA Act are set out in s 4. The primary concern of the Tribunal shall be the best interests of the person for whom the application has been made. The remaining principles are, firstly, that every person is presumed to be capable of looking after his own safety and health; of making reasonable judgements in respect of matters relating to his person; of managing his own affairs; and of making reasonable judgements in respect of matters relating to his estate. Secondly, an order appointing a guardian or administrator shall not be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Thirdly, a plenary guardian or administrator shall not be appointed if the appointment of a limited guardian or administrator would be sufficient, in the opinion of the Tribunal, to meet the needs of the person concerned. Fourthly, an order appointing a limited guardian or an administrator shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person’s freedom of decision and action. Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.
16 The question of who should be appointed guardian is provided for in s 44 of the GA Act. The person must be over 18 years of age, consent to the appointment, and in the opinion of the Tribunal, will act in the best interests of the person for whom the application has been made; not be in a position where their interests conflict with the interests of that person and is otherwise suitable to act as guardian for that person. When considering suitability the Tribunal shall take into account as far as possible the desirability of preserving existing relationships within the family of the person for whom the application has been made; the compatibility of the proposed appointee with that person and with the administrator (if any); the wishes of that person and whether the proposed appointee will be able to perform the functions vested in them. A proposed appointee who is a relative of the person for whom the application has been made is not by virtue only of that fact taken to be in a position where their interests conflict with that person. An administrator is not disqualified from being appointed a guardian. Finally, except where appointed to act jointly with another person or persons, the Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
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The written submissions
17 The represented person is a now 85-year-old married man of Croatian origin. He was admitted to Hollywood Private Hospital on 10 June 2005 with increased confusion, incontinence and poor appetite and placed under the care of Dr AC, a consultant geriatrician. Dr AC's report of 9 September 2005 describes the represented person as having "moderate-severe cognitive impairment" caused by dementia, probably of the Alzheimer's type.
18 During this admission, the medical team assessed the represented person as having a pre-existing dementia. He required assistance with all his activities of daily living and was described in the social work report of September 2005 prepared by NS for the hearing as being "significantly confused and disorientated".
19 The treating team recommended that residential care was most appropriate to meet the represented person's needs. Consequently, an ACAT assessment was completed on 15 July 2005 for high level care.
20 Prior to his admission to Hollywood Private Hospital, the represented person had lived with his wife, MU in their home of over 50 years but, in the last four weeks before being admitted, with their daughter, VU in her home.
21 MU lodged applications for guardianship and administration on 9 August 2005, proposing herself for both appointments. Citing accommodation decisions as being the only ones for a guardian to make, the applicant states that "[VU] does not agree that [AU] requires nursing home care". Subsequent to the applications being filed, the represented person gained admission to St Luke's Nursing Home.
22 The applicant states that the represented person "…gets lost, difficulty locating own home when wandering. Mood changes, he becomes very frustrated, very forgetful". In response to the question on the application form about why a guardian is needed, the applicant states "So that I am the primary decision maker. Our daughter would like to care for [AU] at home and I do not agree or think this is a safe decision".
23 The applicant has enclosed with her application copies of medical, social work and ACAT assessments of the represented person with respect to his capacity to make decisions and other matters. These assessments have been referred to above. The applicant is of the view that the
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- represented person is unable to make reasoned decisions about his finances and accommodation.
24 The Public Advocate has provided a written report to the Tribunal. Her representative, Dr ML, spoke with the represented person prior to the hearing and relevantly advised as follows: he said he needed help and was unsure about going to a nursing home; asked how he felt about MU being appointed his guardian, he nodded and said that would be okay; regarding his financial estate, he reported that he owned two properties and had two bank accounts. He could not say how much either of the properties was worth, nor the amounts in either of the bank accounts.
25 Asked by the Public Advocate about various people looking after his estate, the represented person was initially ambivalent about KZ-R, but supportive of AB. He stated that it was beyond his wife to handle his estate. In the event that it was all too much for AB, then the Public Trustee could be appointed. After exploration of his ambivalence towards KZ-R, the represented person stated that it had more to do with her being married to an Italian than anything to do with her as a person. His final position was that he supported the joint appointment of KZ-R and AB to manage his estate.
26 In the report the Public Advocate states that, "in the case for contact, there appears a need to protect [AU] from [VU's] verbal abuse and irrational behaviour". The report further states that, "there have been times when [AU] has become upset and distressed at his daughter's behaviour…[and]…there may be a need to protect [AU] from continual exposure to negative put-downs and behaviour that may be detrimental to his health".
27 The Public Advocate's report concludes with the suggestion that KZ-R and AB be considered for appointment as joint administrators of the represented person's estate for the maximum period allowable under the GA Act.
28 As mentioned above, there is a "Social Work Report" of September 2005 setting out in some detail the represented person's functioning prior to and during his hospital admission. Under the heading "Family and significant people", NS, the social worker documents a number of instances involving VU, nursing staff, security and herself. The instances revolve around VU's verbal abuse towards her father, nursing staff and Dr AC. The report goes on to state that, "I have been advised by [MU]
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- and [KZ-R] that [VU] has a diagnosis of paranoid schizophrenia and is linked in with a community mental health team".
29 Later in the report, the following is stated by NS: "I have grave concerns regarding [VU's] ability to care for [AU] at home and in managing his financial affairs. [VU's] behaviour has appeared erratic at times and her thought processes irrational."
30 NS's report recommends that, given the complexity of family dynamics, an independent administrator be appointed and also "…that a Guardian be appointed to ensure [AU's] interests and well-being are prioritised in regards to his place of residence".
Oral submissions (the hearing)
31 The applicant's ability to make oral submissions is severely limited by her own frailty and difficulty expressing herself, even with the aid of an interpreter. Under questioning, she states that she is happy with the care her husband is receiving at the nursing home and sees it as a permanent placement for him.
32 The Public Advocate states that, with the represented person's placement at St Luke's Nursing Home being a permanent one, accommodation has ceased to be a guardianship issue. Referring to the social work report, he states that the daughter was unable to meet the represented person's needs when he was in her care. The Public Advocate adds that, when the daughter was asked how she would deal with her father's incontinence, she replied that she would lock him in a room and provide him with a commode.
33 VU, the daughter submits that it is her responsibility to look after her father and that "anything's better than a public nursing home". She states that she is retired, has all the time in the world and that her fiancé would help to look after her father. If a crisis arose, she would call the police to fetch him.
34 KZ-R, the represented person's sister-in-law supports the wife's appointment as limited guardian for contact decisions only. AB, the represented person's friend also shares this view.
35 In relation to administration, the Public Advocate repeats the submission made in his written report, namely that KZ-R and AB are proposed as joint administrators. He states that should they feel that they
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- are unable to do that, then the Public Trustee is the recommended administrator.
36 KZ-R states that she is "not 100 per cent sure" about taking on the role, she has high blood pressure and her family have concerns about the likely effects were she to be appointed administrator. When questioned, she admits to being ambivalent about it.
37 AB states that he is motivated by wanting to help the represented person's wife and to avoid administration going to the Public Trustee. He admits that the daughter's comments directed to him in the hearing have caused him to hesitate and concludes by saying "I’m not try [sic] to do anything now".
38 AB agrees that he would not want to be sole administrator and adds that he would be "quite happy with authority give to [VU]". When pressed about whether he has confidence in VU's ability to be administrator, AB says "not 100 per cent".
39 VU, the daughter states that, if appointed, she would "…get it (her father's money) out of the Commonwealth Bank and make more capital…" She states that she is half a millionairess herself. She adds that her highest concern is her father's welfare.
40 Through the interpreter, the applicant states that the daughter is not capable of looking after her father. The applicant continues to propose herself as administrator.
Discussion of the submissions and findings of the Tribunal
41 The medical and allied professional reports are consistent in their assessment of the represented person's lack of capacity to make reasonable decisions in respect of his living situation and finances. No party to the hearing challenges this view.
42 The Tribunal therefore, finds that the represented person is a person for whom both guardianship and administration orders could be made and that he satisfies the provisions of s 43(1)(a), 43(1)(b) and s 64 (1)(a), respectively, of the GA Act.
43 When a person is found to be incapable, pursuant to s 43(1)(b) and s 64(1)(a) of the GA Act, the question that next has to be considered is whether he "is in need of" a guardian and an administrator pursuant to s 43(1)(c) and s 64(1)(b), respectively.
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44 The meaning of "is in need of a guardian" was considered by the Full Board of the Guardianship and Administration Board in Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) at 320 - 332.
"…it is apparent that where the provisions of s 43(1)(b) are met it will usually follow that there will be a need for a guardian as provided in s 43(1)(c). The same can also be said in relation to the need for an administrator under s 64(1)(b). This is so because unless a guardian or administrator is appointed there would in most cases be no one with legal authority to make decisions in respect of the represented person. There would in other words be a legal vacuum. Therefore the "need" in those sections in our view means the "need" for someone to have formal legal authority to make decisions on behalf of the represented person in order to resolve issues relating to the personal affairs of the represented person or to manage and protect the financial estate."
45 There may, however, not be a need for a guardian pursuant to s 43(1)(c) if for example, "…there is some other statutory position which gives legal authority for the decision-making in question […] or if there is in fact no live issue or foreseeable conflict in relation to the personal affairs of the represented person so as to give rise to the need for this Board to intervene in the life of the represented person by making a formal order". (MM at 330).
46 The Tribunal must further determine "need" by taking into account the meaning of "needs of the person" in s 4(2)(c) of the GA Act which was also considered by the Full Board in MM(at 330):
"…the phrase 'needs of the person' …involves a different test. The 'needs' there described are of wide import and encompass all the wants and necessaries of the person. Thus there is a two step process. The Board must first determine whether there is a need for a guardian in s 43(1)(c) (or a need for an administrator in s 64(1)(b) and then move on to the issue whether notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of the person can nevertheless be met under informal arrangements which are less restrictive of the person’s freedom of decision and action."
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47 There is currently no legal authority in place for the represented person in respect of decisions about his living situation or finances. There are, however, two "live issues" that are in conflict and currently remain unresolved. The issues are that of the represented person's contact with others at the nursing home where he resides and the competent management of his financial affairs. The applicant proposes herself as the decision-maker in both instances and is opposed by her daughter who seeks to be appointed in her place.
48 The Tribunal agrees that a "legal vacuum" exists in the represented person's personal affairs and finds that he is in need of a guardian pursuant to s 43(1)(c) of the GA Act.
49 The Tribunal makes a similar finding in relation to the represented person's financial affairs pursuant to s 64(1)(b) of the Act.
50 All parties to the hearing are in agreement that the represented person needs both a guardian and administrator and have outlined those needs both in written reports and oral evidence submitted at the hearing. The Tribunal therefore finds that the needs of the represented person, pursuant to s 4(2)(c) of the GA Act, cannot be met except by the appointment of a guardian and administrator. The Tribunal is not, however, convinced that the represented person is in need of a guardian with plenary powers, and in keeping with the principle that a plenary guardian should not be appointed if a limited guardian is sufficient (s 4(2)(d)), appoints a guardian with the following function: determining what contact, if any, the represented person should have with others and the extent of that contact.
51 In relation to administration, the Tribunal is satisfied that nothing less than a plenary administrator would be sufficient to meet the financial management needs of the represented person.
52 As to who should be the guardian, MU has proposed herself and VU has proposed herself. The Tribunal does not find VU to be suitable to be the represented person's guardian. She is said to suffer from a diagnosed mental illness and her behaviour, both in the hearing and as reported separately by the hospital social worker and Public Advocate, would seem to bear this out.
53 MU, on the other hand, has been the spouse of the represented person for over 50 years and, although their relationship was described by KZ-R in the social work report as "never appear[ing] to be very loving", both KZ-R, the represented person's sister-in-law and AB, his longstanding
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- friend together with the Public Advocate support MU’s appointment as guardian. The Public Advocate's report states that, when interviewed, the represented person "accepted that [MU] was best placed to make decisions for him in regard to…lifestyle issues".
54 The Tribunal finds that MU is suitable to act as the represented person's guardian. As to the length of the order, the Tribunal is of the view that the represented person will likely require the authority and advocacy of a guardian for the indefinite future. The Tribunal will therefore make the order five years, the maximum period allowable under the GA Act.
55 Regarding who should be the administrator, both MU and VU have proposed themselves. The Tribunal does not find VU to be suitable for the same reason as outlined above in relation to guardianship.
56 The Tribunal accepts and relies upon the evidence of the Public Advocate that MU "probably doesn't have the language ability or capacity to act as administrator" and hence, that she too, is not suitable to be the represented person's administrator.
57 Although KZ-R and BA were initially proposed by the Public Advocate to be joint administrators and were seemingly supported by the represented person to assume this role, each of them has withdrawn under verbal abuse by VU in the hearing. In these circumstances, the Public Advocate's recommendation is for the appointment of the Public Trustee.
58 In the absence of an individual who is both suitable and willing to act as administrator, the Tribunal appoints the Public Trustee. Regarding the length of the order, the Tribunal is of the same view as for guardianship above and, accordingly, will make the order five years.
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JAMES, SENIOR SESSIONAL MEMBER
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