NCK

[2005] WASAT 283

NCK [2005] WASAT 283

Last Update :11/11/2005

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2005] WASAT 283
Published:
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:648/2005, GAA:688/2005, GAA:979/2005	Heard:	2 SEPTEMBER 2005
Coram:	MS F CHILD (MEMBER)	Delivered:	26/10/2005
No Pages:	15	Judgment Part:	1 of 1
Result:	Orders revoked
Category:	B

Parties & Catchwords


Judgment
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JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : NCK [2005] WASAT 283 MEMBER : MS F CHILD (MEMBER) HEARD : 2 SEPTEMBER 2005 DELIVERED : 26 OCTOBER 2005 FILE NO/S : GAA 648 of 2005

GAA 688 of 2005
GAA 979 of 2005

BETWEEN : NCK

Represented Person

Catchwords:

Guardianship and administration - Review of orders - Need - Represented person not resident in Western Australia - No need for orders

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 43(b), s 43(1), s 43(2)(c), s 64(1), s 64(1)(a), s 64(1)(b), s 67(1), s 84, s 86, s 87

Result:

Orders revoked

(Page 2)

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

Re LGW; Review of Guardianship Order, unreported decision of the Board delivered 7 May 2004 (Deputy President Pamela Eldred (presiding) and Ms Hannah Leslie and Ms Felicity Child, Members)
Re NCK Application for Review of Guardianship order, unreported decision of the Board delivered 9 July 2004 (Ms Felicity Child, Member)
Re NCK Application to Full Board for Review of a Determination of Board for Appointment of Guardian, unreported decision of the Full Board delivered on 27 October 2004 (Hon Justice ML Barker presiding, Ms J Stanton, Ms H Leslie, Members)
Re S [Hospital Patient

Foreign Curator, 1996, Fam 23]

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Following a review, the Tribunal revoked orders made under the Guardianship and Administration Act 1990 (WA) appointing the Public Trustee as plenary administrator and the Public Advocate as plenary guardian for a woman suffering from dementia who had been removed from Western Australia and was now living in Texas in the United States of America.

2 The Tribunal was satisfied that there were arrangements for the management of the woman's property in Texas through orders of a Texas court exercising protective jurisdiction for persons with disability and that there remained no property in Western Australia requiring administration by the Public Trustee.

3 In relation to the guardianship order, although the Tribunal affirmed that it had jurisdiction to make a guardianship order for a person domiciled but not resident in Western Australia, it found that there was no need for a guardian. The woman was appropriately accommodated in a unit for care of persons with Alzheimer's dementia and the court in Texas had appointed a guardian ad litem to monitor her care.

4 Since formal arrangements for both the financial and personal management of the woman's affairs were in place in Texas where she lived, there was no longer any need for the appointment of a guardian or an administrator in Western Australia.

The Applications

5 These reasons relate to reviews of plenary guardianship and administration orders in place for Mrs NCK (the represented person). As in all matters under the Guardianship and Administration Act 1990 (the Act), any identifying details will be anonymised in these published reasons to protect the privacy of the represented person.

6 There are three matters before the Tribunal; a review under s 84 of the Act of an administration order which appoints the Public Trustee as plenary administrator; a review under s 84 of the Act of an order which appoints the Public Advocate as plenary guardian and an application under s 86 of the Act for review of the guardianship order by the son of the represented person, GE, who proposes himself as guardian.

(Page 4)

7 Although there was no formal application under s 87 of the Act for leave to apply for review lodged by GE, leave was granted in the hearing and the review proceeded and his application was dealt with at the same time as the periodic reviews.

8 The review hearing was attended by GE (by telephone), a representative of the Public Trustee, the delegated guardian of the Public Advocate, friends of the represented person, MC, JC, HM, and IR. Written submissions were invited by the Tribunal and received from the guardian ad item, Mr Kevin Kennedy, and from Ms Lacey P Whitten, attorney for the spouse, both in Texas.

Background

9 The history of this matter is set out in the reasons for decision of the Guardianship and Administration Board (the Board), Re NCK Application for Review of Guardianship order, unreported decision of the Board delivered 9 July 2004 (Ms Felicity Child, Member) and Re NCK Application to Full Board for Review of a Determination of Board for Appointment of Guardian, unreported decision of the Full Board delivered on 27 October 2004 (Hon Justice ML Barker presiding, Ms J Stanton, Ms H Leslie, Members) which confirmed the order on review.

10 The jurisdiction and functions of the Board were absorbed by the State Administrative Tribunal from 24 January 2005.

11 By way of background the orders appointing the Public Trustee as plenary administrator and Public Advocate as plenary guardian now under review, were made in the context of evidence before the Board at that time of the removal of the represented person from Western Australia by her spouse, Mr EK (the spouse), in contravention of an order of the Board which had appointed the Public Advocate as her guardian to determine where she should live and had ordered the delivery up of her passport to the Public Advocate.

12 At the hearing in May 2004, following which the Public Advocate was appointed plenary guardian and the Public Trustee appointed plenary administrator, the Board also had evidence before it of the apparent stripping of the major asset of the represented person, by the deposit of proceeds of sale of the house registered in her name alone into a bank account held in the sole name of the spouse in the United States.

13 The original appointment of the Public Advocate as limited guardian was made following a hearing in April 2004 (the first hearing) of an

(Page 5)

application by the spouse for his appointment as guardian. In that matter, the Board determined that an independent guardian should be appointed for the represented person to make the decision as to where she should live. The Board considered that an independent guardian needed to consider the care arrangements proposed by the spouse for the represented person in Texas and whether the represented person should be removed from her familiar social and family environment, including her lifelong friends, many of whom attended that hearing.

14 There was also some doubt expressed by the Public Advocate's representative at the first hearing about the financial arrangements for the care proposals and whether they were equitable and in the best interests of the represented person.

15 At the first hearing the spouse, through counsel, consented to the appointment of the Public Advocate as guardian and gave assurances of his willingness to work with that guardian. He also gave evidence regarding the way in which assets of the represented person were held. The spouse raised the issue of his financial contribution to the assets, including the house property held in the name of the represented person alone and was told at that hearing that the property interests of the represented person could and would not be varied by the Board.

16 As was submitted by GE at the review hearing, the Tribunal accepts that the spouse acted in a deceptive manner in the removal of the represented person from Western Australia and misrepresented his position to the Board, to the appointed guardian and to his own solicitor, including the matter of the existence of another passport on which the represented person could, and in fact did, travel.

17 The guardian had, at that time, just prior to the removal of the represented person from Western Australia, negotiated an extension of time for the payment of ingoing fee to the proposed facility in Texas until the appropriateness of that move for the represented person could be assessed by the guardian.

18 It was the view of the Board, and it remains the view of the Tribunal, that there was no justification for the manner of the removal of the represented person by the spouse: her travel in her condition accompanied only by an aged relative and the failure by the spouse to acknowledge close and supportive relationships not even, it seems, to allow her to make proper goodbyes.

(Page 6)

19 GE submitted at the review hearing that there remains a doubt in his mind about the motivations of the spouse for the removal of the represented person from Western Australia. GE submits that the spouse only made the applications, before the Probate Court in Texas for the appointment of a guardian and administrator for the represented person, (the equivalent terminology being "guardian of the person" and "guardian of the estate") because the Public Trustee of Western Australia had frozen funds both in Western Australia and the United States following the appointment of the Public Trustee as plenary administrator. The Board had arranged the orders to be extracted urgently following the hearing to enable the Public Trustee to take whatever steps were appropriate and possible to secure the represented person's assets and to protect her interests. In the submission of GE, had the funds not been frozen it is likely that no applications would have been made by the spouse in Texas and therefore no scrutiny of his actions in respect of the represented person.

20 The applications were made however, and following those applications, final orders were made in Probate Court No 1, Bexar County, Texas on 14 October 2004 appointing a guardian of the person and of the estate for the represented person. A copy of the order of the court was before the Tribunal.

21 The spouse was appointed guardian of the person and the Broadway National Bank was appointed guardian of the estate.

22 The represented person (or ward, in the language of that jurisdiction) was said to retain the rights to determine her residence and the right to consent to medical, dental, ophthalmological, psychological and psychiatric treatment and for the disclosure of medical records.

23 It was further ordered by the court that the spouse report any major events or decisions including, but not limited to hospitalisations, surgeries, medical emergencies, changes in medication regime regarding the ward to Kevin P Kennedy, the guardian ad litem.

24 The guardian ad litem was appointed for an indefinite term, subject to further orders of the court, and ordered to visit the ward every two weeks and report to the court the status of the ward every month. The guardian ad litem was ordered to make all information concerning the ward available to GE and his attorney.

(Page 7)

25 The guardian of the person was directed to file a report on the condition and well-being of the ward within 12 months and 60 days after the date of the order and thereafter at 12 month intervals.

26 The guardian of the estate was directed to file an annual accounting within 12 months and 60 days of the order, and thereafter at 12 monthly intervals.

27 The spouse was required to give an oath to the Clerk of the Court and upon the taking of that oath, Letters of Guardianship were to be issued to him. He was required to lodge a bond for the amount of $11 000.

28 Having noted this background for the record, the purpose of the present review hearing is to review the orders in place for the represented person made in Western Australia.

29 On review of guardianship and administration orders, the Tribunal must be satisfied that the represented person is still a person for whom orders may be made, that is, she remains a person for whom findings of incapacity can be made under s 43(b) and s 64(1)(a) of the Act and that she remains in need of a guardian or an administrator, and that there is no other less restrictive means of meeting her needs other than by means of orders, (s 4(2)(c)).

Capacity

30 Findings regarding the incapacity of the represented person in respect of the spheres of personal health care, living situation and her financial affairs were made following the first hearing in April 2004. Those findings were based on the written evidence of Dr B Viera, a geriatrician who had assessed the represented person and reports of other health care professionals. A further medical report was before the Tribunal for the review, prepared by Dr Colleen Kennedy in the United States for the purposes of the Probate Court proceedings there.

31 While there is no new medical evidence before the Tribunal on this review, the represented person had at the first hearing a diagnosis of Alzheimer's type dementia, which is a progressive condition.

32 The Public Advocate submits, and the Tribunal accepts, that the represented person remains a person for whom orders can be made and no issue is taken with this by any person.

(Page 8)

33 The legislation requires at s 43(1)(c) and s 64(1)(b), that even where the represented person has an incapacity, there must be a need for orders to be made.

Need – administration

34 The order which appointed the Public Trustee as administrator was reviewed in February 2005, and the Public Trustee was directed at that time to transfer the balance of funds of the represented person, then held in the Common Fund to the Probate Court in Bexar, Texas. This order was made because the Tribunal was satisfied that protective measures were in place for the management of her property in her interests.

35 The order made by the court for the appointment of a guardian of the estate in place in Texas, has many of the attributes of an administration order in this jurisdiction in that it requires oversight by the court and there are reporting obligations on the guardian of the estate. The Tribunal makes no finding regarding the alleged motivations of the spouse for bringing the applications before the court in Texas, which caused this order to be made. The applications were brought and the court made orders, and it is the current position that is relevant to the question now before the Tribunal of the need of the represented person for an administration order in Western Australia.

36 It is noted in passing that the spouse is in breach of the order of the Board, dated 5 May 2004, by which the Public Trustee was appointed administrator and in which the spouse was ordered to file final accounts for the period of his administration. The recent changes to the Act provide that this issue is now a matter for the Public Trustee. The letter before the Tribunal, to the Acting Public Trustee from one of his staff, recommends the closure of the file because of the impracticability of the pursuit of any action to enforce compliance with the obligations the spouse undertook, when he consented to his appointment as administrator for the represented person.

37 The evidence on review of the administration order from the representative of the Public Trustee, is that all property and funds of the represented person have been transferred to Texas and there are now no funds or property remaining in Western Australia. The representative of the Public Trustee submitted there is nothing to administer and recommended that the authority of the Public Trustee be revoked. No issue was taken with this, although GE expressed his concern during the hearing that no recommendation was made by the Public Trustee on the transfer of the funds to Texas regarding the distribution of those funds.

(Page 9)

Guardianship

38 The Public Advocate, in her written and oral submissions before the Tribunal, confirms that the Public Advocate has maintained a liaison role with the guardian adlitem to monitor the situation of the represented person since her removal to Texas. There have been two issues of concern: the first being the transfer of the represented person to residential care at Freedom House, and the second her adjustment to that care. The delegated guardian acknowledged the move to alternate care had been anticipated at the first hearing before the Board, and she stated that she understood the placement at Freedom House to have followed a professional assessment of the represented person's care needs. In relation to the adjustment of the represented person to the placement, the guardian reported that initial reports suggested that the represented person was not happy at Freedom House, not compatible with other residents and not appropriately placed. She noted that a paid carer has been engaged to provide a regular recreational outing for the represented person and that the spouse has maintained contact, visiting the represented person twice per week.

39 Although the Public Advocate supports the application of GE for his appointment as guardian, and acknowledges his concerns about possible limitation on his contact with his mother by the spouse in his role as guardian of the person, she questioned whether there was a need for further order in Western Australia.

40 The submission of GE is that he wishes the guardianship of his mother by the Public Advocate to continue, but that if the Public Advocate does not continue in the role, then he is prepared to be appointed. He, in his detailed statement in the hearing, took issue with much of the material in the submissions of the guardian ad litem and attorney for the spouse before the Tribunal. His primary concern appears to be the failure to recognise what he sees as the inappropriate conduct of the spouse in the removal of his mother from Australia and the submission by the attorney, for the spouse, that this was motivated by concern for the care of the represented person.

41 Relevant to the review, GE also submits that the represented person is unhappy in the accommodation in which she now lives and is depressed and lacking stimulation. He submits that there is a continuing "duty of care" by the Tribunal and the Public Advocate to continue the role of a guardian in the life of the represented person. He is concerned that should the spouse of the represented person die before the represented person,

(Page 10)

that the existence of a guardian in Western Australia will provide a mechanism by which her needs could be addressed.

42 The submission by the attorney for the spouse includes the following statement:

"[The represented person] has been moved into Freedom House, a unit for more advanced Alzheimer's patients. In this very well staffed, well run, well equipped facility in fact [sic] one of the best facilities in the United States. She will have life-time medical care and will always be assured of her residence no matter what her financial situation. There are financial accountings filed every year and any unusual expenditure must get prior court approval. In addition, any substantial change or action taken by the guardians gets court approval, thus the [represented person] is well provided for and her personal and financial interests are being properly looked after."

43 A report of the guardian ad litem was before the Tribunal. The following is extracted from his report:

"I have been serving as guardian ad litem for [the represented person] in connection with the guardianship proceedings in the Probate Court here in San Antonio. Since September 2004 I have visited with [the represented person] every two weeks. [The represented person] currently resides in Freedom House, the Alzheimer's facility located at the Air Force Village II retirement facility in San Antonio. In my most recent visits with her, I have found her to be satisfied with the living arrangements at Freedom House and with her care. My observation is that her care is exceptional."

44 The report goes on to say that:

"The visitor log reflects that [the spouse] visits his wife most days each week. …

It appears to me that [the represented person] is adequately protected by the guardianship here in San Antonio and her residency in Freedom House. …

To the best of my knowledge, [the spouse] has complied with the Court Order appointing him as guardian of [the represented person]. …

(Page 11)

It is my opinion that [the spouse] made arrangements to ensure [the represented person's] safety by placing her in Freedom House on the recommendation of [the represented person's] doctors."

45 The guardian ad litem also confirms that there is a current arrangement for a skilled companion to take the represented person on outings. His report concludes:

"I do not know whether there is any real benefit to [the represented person] to continue her guardianship in Australia. I do know that she is safe, content and receiving the best care possible. Her funds are being managed by Broadway National Bank under the supervision of the Probate Court. She receives and will continue to receive medical care without cost to her."

46 Other evidence given at the hearing in relation to the current living situation of the represented person by MC, a friend of the represented person, supported the position of the guardian ad litem. MC, who had recently visited the represented person in Texas with her husband JC, and had spent time with her at the facility in which she now lives, stated that she was surprised and delighted with the quality of the facility. She said that the represented person did not recognise her consistently during the visit, but stated she has no doubt that the represented person is happy and has her personal belongings around her. She is satisfied with the care and attention that the represented person is receiving.

47 Evidence from another friend, IR, at the hearing, is that when she telephones the represented person once each month the represented person does not appear to her to be happy with her surroundings.

48 GE stated that he spoke to his mother every other day and she is very indifferent to her surroundings, accepting rather than being happy with her position.

49 The transcript of the proceedings before the Texas court on 21 July 2005, noted appearances from attorneys for the spouse, the son, GE, the guardian ad litem and the attorney ad litem. The transcript covers the matters dealing with the determination of the ownership of moneys sent by the Public Trustee to the court.

50 As noted above, it is not clear from the transcript what evidence was before the court in relation to the determination of the interests of the represented person in her estate. The transcript is relevant to this review

(Page 12)

because it provides some information about the arrangements in place for the represented person. At page 15 of the transcript:
"The court has put in place orders that if there are any substantial changes with [the represented person] that [the spouse] has to report that to the court. Wendy Hazel at Air Force Village, I think has met us all, has talked to GE on the phone, I believe she knows all the parties involved. If something does change with her [the represented person] I think that it would be brought to someone's attention very quickly."

51 The transcript refers to regular communication between GE and the guardian of the estate. The representative of the guardian of the estate states that at p 17 of the transcript:

"We could commit to sending a copy of the guardian of the estate's annual accounting and the guardian of the person's annual accounting to [GE] in Australia."

Findings

52 Having considered the information about the current circumstances of the represented person and given that she is now subject to the protective scheme for persons with impaired capacity operating in Texas where she is resident, both the guardianship order and the administration order made in Western Australia can now be revoked.

53 In respect of the administration order, there are orders in place in Texas for the management of the represented person's financial affairs by an independent guardian of her estate, under the ultimate supervision of the Probate Court. The guardian of the estate must account to the court each year. In proceedings before the court, the guardian of the estate indicated that information about the affairs of the represented person could be sent to GE. This will enable him to reassure himself that his mother's financial interests are being dealt with appropriately.

54 Section 67(1) of the Act provides that an order under s 64(1) of the Act (for the appointment of an administrator) "is limited to the person's estate within Western Australia". The Public Trustee reports that no property of the represented person remains in Western Australia.

55 In relation to the guardianship order, it is confirmed that the represented person is a person for whom a guardianship order could be made, both in the sense that the elements of s 43(1) have been made out

(Page 13)

and in relation to the jurisdiction of the Tribunal, to make such an order for a non resident.

56 The jurisdiction issue was dealt with in the reasons for the decision of the Full Board (Re NCK Application for Review of Guardianship order, unreported decision of the Board delivered 9 July 2004 (Ms Felicity Child, Member)) on the basis that the represented person was considered to be domiciled in Australia. The Full Board said at [42]:

"Once the view is taken, as we accept is the case here, that the represented person's country of domicile is Australia and that all material times prior to her departure from Australia she was resident in Western Australia, and that she had not 'abandoned' her domicile of choice, in effect because she was unable to do so, then the power of the Board to make orders concerning the guardianship of the represented person would seem to be undoubted. Whether any guardianship order should be made is, of course, a different matter that must depend on all the circumstances before the Board at material times."

57 In the view of the Full Board, in the appropriate case the guardian might make representations on behalf of the represented person to a range of governmental authorities, including those in the country of domicile and in the country of residence. The Full Board noted that representation on these matters might also possibly be made, as in Re S [HospitalPatient: Foreign Curator, 1996, Fam 23], to a court in another country dealing with protection issue in respect of the person. The Full Board in Re NCK (supra) referred with approval to the reasons for decision of the Full Board in Re LGW; Review of Guardianship Order, unreported decision of the Board delivered 7 May 2004 (Deputy President Pamela Eldred (presiding) and Ms Hannah Leslie and Ms Felicity Child, Members) that the role of a guardian extends beyond a specific decision-making function. The Full Board said:

"It follows that whether a person is in need of a guardian is the ultimate touchstone in relation to which the Board must decide that the order should be made. The concept of need is not to be determined by reference to whether particular 'authoritative' decisions are required on behalf of a person, but whether there is, or may be, a need for a guardian to intervene, in a more generalised sense, in the affairs of that person: see Re Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) 320, Re LGW (supra) at pp 4 – 10."

(Page 14)

58 At the time the Full Board heard and determined the application for review on 10 August 2004, the represented person was subject to provisional orders for guardianship in the court in Texas and those proceedings were before the court and yet to be finalised. The Full Board clearly saw, at that time, a role for a guardian to intervene in the affairs of the represented person.

59 The current position of the represented person on review, is that she is now subject to orders of the Probate Court in Texas. The appointment of the spouse as guardian of the person is a limited one and is under supervision of the court. The represented person lives in accommodation reported to be appropriate to meet her increasing care needs. The guardian ad litem has been appointed until further order of the court. It appears that staff of the facility where the represented person lives, play a monitoring and liaison role. There has been regular telephone contact between GE and the represented person, and it seems from the information before the Tribunal that there is no limitation placed on the contact the represented person has with others. The role played by GE in the life of his mother has been recognised in proceedings before the court and it appears that he remains in contact with both the guardian of the estate and the guardian ad litem. Having considered all the current circumstances of the represented person and the protective measures now in place to ensure her best interests are met, there appears no useful role for a guardian appointed in Western Australia to play in the life of the represented person.

60 While the jurisdiction of the Board to continue the guardianship order for a non resident remains, there is, in the view of the Tribunal no need established to satisfy s 43(1)(c) of the Act for the continuation of a guardianship order and therefore, the order appointing the Public Advocate is revoked and the application by GE for his appointment is dismissed.

Orders

1. The administration order dated 11 February 2005 is revoked.

2. The guardianship order dated 10 August 2005 is revoked.

3. The application by GE for review of the guardianship order is dismissed.

(Page 15)

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.







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MS F CHILD, MEMBER