PC
[2021] WASAT 72
•17 MAY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PC [2021] WASAT 72
MEMBER: MR J MANSVELD, SENIOR MEMBER
HEARD: 17 MARCH 2021
DELIVERED : 17 MARCH 2021
PUBLISHED : 17 MAY 2021
FILE NO/S: GAA 5133 of 2020
GAA 899 of 2021
PC
Represented Person
Catchwords:
Guardianship and administration - Capacity - Need for orders - Family discord - Allegations of abuse and exploitation - Represented person unable to mediate his family circumstances in his best interests - Need for independent appointments
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43, s 64, s 84, s 86, Pt 5, Pt 6, Pt 7
Result:
Guardianship and administration orders made
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:
Introduction
PC is 77 years of age. He has been married to his spouse, WL since May 2007. WL has an adult daughter, KC.
PC first came to the attention of the Tribunal in 2018 when guardianship and administration applications were made by an older adult mental health service. He was in hospital when the applications were filed.
The applications were made pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
A report from a consultant psychiatrist at the time stated that PC had been diagnosed with an adjustment disorder, alcohol dependence and dementia (of alcohol and vascular aetiology).
It was alleged that PC had stated he did not want to return home to live with WL and wanted to separate their marital assets.
On 2 March 2018 the Tribunal made guardianship and administration orders (March 2018 orders).
The Public Trustee was appointed the plenary administrator of PC's estate with a direction to investigate whether PC's wishes and/or needs in his best interests, to commence property settlement proceedings in the Family Court or any related matters.
The Public Advocate was appointed limited guardian and given authority to decide PC's living arrangements, to decide what services he should receive, to consent to his medical treatment and to act as next friend or guardian ad litem for non-estate matters.
An enduring power of guardianship that PC had made in February 2018 appointing WL as his enduring guardian was revoked.
The March 2018 orders were set to be reviewed in 12 months.
PC and WL sought review of the March 2018 orders by the Full Tribunal pursuant to s 17A of the GA Act. The Full Tribunal must be constituted by the President or a Deputy President of the Tribunal and two other members and undertakes a de novo review of the determinations of a single member.
On 7 May 2018 the Full Tribunal confirmed the administration order of the March 2018 orders and revoked the guardianship order (2018 administration order).
The 2018 administration order was set to be reviewed by 7 May 2020.
In November 2018, PC and WL sought review of the 2018 administration order under s 86 of the GA Act.
On 14 March 2019 the Tribunal confirmed the 2018 administration order with a review by 14 March 2021 (March 2019 administration order).
The current proceeding
On 4 March 2021 an application for the appointment of a guardian (guardianship application) was made by a hospital treating team (applicant). At the time PC was an inpatient.
The March 2019 administration order was due to be reviewed under s 84 of the GA Act (administration review).
Both matters were heard on 17 March 2021.
Present at the hearing were:
•PC (still an inpatient at the time);
•WL;
•KC;
•LC (friend of WL);
•representing the applicant, Dr A (consultant psychiatrist) and AM and JB, allied health workers at the hospital;
•KS (legal officer with the Public Trustee); and
•LG, investigator with the Public Advocate.
I decided to confirm the March 2019 administration order and appoint the Public Advocate as PC's guardian to make decisions concerning his accommodation upon discharge from hospital, to make his treatment decisions, to decide the services to which he should have access, and to act as next friend and guardian ad litem in nonestate matters.
The administration order was set for review in five years and the guardianship order in 12 months.
I said that I would give my reasons at a later time. These are the reasons.
Relevant legislation
Guardianship and administration matters are considered under Pt 5, Pt 6 and Pt 7 of the GA Act.
The principles to be observed by the Tribunal are set out in s 4 of the GA Act.
The primary concern of the Tribunal is the best interests of PC.
In considering the applications, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of PC as expressed, in whatever manner at the time, or as gathered from his previous actions.
PC is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal.
The Tribunal cannot consider appointing a guardian for PC unless it is satisfied on the evidence that he is incapable of looking after his own health and safety; is unable to make reasonable judgments 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.
The Tribunal cannot consider appointing an administrator of the estate of PC unless it is satisfied on the evidence that by reason of a mental disability, he is unable to make reasonable judgments in respect of matters relating to all or any part of his estate.
Mental disability is defined in the GA Act to include an intellectual disability, psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to PC, the Tribunal must further determine whether he is in need of guardianship and administration orders. If the needs of PC can be met in a manner less restrictive of his freedom of decision and action then orders should not be made.
If the Tribunal decides that PC is in need of guardianship and administration orders it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of PC, a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on PC.
When reviewing guardianship and administration orders the Tribunal can relevantly confirm the orders, revoke the orders and substitute new orders for them or amend the orders.
The question of PC's capacity
In making the March 2019 administration order, the Tribunal found that PC was unable by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate.
The most recent specialist medical reports which express an opinion on PC's capacity are those of Dr PT, geriatrician dated 26 February 2021 and Dr A, dated 12 March 2021 who also gave oral evidence.
Dr PT assessed PC on 26 February 2021 with the assistance of an occupational therapist. The report noted that PC had a previous diagnosis of alcohol and vascular dementia. The current assessment which included a screening test score of 18/30 showed that PC had impaired executive functioning. He was considered unable to plan, sequence and problemsolve demonstrated by his intention of leaving hospital but being unable to explain where he would go.
PC was found to have a lack of knowledge of how his financial affairs were being managed.
The opinion of Dr PT was that PC was unable to make reasonable decisions concerning personal and financial matters. He was also considered to be incapable of making an enduring power of attorney and enduring power of guardianship.
Dr A, who has known PC since December 2017, concurred with Dr PT's opinion. In her oral evidence she confirmed the diagnosis of dementia. Dr A said that because of the vascular nature of the dementia, PC's memory was such that he could still recognise people and remember events. His impairment was in executive functioning which incorporated planning, organising tasks and making decisions. He was also prone to impulsive decision-making.
Dr A considered PC to lack insight into his care and medical needs. She said that PC's dementia is a degenerative condition so he will worsen over time.
WL said that she did not agree with Dr A's opinion. She was of the view that PC could make his own decisions however later in her evidence qualified that with the comment 'some can, some no' (ts 24, 17 March 2021). She believed nonetheless that PC could make his own decision about where he would live upon his discharge from hospital.
WL said that PC could only manage small amounts of money.
The Public Advocate considered that PC's lack of insight into his needs exposed him to risk.
PC stated that he could look after himself once he left hospital. He would not need any support. He said that he could also manage his own financial affairs as long as he was able to regain control of his Centrelink age pension.
Disposition of capacity
In considering the evidence I am satisfied that PC is a person in respect of whom guardianship and administration orders can be made.
PC has a neurodegenerative condition which has a significant impact on his ability to make reasonable judgments about personal and financial matters.
The medical evidence is clear and is consistent with findings made by the Tribunal from March 2018 and is supported by the Public Advocate. I accept the evidence of Dr PT and Dr A as specialist practitioners in the area of dementia and its effect on decision-making.
I do not accept the views of PC and WL. Because of PC's dementia, he is unable to appreciate his deficits in judgment and decisionmaking demonstrated in his contention that he has no need for any assistance once discharged from hospital.
WL's evidence is somewhat ambivalent and in my view displays a lack of understanding of the serious nature of PC's diagnosis and prognosis.
I am satisfied and declare that PC is incapable of protecting his own health and safety, is in need of oversight and care in the interests of his own health and safety and is unable to make reasonable judgments concerning his personal and financial affairs.
Guardianship application
PC was admitted to hospital on 23 February 2021. On a discharge summary before the Tribunal (PC was discharged from an acute hospital to the current acute hospital), it was noted that PC had presented to the emergency department following referral by his general practitioner for low mood and alleged violence from his family. PC reported concerns regarding physical and financial abuse. PC described WL as demanding, controlling and that she had assaulted him multiple times.
It is instructive to note that an earlier discharge summary before the Tribunal for the period of hospitalisation of PC from 14 December 2017 to 26 February 2018 reported similar concerns. In that admission, PC had been admitted for management of depressive episodes and suicidal ideation in the context of lifelong alcohol abuse and multiple psychosocial stressors. At that time, PC also described WL as controlling, demanding and controlling of his finances. He alleged that WL and KC had physically abused him when having a disagreement.
In the guardianship application it was stated that WL had attempted to convince PC to discharge against medical advice and that PC did at one time attempt to abscond from hospital.
It is the view of the applicant that it is not safe for PC to return to his home.
AM in her social work report stated that PC had declined any contact with WL. He also declined sharing any information with her and did not want WL involved in his discharge planning. WL was reported to continue to seek contact which had caused PC anxiety and distress.
Both AM and Dr A stated that PC had expressed his concerns regarding his home environment directly and consistently to them. Dr A said the treating team from the initial acute hospital had not detected evidence of physical abuse.
AM stated that PC is completely dependent on WL.
PC is ready to be discharged from hospital.
In her evidence WL stated that she continues to want PC to return home to live with her. She said that the arguments between them have been centred on his excessive drinking and his temper, however they no longer argue as they did in the past.
She said that she does everything for PC and maintained a clean home environment. She met the costs of food and PC's cigarettes.
WL said that she continued to love PC and has no wish to divorce him. She submitted that if the Tribunal found PC to be in need of a guardian she should be appointed in that role.
WL said that in a phone contact with PC he had asked to return to their home.
KC stated that she had experience of the arguments between WL and PC caused by PC's excessive drinking which WL had tried to control and which upset PC.
KC submitted that PC's family know him best and that in the circumstances she would also propose to be appointed guardian should that be needed.
LC said that she had tried to assist WL in having contact with PC in hospital but had been blocked by hospital staff without explanation. This had distressed WL because she had not been made aware of PC's circumstances.
In his oral evidence, PC initially stated that he wanted to be discharged to a property jointly owned by him and WL (and which was currently tenanted). He said that he would live there on his own and that he did not want to return to live with WL.
When it was put to him that the property in which he wished to live was tenanted and in those circumstances where would he otherwise live, he said he would live with WL because he would have to do that. PC said that if he had money he would rent a unit somewhere.
When asked what he would do if he returned to live with WL and it was not successful, he said 'I will come back to you lot' (ts 26, 17 March 2021).
Later in his evidence PC responded to an impassioned plea by WL by stating that if he regained control of his pension income then he would return to live with WL.
LG said that she had spoken with PC in the week of the hearing and he confirmed at that time that he did not wish to resume his relationship with WL. She confirmed the position of WL that she was very keen to have PC return home.
Administration review
In a written report from February 2021, the administrator stated that PC and WL jointly own two rental properties. WL managed the properties and had advised of the rental income received. WL had told the administrator that the rental income was used to pay the mortgage and expenses associated with the properties. Both properties are mortgaged.
The administrator stated that WL had advised that her income consists of a carers allowance for PC and that she also received rental income from leasing rooms in another property she owns.
PC is in receipt of the Centrelink age pension and a UK pension. The report from the administrator indicated that PC's income exceeded his expenses and that WL had advised that she paid for all of their joint expenses.
KS, as the administrator's legal officer, reported as follows. She said that at the time of the making of the 2018 administration order, PC had reportedly advised the hospital treating team that he wanted to leave WL. However, after discharge from hospital PC had returned to live with WL and advised the administrator that he wanted to be left alone and did not want to leave WL.
In about May 2019, PC left WL and went to reside with a friend. Subsequently PC allowed the administrator to commence family law financial settlement on his behalf. The matter was referred to the administrator's legal section in June 2019. In September 2019, PC returned to live with WL and indicated that he did not want to separate from her.
KS stated that having regard to the circumstances of PC over time the administrator decided not to pursue family law property settlement or any claims regarding alleged financial abuse or misappropriation against WL whilst PC and WL remained married and living together in a marital relationship.
In his evidence PC said that WL had sold his motor vehicle so that he no longer had a vehicle at his disposal. He also said that he believed that one of the jointly owned rental properties was his property and that WL was taking the rental income.
When advised that he receives an allowance from the administrator, PC responded that he did not get anything and that the allowance went to WL.
PC said on a number of occasions in his evidence that all he wished for was to regain control of his pension and that would make him happy.
WL said that she is not opposed to the Public Trustee remaining as PC's administrator.
Disposition of the guardianship application and the administration review
I am satisfied on the evidence and I declare that PC is in need of guardianship and administration orders (s 43 and s 64 of the GA Act). I have determined that it is in PC's best interests that the Public Advocate be appointed as guardian and that the Public Trustee be reappointed as the administrator of his estate. I do so for the following reasons.
It is clear enough on the evidence that PC and WL have a volatile relationship punctuated since at least 2018 by PC leaving the marital home and seeking action for personal and financial separation.
It is also the case that PC again since at least 2018, has returned to live with WL.
The current situation bears some resemblance to what was before the Tribunal in 2018. The ongoing difficulty is PC's lack of capacity to fully understand the implications of the actions he takes.
I have no doubt that the current circumstances which has included an admission to hospital for in part social reasons, PC genuinely expresses his concerns as to his sense of powerlessness in his personal and financial life.
Because of his incapacity, PC is unable to mediate those circumstances in his own best interests. His evidence demonstrates that he continues to vacillate as to his decision to separate from WL when faced with her insistence.
It is not for the Tribunal to determine the cause of PC's decision to leave the family home and seek separation from WL. The concern of the Tribunal is to decide what is in PC's current best interests in the difficult situation he finds himself in.
Because of his inability to negotiate his current situation in part caused by his own actions, PC is in need of a guardian to be in a position to determine in his best interests what should occur upon his discharge from hospital which is imminent.
It is not sufficient to say that in the past he has returned to live with WL and therefore the Tribunal should allow the status quo on the basis of PC's previous actions.
PC is a vulnerable person suffering from a neurodegenerative condition which does not permit him to fully articulate his best interests and to explore the possibilities that exist for the remainder of his life.
The appointment of a guardian to deal with the issues at hand is required as a protective means by which those possibilities can be investigated and determined.
I am unable to find both WL and KC suitable for appointment as PC's guardian for the very reason that they are inextricably enmeshed in PC's current predicament. WL in particular has her own interests to protect.
Even if I accept that WL and KC are genuine in the positions that they hold, they have already foreshadowed that PC should return to the marital home and appear not to give sufficient weight to his protests at his living circumstances.
PC requires someone independent of the marital and family discord to make decisions in his best interests and take into account his views and wishes.
The areas in PC's personal life which in my view require the appointment of the Public Advocate as guardian are those concerning his future accommodation, the services to which he should have access, his ongoing medical treatment and next friend and guardian ad litem functions to allow for the possibility that marital separation might ultimately occur.
Aside from PC himself, there appears to be no dispute that the Public Trustee should remain as the administrator of his estate at and I will so order.
The direction in the March 2019 administration order is no longer required as the Public Trustee is well aware of PC's circumstances. I will amend the March 2019 order accordingly.
Given past events, I have decided to set a review of the guardianship order for 12 months and a review of the administration order for the maximum period available under s 84 of the GA Act, that being five years.
Orders
GAA 5133 of 2020
The Tribunal declares that the represented person, PC is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)in need of an administrator of his estate.
The Tribunal orders:
Administration
The administration order dated 14 March 2019 is amended so that it now reads:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administration order is to be reviewed by 17 March 2026.
GAA 899 of 2021
The Tribunal declares that the represented person, PC is:
(a)incapable of looking after his own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to his person;
(c)in need of oversight, care or control in the interests of his own health and safety; and
(d)in need of a guardian.
The Tribunal orders:
Guardianship
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine the services to which the represented person should have access;
(e)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person; and
(f)as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.The guardianship order is to be reviewed by 17 March 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (SENIOR MEMBER)
17 MAY 2021
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