PG and KRL

[2010] WASAT 30

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   PG and KRL [2010] WASAT 30

MEMBER:   MS F CHILD (MEMBER)

HEARD:   13 NOVEMBER 2009

DELIVERED          :   25 FEBRUARY 2010

FILE NO/S:   GAA 2622 of 2009

GAA 2621 of 2009

BETWEEN:   PG

Applicant

AND

KRL
Represented Person

Catchwords:

Guardianship and administration ­ Application for the appointment of a guardian and an administrator - Conflict between family and friends of the represented person - Diagnosis of dementia - Existing enduring power of attorney - Wishes of the represented person - Need for independent decision­maker to decide where the represented person should live

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44(2)
State Administrative Tribunal Act 2004 (WA), s 76

Result:

Public Advocate appointed limited guardian
Application for the appointment of an administrator dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr R McDonald

Represented Person       :     Self-represented

Solicitors:

Applicant:     William Hughes

Represented Person       :     Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The Public Advocate was appointed the limited guardian of an elderly woman whose capacity to make personal decisions was impaired.

2. The Tribunal decided that an independent guardian was needed because, although the woman had a supportive network, conflict had arisen among her close friends and the donees of her enduring power of attorney as to what decisions were appropriate for her.  Some of the friends disputed that the woman's capacity to make decisions was impaired.  The conflict which had arisen was distressing to her and, in the judgment of the Tribunal, she required an independent guardian to advocate for her interests in any decision made about where she was to live.

3. The application before the Tribunal for the appointment of an administrator was dismissed.  The woman had executed an enduring power of attorney in 2006 and there was no evidence this was not working effectively to manage her finances.  The Tribunal decided there was no need for an administration order to be made.

The applications

1. These reasons relate to determinations of the Tribunal of applications filed in October 2009 regarding KRL (represented person).  An application for the appointment of a guardian for the represented person was submitted by PG, (applicant), who is her accountant and one of the donees of her enduring power of attorney (EPA).

2. The represented person is a widow, has no children, and her brothers and sisters reside outside Western Australia.  In March 2006, she appointed her accountant and a niece as the donees of her EPA.

3. The appointment of a guardian was said to be required for the represented person because she was in hospital and there was a need for decisions about medical treatment for her.

4. The application was treated as an application for the appointment of an administrator as well.  In the course of the submissions in respect of the application, it is clear that the applicant believed that the EPA made in favour of herself, and a niece of the represented person, should continue to operate.  No substantive issues were raised in relation to the management of the represented person's finances, and at the conclusion of the hearing, the application for the appointment of an administrator was dismissed as the Tribunal found that there was no need for the order to be made.

5. At the time of the hearing, the represented person was in a care­awaiting placement facility, having been discharged from hospital.  There was a disagreement as to whether the represented person should move into residential care or should return to her own home with support services.  It was reported that the represented person had expressed differing views about this issue to those within her network and a dispute had arisen between them, in particular, her friends and neighbours and the donees of her EPA.

6. The hearing of the applications was attended by the represented person, the applicant, her niece, friends and close supportive neighbours of the represented person, and representatives of the Public Advocate.  The Public Advocate had, at the request of the Tribunal, undertaken an investigation of the applications.  At the start of the hearing, at the request of the solicitor for the applicant, the Tribunal member spoke with the represented person, with only the Public Advocate's representatives present.

7. Brief oral reasons were delivered at the conclusion of the hearing and these written reasons are produced pursuant to s 76 of the State Administrative Tribunal Act 2004 (WA) at the request of the applicant.

Legislation

1. To appoint a guardian for the represented person, the Tribunal must be satisfied that the represented person is a person for whom such an order can be made.

2. Section 43 of the Guardianship and Administration Act 1990 (WA) (GA Act) provides that a guardian may be appointed for someone who is incapable of looking after their own health and safety, unable to make reasonable judgments in respect of matters relating to their person, or in need of oversight, care or control in the interests of their own health and safety, or for the protection of others and is in need of a guardian. These provisions are subject to s 4 of the GA Act which sets out the principles which the Tribunal must observe in all proceedings commenced under the GA Act.

3. The principles provide that the primary concern of the Tribunal must be the best interests of the represented person; that every person shall be presumed to be capable of looking after their own health and safety and of making reasonable judgments in respect of matters relating to their person, managing their own affairs and making reasonable judgments in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal.  The principles include that orders should not be made if the needs of the person in respect of whom the application had been made, could, in the opinion of the Tribunal, be met by means less restrictive of that person's freedom of decision and action.  Any order made should be in terms that impose the least restriction possible in the circumstances on the person's freedom of decision and action.  In considering any matter under the GA Act, the Tribunal is bound to attempt to ascertain the wishes of the person as expressed or gathered from that person's previous actions.

4. To determine the suitability of any proposed guardian, the desirability of preserving supportive relationships of the represented person, the compatibility of the proposed guardian with the represented person and any administrator of that person's estate, the wishes of the represented person and whether the proposed guardian will be able to perform the functions vested in them must be taken into account by the Tribunal (s 44(2) of the GA Act).

Evidence and material before the Tribunal

1. The represented person's general practitioner, Dr F, reported that the represented person had been a patient at his practice since 2002 and that in July 2009 she had fallen, fracturing her right hip, and had subsequently 'developed osteomyelitis of her left great toe as a result of arterial insufficiency'.  The doctor went on to say that:

   … [The represented person] recently underwent an amputation procedure at [deleted] Hospital … She also has advanced osteoarthritis of her knees.

   She is quite frail, prone to falls and has some memory and mild cognitive impairment as a result of dementia.  CT scanning of her brain shows an old occipital cerebrovascular accident.  I do not consider that she is fully capable of looking after her own health and safety.

   Earlier this year (the represented person) had considerable support from a neighbour as her self­care was not satisfactory.  The Aged Care Assessment Team attempted to organise a community assistance program but this was confounded by (the represented person) expressing interest initially then declining when the carers went to see her.  I suspect this is a result of her memory impairment.  I do not think she can reliably make judgements regarding her optimal care and safety.  She now requires hostel placement or alternatively 24 hour care at home.

   I believe she does need a guardian.

2. Dr H, a geriatrician, notes in a medical report dated 12 November 2009, that the represented person has 'impaired executive function and capacity to make informed decision'.  He states her condition is a 'progressive' one.

3. The professional evidence about the represented person's capacity was challenged by her friends, including Mr C, who says that when the represented person was in hospital for the surgery on her toe, he had spoken to Dr G, a surgeon, and he reported that the doctor's opinion had been that the represented person was able to make medical decisions.  Mr C commented that the represented person's general practitioner did not have a good relationship with the represented person and, as such, his assessment of her was disputed.  The report of Dr H was also challenged because it was said that he assessed the represented person following her hip operation when she had been given a general anaesthetic.  She had also been on a powerful antibiotic, morphine, and a mixture of other medications following the amputation of her toe.  Mr C's perception was that the represented person was perfectly normal and he had perfectly normal, lucid conversations with her.  He described her as always being a little indecisive as that was her nature.

4. Ms A, a friend and neighbour, reported a conversation that she had had with Dr W, a doctor who had briefly assessed the represented person at the hospital prior to the operation and who had said, 'If you are happy we'll go ahead with the operation to amputate the toe'.  The represented person had said she was, and Dr W had said he would send his therapist to reassess her.  There is no report of Dr W before the Tribunal, but the social worker from the hospital reported that:

   [The represented person] presents as being pleasantly confused with short­term memory loss.  A mini­mental state exam was conducted by the [name deleted] Hospital Occupational Therapist on 6/11/09; (the represented person) scoring 19/30 (23 or less denotes cognitive impairment).  Cognitive deficits were primarily noted in the area of recall.

5. The applicant noted that shortly after the amputation of the represented person's toe, there had been discussion about her discharge from hospital and she had been advised that it would be some weeks before the represented person would be well enough to return home.  The applicant had undertaken some investigation of options, including services at home and cleaning.  The applicant said that the represented person had been given the option of going home or going into a hostel.  She was told that if she went home, she would need '24/7' care.  The applicant reported that the represented person had declined to go home on that basis.

6. It was reported that an Aged Care Assessment, conducted in January 2009, had assessed the represented person as eligible for low level (or hostel level) residential care and for a community aged care package.  Her niece confirmed that while in hospital, the doctors had said that the represented person could return home with 24 hour care or else she should be in hostel care.

7. Although it was generally agreed by the participants in the hearing that the represented person did need some assistance to live at home, her reported decision not to return home was disputed by her friends and neighbours in their written submissions prior to the hearing and at the hearing itself.  The attention of the Tribunal was drawn to a statutory declaration made by the represented person on 29 October 2009, while still in hospital, that she wished to return to her home with services. 

8. The applicant states that in relation to consent to the amputation of the represented person's toe, she had varied in her views from day to day, on one day agreeing to the surgery and the next deciding that she did not want to go ahead with it.  In the end, the represented person is reported by the applicant to have asked her to make the decision for her and the applicant had signed the consent form at the hospital when requested to do so. 

9. The applicant says that in the past, the represented person asked her to make sure she was looked after into the future and she agreed to do so.  The niece said that when asked, the represented person had said she was happy to have the applicant as her guardian.

10. The representative of the Public Advocate (Public Advocate) submitted that the report of Dr H should be considered in light of his specialist qualifications, and the report of Dr F, in light of his personal contact with the represented person, and that based on that evidence, the represented person is a person for whom a guardianship order can be made.  The Public Advocate submitted that there was a need for an order to be made because of the 'pressure' the represented person was under in relation to the personal decisions in the context of a diagnosis of dementia, and a past history of 'oscillation' in making decisions.  The Public Advocate submitted that the functions in any guardianship order made should include authority to decide where the represented person should live and the represented person's access to services and medical treatment.  The Public Advocate submitted that medical treatment decision­making should be included in the functions given to the guardian as there may have been some misunderstanding that the attorneys had the power to make medical decisions on behalf of the represented person under the EPA, but that this was not correct. 

Wishes of the represented person

1. At the request of the solicitor for the applicant, the represented person was interviewed alone, with the Tribunal member and the representatives of the Public Advocate present. 

2. The represented person acknowledged her health difficulties, and when the medical evidence was put to her that her memory was not as good as it once was, she acknowledged this, saying, 'Of course this is what I have said to my niece.  We don't stand still'.  In relation to the hearing and the matters raised, in particular the decisions to be made about accommodation, the represented person said, 'I can't bear this business of argument and nonsense.  I say it is argument and nastiness'.  When it was said that everyone was very concerned for her, she responded, 'They have all been wonderfully kind and good, but they have twisted me and I don't know where I am'.  Later she said:

   I don't like being pushed around, told what to do ­ well, when I say 'told what to do', I don't mind being told, but I don't like it when people, you know, are a little bit yucky'.

3. The represented person would not indicate who was being a bit pushy with her.  Later, she said, 'I don't want to hurt my friends by saying something I shouldn't say or doing something.  I just want a quiet life for them and for me'.  In relation to the hearing, she said, 'Get it all over and done with.  It's sickening, but I don't like hurting people'.  Later on, she reiterated, 'People are very good.  They have done what they can.  I don't like hurting people'.  And later to the Tribunal member she said, 'So I just felt maybe I should leave it in your hands to do what you think the best'.  She found the facility in which she was staying unpleasantly noisy, but she had not complained.

Reasons of the Tribunal

1. Although the capacity evidence is challenged, the only direct medical evidence before the Tribunal is that of the reports of Dr H and Dr F, and their evidence is consistent that the represented person's capacity to make decisions about her person is impaired.

2. The challenge to the general practitioner's evidence is on the basis that the represented person had complained to her friend that her doctor did not properly appreciate her situation and treated her in a cursory manner.  However, Dr F is reported to have been the represented person's doctor for some years and, from the letter produced to the Tribunal, it is clear that he had given consideration to the personal circumstances of the represented person in relation to her care needs at home.  The evidence of the geriatrician, Dr H, that the represented person's executive functioning, her judgment, is impaired is also challenged by her friends.  Although it is accepted that the assessment by Dr H may have occurred at a time when the represented person was recovering from an acute illness, his evidence about the impairment of the represented person's capacity is considered in the light of his specialty (the assessment and care of elderly patients) and is the most recent evidence.  It is consistent with that of her long­term doctor and the reported findings of the assessment by the occupational therapist.  No other medical reports are put before the Tribunal.  The reported views of the surgeon and Dr W cannot be given much weight, especially considering the referral for, and subsequent occupational therapist's (OT) assessment, and the consent for, the amputation being sought from the attorney.

3. Based on the reports of Dr F and Dr H and the OT assessment which are before the Tribunal, I find that the represented person is a person who is in need of oversight and care in the interests of her own health and safety, and she is therefore a person for whom a guardianship order can be made.

4. The Tribunal accepts the submissions of the Public Advocate that the represented person is in need of a guardian to make decisions, not only because she has what Dr H described as an impairment of executive functioning, but because she is under pressure because of the gravity of the decision before her to return to her own home or to enter residential care.  This was apparent in her own statements.

5. The Tribunal accepts that all of the network of people around the represented person are well intentioned and are all very concerned for her interests.  All want what is best for the represented person and have tried to convey to the Tribunal and to others what she has expressed to them.

6. Although the represented person expressed to the Tribunal and to the Public Advocate's representative her gratitude for the support of her friends and family, it is apparent from her comments noted above that she is distressed by the conflict.

7. It is accepted by the Tribunal that the represented person may have indicated to different people differing views as to what was her preference in relation to a return home or the acceptance of services to remain at home or entry to a hostel.  The Tribunal notes the statutory declaration made by the represented person and accepts the submission of the Public Advocate that some caution should be exercised in placing too much reliance on the durability of the statements, given the circumstances surrounding the declaration being made.  It is clear that many friends of the represented person do not accept that she has an impairment of her memory and her judgment and, consequently, they rely on what the represented person says and have started to doubt the motivations of the others.  The friends now fear the attorneys are not acting in the best interests of the represented person or are making decisions against her wishes.  The breakdown in the relationships in a previously supportive network is not in the interests of the represented person, especially because of the obvious emotional impact it has had on her.

8. Unfortunately, the challenging decision before the represented person, whether she enters residential care or returns home with services, has caused a fracture in what has been an otherwise supportive network.  Because of the conflict between those closest to her, an independent guardian is required to make the decision about where the represented person should live.

1. The guardian also needs the function to consent to medical treatment on behalf of the represented person as her own judgment is impaired, and although the applicant, as the represented person's attorney, gave consent to the amputation of her toe, that authority is not within the power and this informal arrangement is not consistent with the provisions for consent to medical treatment as provided in the GA Act. 

2. In respect of consent to services, the represented person is noted by Dr F to have refused services.  However, it is also reported that she requires 24 hour care to live safely in her own home.  A trial of living at home with support services will likely be undertaken, and the guardian needs this authority, in the best interests of the represented person, to facilitate her return to living in the community if possible.

3. The applicant, who is a long­term friend and the accountant of the represented person, and the represented person's niece, propose their joint appointment as guardians.  The applicant and the niece are the donees of the represented person's EPA executed in 2006, at a time when no issue is raised about the represented person's capacity to make that choice.  The attorneys have reported that they have worked effectively to manage a number of matters for the represented person since their appointment.  The choice of them as attorneys is suggestive of trust being placed in them by the represented person.  Despite this background, in the current circumstances, the appointment of the applicant and the niece as guardians is not appropriate, because of the conflict that has arisen between them and the network of friends of the represented person who have played a significant supportive role in her life and will likely continue to do so.  There now exists a degree of distrust between the attorneys and the friends and this is not conducive to the resolution of the question of where the represented person should live.

4. An independent guardian will have the opportunity to arrange a further assessment of the represented person's capacity to express a consistent wish regarding this matter, given the reported inconsistency in the views she has expressed to date.  In the judgment of the Tribunal, the circumstances of the represented person require an independent decision­maker so that all the parties can have confidence in the final decision so that they can work cooperatively to support the represented person in that decision.  For this reason, the appointment of the Public Advocate as limited guardian is made for a period of six months.

5. In respect of the application for the appointment of the administrator, the Tribunal was not satisfied that an administration order should be made.

6. The attorneys had been appointed by the represented person pursuant to an EPA she executed in 2006.  No real objection was raised to the way that the attorneys had managed the finances of the represented person.  The suggestion that the represented person had changed her mind and intended to revoke the EPA did not persuade the Tribunal that an administration order should be made or that the arrangements put in place by the represented person should be interfered with.  Having considered the available medical evidence, there is a doubt as to whether the represented person was capable at the time when she was in hospital when she was said to have wished to revoke the EPA.  In any event, the EPA was not revoked by the represented person.  The represented person had also at other times expressed her satisfaction with the attorneys.

7. The position of the applicant was that only if there were questions raised about the operation of the EPA did the attorneys seek their appointments as administrators.  Since no real issue was taken with the operation of the EPA by the friends of the represented person (other than the authority did not extend to health or lifestyle matters), the Tribunal considered that the EPA represented a less restrictive alternative for the management of the represented person's finances and, therefore, that the represented person was not in need of an administrator of her estate.

8. It was clear from the submissions that the applicant did not intend that an administration order should be made in place of the EPA, but that this was only the position put in the alternative.  The Tribunal dismissed this application, noting that other parties are entitled to bring applications for the appointment of an administrator for the represented person's estate should they consider that the EPA was not operating in her best interests.

Orders

1. The Tribunal makes the following orders:

   1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be 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)subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990, to consent to any treatment or health care of the represented person; and

   (d)to determine the services to which the represented person should have access.

   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.This order is to be reviewed by 13 May 2010.

   4.The application for the appointment of an administrator is dismissed.

I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS F CHILD, MEMBER