PK and LM - [2006] WASAT 285

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PK and LM [2006] WASAT 285

MEMBER: MS D DEAN (MEMBER)
MR S JONGENELIS (SENIOR SESSIONAL MEMBER)
MS R CARROLL (SENIOR SESSIONAL MEMBER)

HEARD: 5 JULY 2006

DELIVERED : 22 SEPTEMBER 2006

FILE NO/S: GAA 1201 of 2006

BETWEEN: PK
Represented Person
AND
LM
Applicant

Catchwords:

Application for to review of administration order - Leave to apply for a review - Application for guardianship - Capacity - Need - Best interests - Family conflict - Need for independent decision-maker

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 86, s 87, s 90, s 119

Result:

Leave to apply for review of the administration order granted.
The Public Trustee confirmed as plenary administrator with a directive to provide a written report within 21 days in respect of the allowances paid to the represented person.
The Public Advocate appointed limited guardian with the authority to decide on accommodation, contact and services.

Category: B

Representation:

Counsel:

Represented Person : Self-represented
Applicant: Ms T Spence

Solicitors:

Represented Person : Self-represented
Applicant: Hammond Worthington

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal’s decision

PK suffered a series of debilitating strokes leaving him unable to make reasonable decisions for himself. Prior to his illness he had lived with LM for six years in a defacto relationship in a country town. PK had three adult children from his first marriage as well as involved and supportive siblings.
LM applied to the Tribunal for a guardian and an administrator to be appointed for her defacto husband. The Tribunal appointed the Public Trustee plenary administrator of the estate and dismissed the application for guardianship on the basis that there was no need for a guardian. The family were in agreement with PK's ongoing placement in a nursing home and any medical decisions could be managed under s 119 of the Guardianship and Administration Act 1990 (WA) which authorised LM as the de‑facto wife to make those decision.
Some months after these decisions were handed down, the son made an application for guardianship, because the agreement made by the family about PK's accommodation had broken down when the wife removed PK from the nursing home and they both went to live with friends. A short time later the wife made an application for the administration order to be reviewed on the basis that it wasn't working effectively.
The Tribunal made a decision to confirm the order appointing the Public Trustee plenary administrator of the estate on the basis that the estate of PK and his wife was complex and entwined, resulting in the wife being unclear as to what was hers and what was PK's. In addition, it was clear that the wife was having trouble coming to terms with the fact that decisions needed to be made about their country property, which may need to be rented out to generate income for PK's care needs.
The order was made for six months on the basis that this would give the Public Trustee time to rationalise and clarify estate details, after which it may be possible and appropriate for a family member to take on the role of administrator.
The Tribunal made an order appointing the Public Advocate limited guardian of PK with the functions of deciding where and with whom he was to live, what contact he was to have with others and to what services he should have access. It was also considered by the Tribunal that once the accommodation and services decisions had been made and appropriate contact arrangements had been set in place, there might be no further need for a guardianship order.

Background

PK is a fifty six year old man who has suffered a series of debilitating strokes leaving him cognitively impaired. Prior to the strokes he lived in a Western Australian country town with his de‑facto wife, LM. PK has a son and two daughters from other relationships as well as involved and supportive siblings.
In March 2006, the Tribunal heard two applications made by LM, one for guardianship and one for administration. The Tribunal dismissed the application for guardianship and appointed the Public Trustee plenary administrator for a period of five years.
In May 2006, PK's son, JK, made an urgent application for guardianship because an agreement made between the parties at the previous hearing for PK to continue to reside in nursing home care, had broken down and he had been moved, without discussion or consultation with other family members, by LM to live with her and family friends in their home. JK proposed the Public Advocate as guardian for PK.
In June 2006, LM made an application to the Tribunal for review of the administration order. LM proposed that she take on the role of administrator on the basis that she wished PK to be "more involved in his own financial requirements".
LM proposed that if a guardian is to be appointed it be her because, as his de‑facto wife and his primary carer, she believes herself to be in the best position to take on the role of guardian. LM was legally represented at the hearing by Ms Spence.
Both applications were heard and decisions given on the day. The Tribunal appointed the Public Advocate limited guardian to decide where PK is to live, to determine services to which he has access and the contact he has with others. The Public Trustee was confirmed as plenary administrator. Both orders are to be reviewed in six months.
These reasons are written in relation to both the administration and guardianship decisions made in July 2006.

Relevant Legislation

In hearing an application for review of an order the Tribunal must, in the first instance, decide if the applicant is eligible under s 86 of the Guardianship and Administration Act 1990 (WA) (GA Act) to apply for a review. In this case the applicant is not the Public Advocate, a represented person, or an administrator and therefore must seek leave under s 87 of the GA Act for review of the administration order.
"86.   Review on application or at initiative of Board
(1)The State Administrative Tribunal may at any time on the application of -
(a)the Public Advocate;
(b)a represented person or a guardian or an administrator; or
(c)a person to whom leave has been granted under section 87,
review a guardianship order or an administration order.
(2)The eligibility of a guardian or administrator to apply under subsection (1)(b) is limited to the guardianship or administration order under which he acts.
87.     Leave to apply for review
(1)Any person may request the State Administrative Tribunal for leave to apply for the review of a guardianship order or an administration order.
[(2), (3)     repealed]
(4)The person making the request shall state his reasons for the request at his option -
(a)in writing;
(b)orally in an appearance before the State Administrative Tribunal; or
(c)partly in writing and partly orally.
(5)The State Administrative Tribunal may -
(a)refuse the request; or
(b)if it is satisfied that because of a change of circumstances or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review."
In accordance with s 90 of the GA Act, upon review of an administration order the Tribunal may confirm, amend or revoke the order and substitute another order for it.
The Tribunal makes its decisions in accordance with the principles set out in s 4(2) of the GA Act. These principles are that; there is a presumption of capacity unless shown to be otherwise; a guardian and/or administrator should not be appointed if there is a less restrictive alternative to the making of an order; the wishes of the person are taken into account where possible and the decision is made in the best interests of the person.

Information provided prior to the hearing

In addition to the information provided for the previous hearing, the Tribunal had access to a large amount of new written material prior to the July hearing. This material included the written applications, reports from medical and paramedical service providers, submissions from friends and family of PK, a lengthy submission from the solicitor for LM, a report from the Public Trustee and a report from the Public Advocate which was tabled at the hearing.

The hearing

The hearing was attended by the son, JK, (applicant for guardianship), daughter, SK, de‑facto wife, LM, (applicant for review of the administration order), other family members and friends of PK, a solicitor representing LM, representatives from the Office of the Public Trustee and the Office of the Public Advocate.
The issue of leave to apply for review of the administration order was dealt with and granted by the Tribunal at the commencement of the hearing.
Dr Blacker, a stroke neurologist, stated that his current assessment of PK is that he can not make any meaningful decisions in respect of his estate. Dr Blacker commented on the fact that PK is able to express a view that he wants to return with LM to their country home to live and that he wants LM to continue to manage his estate.
Information was provided by parties, particularly the son and daughter, that PK, although able to express a view, did so only when guided by closed questions. They cited instances of LM questioning PK in a way to ensure that he responded with answers of her preference. They also detailed instances when PK showed he was not oriented to time or place.
LM explained to the Tribunal that PK's capacity to make decisions fluctuates with his fluctuating blood pressure. She agreed that "he has some moments of confusion and he does need a lot of help". "He does get a little bit confused on occasions and he does need some other support". She agreed that there is a need for a guardian to be appointed and stated that she is prepared to take on this role.
The Tribunal found, and it was agreed at the hearing that PK generally lacks the capacity to make reasonable decisions about his health, welfare or financial affairs. The question for the Tribunal then is who should take on the role of decision‑makers and what decision‑making functions the decision‑makers should have.

Guardianship

The son informed the Tribunal that he made the application for guardianship because of the breakdown in the agreement made at the previous hearing that PK would continue to reside in the nursing home. Subsequent to the previous hearing, PK had been discharged from the nursing home into the care of LM, his de‑facto wife. This had occurred without discussion or consultation with other members of his family. LM and PK are currently living with friends. The son stated that in his opinion it would be in PK's best interests to have an independent authority such as the Public Advocate authorised to make decisions such as accommodation and contact, which are contentious within the family.
It was generally accepted that the care provided to PK by LM is excellent and cannot be faulted but concerns were expressed about the problem maintaining the health of PK in the home setting given the fact that he has had two hospital admissions since moving out of nursing home care. In addition, the family expressed concern that they had not been notified of these hospital admissions when they occurred. The solicitor explained that it was sometimes difficult for LM to access a phone to inform family in those times of crisis.
Concerns were also expressed about the fact that PK and LM are residing with family friends making it difficult for some family to visit and maintain a relationship with him. Further problems around the visiting and contact issue were raised by family members who felt that there was a resistance on the part of LM to facilitate contact between PK, his children and other family members.
Family members expressed concerns that they have not been kept informed about the health and welfare of PK and this, along with the difficulties visiting him, indicates the need for the appointment of a guardian independent of the family to ensure that family are able to maintain their close supportive relationships with PK.
In a written submission provided to the Tribunal, LM proposed herself as guardian and outlined her plans if appointed guardian. This included keeping family informed and up to date about the health and welfare of PK by way of fortnightly emails and by providing opportunities for family to visit and spend time alone with him.
LM explained that she and PK are planning, in consultation with his doctors, to return to live in their home in country Western Australia. This plan, according to family members and the Public Advocate, is fraught with problems because of the limited medical and community support services available in the country town. Given PK's frail health, medical and family opinion is that he needs to have ready access to quality health and community care. In addition LM, who is providing twenty four hour care to him also requires support and respite. None of this would be available in the country town.
The son suggested that if the marital home in country Western Australia was sold, the proceeds could be used to purchase a suitable home in Perth or close by for the couple to live where adequate support services are available. This is not a plan which appeals to LM who insists that PK wants to return to their country home to live.
LM explained to the Tribunal that she feels well equipped to deal with any medical emergency which might occur even in the country town where there are limited medical and social supports.
The Public Advocate informed the Tribunal that it is her opinion that PK, although able to express a wish, is not able to make informed decisions. For example when he expresses a wish to return to the country town to live he "makes this statement without any insight into his current health needs". The Public Advocate further reported that when she spoke with PK he was not oriented to time and thought he was living elsewhere which appears to be consistent with information provided to the Tribunal by his children. The Tribunal accepts that PK's lucidity may fluctuate but nevertheless must impact on his decision‑making ability.
In summary, the major concerns identified by the family and accepted by the Tribunal are the difficulty family members experience in having contact visits with their father and brother because of the current living arrangements and what the family perceive as the sabotaging influence of LM. Further difficulties are apparent in respect of the proposed move back to the country home for PK, presenting additional difficulties with contact and meeting his medical and care needs if this move eventuates.
It was agreed by the parties that the medical decisions are being adequately made by LM pursuant to the authority she has under s 119 of the GA Act, and that there is no need for the appointment of a guardian for this decision‑making function.

Administration

LM informed the Tribunal that she made the application for review of the administration order because any financial decisions made by the Public Trustee impacts on her and her finances and as such she felt it more appropriate that she manage both her own and PKs finances as they are so inextricably intertwined.
The Public Trustee, in his report to the Tribunal, stated that LM "at times seems to have difficulty in understanding the role of the Public Trustee". Further clarification of this statement at the hearing indicated that LM believes that any proposal by the Public Trustee to rent the jointly owned and currently vacant country property is a proposal which only advantages PK but impacts on LM. The Public Trustee pointed out that LM's refusal to sell or rent the home in the country is putting a heavy burden on the estate because of the high outgoings with no return from the property.
Ms Spence informed the Tribunal that since the appointment of the Public Trustee LM has not been able to access adequate funds to pay PK's expenses. Ms Spence cited the example of the battery for PK's car having to be replaced and because of problems accessing his money from the Public Trustee LM had to pay for the new battery and then seek reimbursement from the Public Trustee.
Ms Spence highlighted the problems LM has experienced accessing the allowance which has been allocated to PK to pay his weekly expenses. The bank with whom PK and LM have accounts refused to allow LM access to the necessary accounts. The Public Trustee informed the hearing that the trust manager had arranged with the bank to allow LM access to the necessary accounts and to withdraw funds up to $300 a fortnight, being the allowance allocated by the Public Trustee.
The Tribunal was reassured by the Trust Officer at the hearing that any difficulties in regard to access to funds would be quickly rectified by the Public Trustee who would ensure that in future adequate funds were accessible by LM for payment of expenses associated with PK.
LM explained to the Tribunal that prior to the order appointing the Public Trustee she had managed the complex family finances in an honest and efficient way ensuring that loans attracted minimum interest and accounts were all paid in a timely fashion.
LM detailed some of the complexities of the family finances and explained that she had contributed significant funds in various ways to the joint estate when she and PK set up house together. She expressed the feeling that this contribution is not recognised by the Public Trustee in its management of PK's estate. Further discussion of this problem highlighted the fact that some jointly owned property such as the family vehicle is registered in PK's name to attract the veterans' benefits.
Ms Spence explained to the Tribunal that LM's pension entitlements are dependent on PK in that he has a gold card veteran's entitlement which, if they live separately, entitles them to both receive a full pension whereas when they live together they individually receive a smaller pension because of the assumption that their expenses are shared.
LM raised the issue, which had been dealt with in the previous hearing, relating to her attempts to sell PK's car when she and SK, PK's daughter, were joint donees of PK's enduring power of attorney. This had further contributed to the break‑down in the relationship between LM and SK, and the problems they were experiencing in trying to operate the joint enduring power of attorney, and had precipitated the application to the Tribunal for an administration order.
LM cited another example of where she has had difficulty accessing funds to pay a large pharmacy account incurred in Perth. There was some discussion about the practicality of the administrator setting up an account with a pharmacy so this situations does not re‑occur. LM explained that there is such an account in the town where they live but she was in Perth and wanted to pick up the pharmaceutical supplies. It did not suit her to pick them up at the pharmacy with the account. The Trust Officer explained that most pharmacies in Perth are familiar with the Public Trustee and will set up accounts for a one off supply of pharmaceutical goods when the Public Trustee is involved. The Trust officer said that a telephone call to the Public Trustee would have prevented this problem occurring.
LM raised the issue in the submission provided by Ms Spence, of the Public Trustee joining PK up to the ambulance fund when he automatically receives hospital and ambulance cover through his veterans affairs pension. The Public Trustee explained that this was a once a year payment of $25 and had occurred in this case because Veterans Affairs had been tardy in providing the Public Trustee with information about PK and his entitlements. The payment would now be cancelled.

LM informed the Tribunal in her written submission that mortgage payments had been directed to the wrong account attracting overdraft fees. The Trust officer explained that this error had been rectified and there was no financial loss to the client.
Also outlined in the submission were concerns about $3000 that LM and PK had previously decided to use for mortgage payments. This was used by the Public Trustee to pay for the car recently purchased by LM for her and PK's use.
LM explained to the Tribunal that she manages to pay some of PK's expenses by using the joint mastercard which she is still able to access. The Public Trustee has not curtailed her use of this card.

Findings and Reasons

Capacity

In making a decision about the capacity of PK to make reasonable lifestyle and financial decisions for himself, the Tribunal had access to the information provided for the hearing in March 2006 from various medical and paramedical professionals, as well as information from family and friends provided for the previous and current hearings. The neurologist submitted a new report for the current hearing.
In his report for the previous hearing, the neurologist assessed PK as incapable of making reasonable decision in respect of his personal health care, living situation or financial affairs. In this report he stated that PK may intermittently have partial understanding "but cannot make reasonable decisions".
In his report provided for the current hearing, the neurologist assessed PK as unable to make reasonable decisions in respect of his personal health care and his finances but said he was "unsure" whether PK could make reasonable decisions in respect of his living situation. He stated that PK "expresses a desire to return to [country town] and to continue living with his de‑facto [LM]". The Tribunal was unable, because of his surgical commitments, to contact the neurologist to discuss these comments but it is satisfied that, while PK can express a view about where he wishes to live he cannot do so in an informed way. He does not have the capacity to weigh up and evaluate alternative information and take into account the consequences of his decisions. In reaching this decision, the Tribunal accepted the evidence of the doctor, the Public Advocate and family members, including the son and daughter, who gave examples which highlight the limitations in PK's capacity to make reasonable decisions in his own best interests.
The Public Advocate visited and spoke with friends, family and PK. In her report, and at the hearing, she informed the Tribunal that it is her view that PK is not able to give an informed view in respect of any major lifestyle or financial decision.
Based on the information provided by family and friends at the hearing, the reports provided to the Tribunal by the neurologist, and the information provided both in her report and at the hearing by the Public Advocate, the Tribunal is satisfied that PK is incapable of looking after his own health and safety and is unable to make reasonable judgments in respect of matters relating to himself or his finances and is therefore a person for whom orders can be made.

Need

As set out in the legislation, the appointment of an administrator requires the Tribunal to find there is a need for an order and that the needs of the person cannot be met by any means less restrictive of the persons freedom of decision and action.
In this case, decisions about PK's medical needs can and are, being adequately made by LM under s 119 of the GA Act. There is no dispute between the parties about this and there is therefore no need for the appointment of a guardian to make decisions in this regard.
The problem areas of decision‑making are around the issues of contact between PK and others and where PK is to live which also impacts on the services to which he will have access.
The Tribunal heard from various family members that they are not kept informed about accommodation and medical decisions which are being made in relation to PK. Family members also detailed the difficulties they experience in their attempts to visit PK.
With regard to the need for an administrator all parties agree that there is a need for an administrator to operate PK's accounts, manage his assets including the jointly owned home and pay his ongoing accounts. Unfortunately, the conflict which exists between LM and PK's close family members makes it difficult for any family member to administer the estate in a way which would be accepted by others as being in his best interests. From the Tribunal's perspective it is apparent that LM has difficulty in accepting that the estate, or at least PK's share of it, should be managed in a manner which exclusively protects PK's interests. Given the unlikelihood of his return to their country home, decisions need to be made about that home, which is his major asset, and the need for it to produce income to help support his current and future financial needs.

Wishes of PK

The Tribunal is required as far as possible to take into account the wishes of the person whom the application concerns. Although it was not possible to ascertain the current wishes of PK it was clear from the information provided by the parties that prior to his illness PK was in a long term, loving and supportive relationship with LM, and had appointed her, along with his daughter, his power of attorney to manage his finances if he was unable to do so himself. It is unfortunate that this arrangement broke down because of conflict between the parties but it is the opinion of the Tribunal that if PK had wanted LM to manage his finances alone he would have appointed her his sole attorney.
PK maintains strong loving relationships with his children and siblings. Most of the conflict between the parties appears to have developed subsequent to the illness and has had a negative impact on the relationships between PK and his family.
The Tribunal is of the view that PK would want to maintain the loving and supportive relationships with LM and his family and the best way to do this is for those contentious decisions, both lifestyle and financial, to be made by parties independent of the family, at least in the short term.

Best interests of PK

In this case, the Tribunal accepts that the relationship between LM and PK's family, particularly his children, is highly conflictual and has a negative impact on his relationships with them. The Tribunal finds that it is in the best interests of PK to have parties independent of the family appointed in the roles of guardian and administrator, at least in the short term, until major lifestyle and financial decisions have been made and implemented. The Tribunal is of the opinion that it is important that all significant family members are consulted, informed and involved where possible and appropriate, in major decisions about PK and his life and finances.
Unfortunately, the relationship between LM and PK's extended family has deteriorated to the point where his family have not been kept informed about significant health events, and accommodation decisions have been made without consideration of, or communication with, other parties.
The Tribunal is of the view that it is in the best interests of PK that he be able to maintain relationships with his children and siblings. The decision about where PK is to live will impact on the contact he has with his family including his children and siblings. This decision can best be made by an independent authority that is able to weigh up the evidence and objectively make a decision which is in the best interests of PK, allowing him to have ongoing contact with all members of his family.
Similarly, decisions will need to be made about the marital home. These decisions will ultimately be affected by the accommodation decision and again will best be made by an authority independent of the family, that is able to make these decisions in the best interests of PK.
It is clear from information provided by LM that, if appointed guardian, she would move, with PK, back to their country home some hundreds of kilometres from Perth and this would put not only PK, but LM, as his carer, at risk. It is not in PK's best interests to have limited access to necessary medical and support services to keep him as comfortable and medically stable as possible.
The Tribunal accepts that it is difficult, and this is understandable, for LM to manage the estate of PK in his best interests because of her difficulty in making some of the hard decisions which need to be made, most particularly about the country property which may need to be rented out or sold to generate funds to support LM, PK and the care and services he requires.
LM understandably has a very strong emotional investment in returning to live in the country home with PK and any plan to rent the home out would make that dream less achievable. It is the view of the Tribunal that this impacts on LM's decision‑making to the point that she is not realistic about the consequences of a move back to the country town or the consequences of leaving the most significant family asset, the home, not attracting income to support PK's current and future needs.
Further, it is the view of the Tribunal that LM finds it difficult to understand PK's financial interests must be protected and managed in a way that ensures that adequate funds are available for his current and long term needs. The best way to achieve this is to have an administrator independent of the family appointed to identify and rationalise PK's share of the family estate. To this end, the Tribunal makes an order appointing the Public Trustee to manage the estate and to ensure that adequate funds are available for the accommodation and care of PK.

Decision

The Tribunal considered all the evidence available prior to, and at the hearing, and is satisfied that PK is a person for whom orders can be made. The Tribunal is further satisfied that it is in PK's best interests to have independent authorities appointed as decisions‑makers for him.
The Public Advocate is appointed limited guardian with decision‑making functions in the areas of contact, accommodation and access to services.
Once appropriate procedures for contact have been put in place and the decision about long term accommodation and service needs have been made and implemented there may no longer be a need for an order. The order is therefore a short one reviewable after six months.
Similarly, the Tribunal appoints the Public Trustee as administrator for a period of six months to rationalise the estate and put in place appropriate procedures to ensure that there are adequate funds available to meet PK's need now and in the future, in his best interests.

Orders

The Tribunal made the following orders:
1.Leave to apply for a review of the administration order made on 5 July 2006 is granted and the application for review proceeds forthwith.
2.(i) The order dated 30 March 2006 be revoked and the Public Trustee be appointed plenary administrator of the estate of PK.
(ii)The Public Trustee provide within 21 days a written report to the Tribunal confirming arrangements have been put in place to allow [LM] to access the $150 per fortnight provided for board and lodging and the $300 per fortnight allowance. A copy of this report to be provided to the Office of the Public Advocate and [LM].
3.This order is to be reviewed by 5 January 2007.
4.The Public Advocate is appointed limited guardian with the following functions:
(i)To decide where PK is to live, whether permanently or temporarily.
(ii)To decide with whom PK is to live.
(iii)To determine what contact, if any, PK should have with others and the extent of that contact.
(iv)To determine the services to which PK should have access.
5.This order is to be reviewed by 5 January 2007.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER

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PK and LM [2006] WASAT 285

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