QMW
[2012] WASAT 163
•19 JULY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: QMW [2012] WASAT 163
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
HEARD: 19 JULY 2012
DELIVERED : 19 JULY 2012
PUBLISHED : 9 AUGUST 2012
FILE NO/S: GAA 1694 of 2012
GAA 1696 of 2012
BETWEEN: QMW
Represented Person
Catchwords:
Guardianship and administration Review by Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) of decision to appoint Public Advocate as limited guardian and Public Trustee as plenary administrator Represented person suffering dementia Represented person requires accommodation in longterm care facility - Whether represented person's husband should be appointed guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 17A, s 43, s 44, s 64, s 68(1), s 68(3)
Result:
Appointment of Public Advocate as limited guardian confirmed
Appointment of Public Trustee as plenary administrator confirmed
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
QW [2007] WASAT 23
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
QMW has advanced and progressive Alzheimer's dementia. A single member conducted a review of guardianship and administration orders in respect of QMW. The member made a guardianship order appointing the Public Advocate as limited guardian for QMW and an administration order appointing the Public Trustee as plenary administrator of QMW's estate.
MW, QMW's husband, sought review of these decisions by a Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA).
Following the hearing, the Full Tribunal gave an oral decision in which it dismissed the application for review and confirmed the orders made by the member. The Tribunal considered that the appointment of an independent guardian and an independent administrator is in QMW's best interests, because of ongoing conflict within the family between MW and QMW's daughters about where QMW should live, what external activities she should have access to, and related financial issues. The Tribunal also considered that MW lacks insight into QMW's condition and that his intention, if he had authority to do so, to take QMW out of the nursing home, at least for periods of time, is not in QMW's best interests. However, the Tribunal observed that, given MW's continuing concern about not being able to take QMW on outings, it may be time for a fresh occupational therapist's assessment in relation to that issue.
The Tribunal's reasons, taken from the transcript and edited in minor respects for clarity, were as follows.
Represented person
These are the Tribunal's reasons for decision in relation to proceedings GAA 1694 of 2012 and GAA 1696 of 2012 in relation to QMW, the represented person. QMW is an 88yearold lady who has advanced and progressive Alzheimer's dementia and resides in a nursing home in St James.
The social worker report of JS, dated 21 February 2012, states that the represented person is 'very confused due to dementia' and 'does not follow instructions due to confusion'. The medical report of QMW's general practitioner, Dr JO, dated 9 February 2012, states that she is incapable of making reasonable decisions in relation to her personal health care, living situation or financial affairs, would be unable to make any input at a hearing and that attendance at a hearing would be in fact detrimental to her health and not in her best interests.
Previous applications
It appears that QMW and MW, who is the applicant in this proceeding, married in July 2005.
In March 2006, LJ, QMW's daughter, made an application to the Tribunal for guardianship and administration orders, as there was a conflict between herself and MW over QMW's financial affairs and care needs. On 2 May 2006, the Tribunal made an administration order appointing the Public Trustee as plenary administrator in relation to the estate of the QMW. On 1 November 2006, the Tribunal made a limited guardianship order appointing VLJ, QMW's grand-daughter, as limited guardian. The reasons for that decision were published as QW [2007] WASAT 23 (QW 2007).
On 17 April 2007, the Tribunal reviewed both the guardianship order and the administration order, under the Guardianship and Administration Act 1990 (WA) (GA Act). At that time, the Tribunal revoked and substituted a guardianship order appointing the Public Advocate as plenary guardian and amended the administration order to appoint the Public Trustee as plenary administrator of the estate of QMW.
The Tribunal ordered that both the guardianship order and the administration order were to be reviewed by 17 April 2012.
Decision under review
On 17 April 2012, the Tribunal, constituted by Member S Gillett, conducted a hearing to review the guardianship order and administration order.
In his report dated 13 April 2012, QMW's guardian, a delegate of the Public Advocate, observed that, 'there continues to be conflict between family members over accommodation', and that, 'there continues to be a conflict regarding the level of contact [QMW] should have with family members'. It appears that in about May 2009, the guardian made a decision to restrict the contact between MW and his wife 'on the advice of medical staff' and, in particular, restricted or precluded MW from taking his wife on outings unless certain care provisions were in place. It appears that, since that time, now over three years, there has not been agreement between the guardian and MW in relation to the provision of the care arrangements.
The Public Advocate recommended to the Tribunal that there is no alternative to the ongoing appointment of an independent guardian and that that appointment should be for a further period of five years. Similarly, the Public Trustee in its report of 10 April 2012 said that there remains an ongoing need for a plenary administration order to be made.
Following the hearing on 17 April 2012, the Member revoked the plenary guardianship order and substituted a more limited guardianship order appointing the Public Advocate as limited guardian to decide where and with whom QMW is to live, to make treatment decisions for her, to make decisions in relation to contact and to make decisions in relation to services on behalf of QMW. The Member also confirmed the administration order appointing the Public Trustee as the plenary administrator for the estate of QMW. Both orders were made reviewable by 17 April 2017.
Section 17A review application
On 15 May 2012, MW commenced these proceedings, seeking review of the decisions of the Member by a Full Tribunal under s 17A of the GA Act. This is a fresh hearing of the matters in issue, in particular whether guardianship and administration orders should be made, and if so, in what terms.
Applicant's contentions
In his statement of reasons seeking review dated 26 June 2012, MW identified essentially four bases for seeking the review, to which he added a fifth in the discussion today.
The four bases identified in the statement of reasons were that:
1)the Public Trustee's representative and his wife's granddaughter were not present at the hearing before the single Member;
2)the Public Advocate refused to allow an independent specialist to assess his wife;
3)the Tribunal refused access to any documents to him; and
4)the doctors' reports were incorrect because they were based on false information.
Issues for determination
There are four key issues for the Tribunal to determine in relation to these matters.
The first issue is whether the represented person is one for whom a guardianship order or an administration order can be made. The presumption under the GA Act is that people have capacity and do not require a guardian or an administrator. The question is whether, under the provisions of the Act related to guardianship and administration, that presumption is set aside in the circumstances of this case.
The second issue is whether there is a need for a guardianship order or an administration order, including whether there is some less restrictive alternative than those orders.
The third issue is, if the answers to the first two issues are 'yes', should the orders be plenary or limited and, if limited, how limited.
The final issue is, again if the answers to the first two issues are 'yes', who should be appointed as the guardian and the administrator.
Whether a guardianship order or an administration order can be made
Section 43 of the GA Act states that the Tribunal may make a guardianship order for a person over the age of 18 if that person:
(1) …
(b) is
(i)incapable of looking after [their] own health and safety;
(ii)unable to make reasonable judgements in respect of matters relating to [their] person; or
(iii)in need of oversight, care or control in the interest of [their] own health and safety or for the protection of others[.]
Section 64 of the GA Act states that the Tribunal may make an administration order in relation to a person if the person:
(1)…
(b)is unable by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of [their] estate; and
(c)is in need of an administrator of [their] estate,
…
In this case, there can be no question, based on the medical evidence that we have referred to, which follows on from over six years of similar medical evidence, that QMW is a person in respect of whom a guardianship and administration order can made. In particular, QMW is, by reason of progressive dementia, incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person and in need of oversight, care and control in the interests of her health and safety, and is unable by reason of her Alzheimer's disease, which is relevantly a mental disability, to make reasonable judgments in respect to matters relating to all or any part of her estate.
Whether there is a need for a guardianship order or an administration order
The Tribunal is satisfied that there is a need for a guardianship order and an administration order to be made.
In relation to guardianship, although QMW is now settled and has been settled for over five years in the nursing home, there is continuing conflict within the family as to where she should reside. MW indicated to the Tribunal that his wife has on many occasions requested to leave the nursing home and that it would be his intention, if he had the authority to do so, for her to be able to leave at least for periods of time. There is, in our view, therefore, a need for a guardianship order to deal with and to address questions of living accommodation, services and contact. There is no less restrictive alternative in the circumstances.
In relation to the administration order, we are also satisfied that there is a need. The Public Trustee has been the administrator of the represented person's estate, which comprises a fund of around $400,000 and income and expenditure, for the past five years. The Public Trustee appears to have appropriately discharged its functions. There is a need, in our view, given the situation of the represented person, for the continuation of an administration order to manage her estate, so that income is properly accounted for and so that expenses associated with her care are properly paid.
Should the orders be plenary or limited
The Tribunal always seeks to limit orders that interfere with a person's freedom to make decisions, even if the person is one for whom an order can and should be made, to the greatest extent possible. We are satisfied that the limitations placed by the Member in the decision under review were appropriate, that is to say that a plenary order is not necessary in relation to guardianship.
We have given consideration to whether the guardianship order should be further limited, given that QMW is now well settled in the St James nursing home facility. However, on reflection, the Tribunal is satisfied that it is appropriate to include within the guardianship order authority to decide where the represented person is to live, whether permanently or temporarily, and to decide with whom QMW is to live, because there is ongoing conflict within the family as to those circumstances. The other authorities in relation to treatment and contact and services are appropriate in all the circumstances.
In relation to the administration order, there does not appear to be any reason to limit the order and it would be detrimental to the interests of QMW to seek to limit the administrator. The plenary order is appropriate in the circumstances, to be able to ensure that all income is properly accounted for and all expenses are paid.
Who should be appointed as guardian and as administrator?
This issue appears to be the key issue in contention between the parties. MW has proposed himself as both guardian and administrator for his wife. QMW's daughters both support the maintenance of the current arrangements under which the Public Advocate is the guardian and the Public Trustee is the administrator and, as noted earlier, the Public Advocate and the Public Trustee recommend that the Tribunal should continue their appointments.
Section 44(1) of the GA Act concerns who may be appointed as a guardian:
(1) A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
Section 44(2) requires the Tribunal, in deciding whether a person is suitable to act as guardian, to take into account as far as possible:
(2)…
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person’s estate;
(c)the wishes of the person in respect of whom the application is made; and
(d) whether the proposed appointee will be able to perform the functions vested in [them].
It is also to be noted that s 44(3) of the GA Act states that the fact that a person proposed to be appointed is a relative of the person for whom the application is made does not necessarily mean that there is any conflict, and that s 44(5) states that '[e]xcept where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act'.
In relation to administration, s 68(1) of the GA Act says that:
(1)An administrator (including a joint administrator) shall be
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
In addition, s 68(3) requires the Tribunal to take into account as far as possible:
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
Having regard to all of these provisions, we agree with the recommendation of the Public Advocate and the Public Trustee that an independent guardian and an independent administrator is in the best interests of QMW and is necessary in the circumstances of this case. This is because of ongoing conflict within the family between MW and QMW's daughters about important matters, in particular where QMW should live, what external arrangements should be made in terms of activities, and related financial issues. It is to be noted that on the material the Tribunal has before it, these family conflicts have been ongoing since at least 2006. They were addressed in the decision in QW 2007 at [19] - [23].
Specifically, in relation to guardianship, appointing the Public Advocate is consistent with the desirability of preserving relationships within the family and, in particular, to ensure that all members of the family have the opportunity to visit the represented person and to ensure that all members of the family have a role through an independent guardian in making suggestions as to the circumstances of the living arrangements and services and facilities available to the represented person.
In relation to s 44(5) of the GA Act, we find that there is no person other than the Public Advocate who is suitable to act in the circumstances of this case. We have come to that view for three reasons, noting that MW has put himself forward as a person who is willing to act as the guardian.
The first reason is, as we have said, that there is ongoing conflict within the family and in particular between MW and QMW's daughters. That, in our view, is sufficient for a finding that in the circumstances of this case MW is not suitable to act as the guardian.
The second reason is that MW appears to exhibit a lack of insight in relation to QMW's condition. It appears that this is a result of his affection for his wife, but nevertheless, is a lack of insight. For example, MW told the Tribunal that QMW wishes to come home and has said so on many occasions. We have no doubt that the QMW has said that to MW, but in light of her dementia, she is not in a position to be able to make reasonable judgments about those matters. The fact that MW accepts QMW's statements about those matters as being the statements of a person who does have capacity to make such statements demonstrates, in our view, that MW does not appreciate the true nature of the QMW's condition.
The third reason is that MW indicated to the Tribunal that if he had the capacity to do so, he would wish to bring QMW out of the nursing home at least for periods of time. It is patently clear to the Tribunal to that do so would not be in the QMW's best interests. She is a lady who has advanced progressive Alzheimer's disease and she is a lady for whom there needs to be an ongoing high level of care in her own interests. That simply cannot be done in a home residence.
In relation to the administration order, again we note that MW has put himself forward as the administrator. However, the Public Trustee appears to have exercised the role of administrator appropriately now for a period of six years. It is in QMW's best interests for there to be continuity in the administration of her estate, particularly when it has been properly done for such a period of time. Taking into account the compatibility of the two proposed appointees, namely MW and the Public Trustee, with the guardian, the Public Advocate, it is appropriate, in our view, to appoint an independent administrator, namely the Public Trustee. Further, in relation to whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator, we are satisfied that the Public Trustee is best placed to perform those functions in the represented person's best interests.
For these reasons, we are satisfied that it is appropriate to confirm the orders made by the single Member.
The issues raised by the applicant in seeking review
To the extent to which they have not already been addressed, the Tribunal will now address the reasons expressed by MW for seeking the review.
The first issue or reason raised by MW, as we noted earlier, was that at the first hearing the Public Trustee and QMW's granddaughter were not present to be questioned. This issue is not relevant to the review that is before the Tribunal now. In relation to the review here, we have the report of the Public Trustee and the Public Trustee was available by telephone, if required, to answer questions.
In relation to the second reason put forward by MW, that the Public Advocate refused to allow an independent specialist to assess his wife, the evidence of QMW's guardian is that MW's request to that effect, which was made, was assessed by the guardian in consultation with the general practitioner, and a decision was made that in the circumstances of the case and given the medical reports over many years, there is little practical utility in a further specialist assessment. That appears to be a reasonable judgment on the part of the guardian, given the history of medical reports.
The third reason put forward by MW was that the Tribunal did not allow him access to any documents. That was of course in relation to the previous hearing, but in any case, it does appear from the file that the report of the general practitioner was made available and that the documents were in the hearing room. In any case, for the purposes of this review, the parties have had available a hearing book which contains all of the information that we have had regard to in making this decision.
The fourth reason put forward by MW was that the doctors' reports were incorrect because they are based on false information. However, there is no evidence at all of this. There can be no question on the evidence we have in relation to QMW's diagnosis. No real question has been raised about the independence of the general practitioner to express the opinions that he has expressed and which follow on from a history of similar medical reports. Furthermore, MW himself conceded that, consistently with the medical evidence, over the past 12 18 months his wife's condition has, unfortunately and sadly, deteriorated.
The fifth reason given by MW, which was made orally today but not in the statement of reasons filed with the Tribunal, was a general concern about the nursing home facility in which his wife resides, and a particular concern that he has not been allowed to take her for outings since about May 2009. QMW's guardian described the St James nursing home as 'not the best, but not the worst' that he has seen in his role as guardian. He said that it is not correct to describe it as 'a prison', as MW did. He also indicated that, to his knowledge, QMW has had access to services within the facility, for example, hairdressing, and has on occasion been taken on outings on a bus in a group environment.
QMW's daughters, who visit her regularly (although not as regularly as MW, who visits every day), consider that the nursing home is appropriate and do not have any concerns about the level of care that their mother receives in the nursing home. QMW's guardian also said that MW was not denied opportunities to take his wife out, but rather that the guardian, in consultation with the nursing home and having regard to medical advice, considers that there should be proper care services available in order to do so. In particular, it appears that the current view of the guardian, based on advice, is that there needs to be two support people available.
We are satisfied on the evidence of the guardian and of QMW's daughters that the facility is adequate, although it can always be improved. We are somewhat concerned about the ongoing inability of MW to be able to provide some external visits for his wife. The question is of course a matter for the guardian, based on advice, as to what arrangements are appropriate. Without knowing more about that issue, the need for two care workers is a little puzzling. Although this is a matter for the guardian, perhaps given MW's ongoing concern about this issue, it is time for a fresh occupational therapist's assessment of this particular issue. No doubt the guardian will be guided by the occupational therapist's assessment. In saying that, of course, we well understand that there will be a need for at least one person to accompany any external visits, given the represented person's condition.
Orders
For these reasons we make the following orders:
GAA 1694 of 2012
1.The application for review is dismissed.
2.The guardianship order substituted on 17 April 2012 is confirmed in the following terms:
The Public Advocate 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 (WA), to make treatment decisions for the represented person;
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)to determine the services to which the represented person should have access.
3.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.
4.This order is to be reviewed by 19 July 2017.
GAA 1696 of 2012
1.The application for review is dismissed.
2.The administration order substituted on 17 April 2012 is confirmed in the following terms:
The Public Trustee is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.This order is to be reviewed by 19 July 2017.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT
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