QW
[2007] WASAT 23
•31 JANUARY 2007
QW [2007] WASAT 23
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 23 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2026/2006 | 1 NOVEMBER 2006 | |
| Coram: | MS D DEAN (MEMBER) | 30/01/07 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | A guardianship order was made appointing VJ limited guardian of QW | ||
| B | |||
| PDF Version |
| Parties: | QW |
Catchwords: | Application for guardianship Need for a guardianship order Dementia |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 44(1), s 44(2), s 51, Div 3 Pt 5 |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : QW [2007] WASAT 23 MEMBER : MS D DEAN (MEMBER) HEARD : 1 NOVEMBER 2006 DELIVERED : 31 JANUARY 2007 FILE NO/S : GAA 2026 of 2006 BETWEEN : QW
- Proposed Represented Person
Catchwords:
Application for guardianship - Need for a guardianship order - Dementia
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 44(1), s 44(2), s 51, Div 3 Pt 5
Result:
A guardianship order was made appointing VJ limited guardian of QW
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Category: B
Representation:
Counsel:
Proposed Represented Person : Self-represented
Solicitors:
Proposed Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 QW is an elderly woman diagnosed in 2004 with dementia. In 2005 QW married MW. QW had two daughters who were in conflict with MW and as a result contact between QW and the daughters was compromised.
2 In March 2006 QW's daughter made applications to the Tribunal for administration and guardianship orders. The Tribunal found that QW was a person for whom orders could be made and appointed the Public Trustee plenary administrator for 12 months. The Tribunal made a short administration order to give the family time to resolve their differences and in the likelihood that a family appointment might later be made.
3 The application for guardianship was dismissed on the basis that there was no need for an order as QW's granddaughter, who was on good terms with all family members, agreed to act as a go between and ensure that QW's needs were being met and that contact between QW and her daughters could occur.
4 In October 2006 QW's daughters made an application to the Tribunal for a guardianship order because MW planned an interstate holiday for himself and QW and refused to provide the daughters with contact information during the planned holiday.
5 The Tribunal found that there was a need for a guardianship order as the family had been unable to work together to ensure that QW had all her medical, welfare and accommodation needs met and as a result her health and welfare were at risk. Further, the Tribunal found that MW had, because of his conflictual relationship with the daughters, made contact between QW and her daughters difficult. In addition, the Tribunal found that MW, because of his lack of insight into QW's disability and needs, had historically made decisions which were not always in QW's best interests. There was no evidence to suggest that this would be any different in the future.
6 In order to preserve family relationships and to ensure that QW had all her needs met, the Tribunal appointed the granddaughter limited guardian to make decisions about medical matters, contact and accommodation.
(Page 4)
Background
7 QW is an elderly woman diagnosed in 2004 with dementia. She has two adult daughters and several grandchildren. In 2005 QW married a long term family friend, MW.
8 Subsequent to the marriage, QW's daughters and family became alienated from MW because of what they believe is the inappropriate influence exerted by MW over QW and the lack of appropriate care and support he provides for her.
9 In July 2004 QW executed an enduring power of attorney (EPA) appointing her daughter, LJ, donee. Early in 2006 QW revoked the EPA.
10 LJ subsequently made applications to the Tribunal for guardianship and administration for QW. These applications were heard on 4 August 2006. The application for guardianship was dismissed on the basis that there was no current need for an order as the family agreed to work together to ensure QW's needs were met.
11 The Public Trustee was appointed plenary administrator for a period of one year, to be reviewed on 2 May 2006. The Tribunal made a short administration order to give the family time to resolve their differences and in the likelihood that a family appointment might later be made.
12 On 11 October 2006, the Tribunal received an application by LJ and SG, daughters of QW, for the appointment of a guardian for QW.
13 The application for guardianship was heard on 1 November 2006. At this hearing an order was made appointing VJ, QW's granddaughter, limited guardian to make decisions in respect of accommodation, health care, contact with others and services for her grandmother, QW. The order was to be reviewed by 1 November 2011.
14 These written reasons are being prepared at the request of VJ, limited guardian and granddaughter of QW, and relate to the guardianship hearing on 1 November 2006.
Hearing
15 The hearing was attended by QW, MW, her husband, LJ and SG, her daughters, VJ, her granddaughter, PJ, her son-in-law, MJ, her grandson, SB, her brother, MB, her nephew, and SL, her granddaughter.
(Page 5)
16 The capacity question had been resolved in the previous hearings where written medical and paramedical evidence, along with evidence provided by the parties and QW at those hearings, confirmed QW's inability to look after her own health and safety or to make reasonable judgments for herself in respect of any major aspect of her life or health. It was agreed that she required care and oversight by others, namely her husband and family. No further capacity evidence was provided, or considered necessary, for the current hearing.
17 The application for guardianship made by the daughters was prompted by an eight week interstate trip planned by MW for both himself and QW. The applicants alleged that MW refused to provide holiday contact details for QW, making it impossible for her daughters to keep in touch with her and to ensure that she was safe and well.
18 MW stated in the hearing that he had not denied the contact information to the daughters but, because he did not have a mobile phone and he intended travelling to several different places, it would be difficult for him to give contact details to the daughters. VJ said that MW had told her that he had a mobile phone which she could use to contact him on the proposed trip and to get information about the welfare of QW. VJ said MW told her he would not make this contact facility available to QW's daughters.
19 It transpired from the information provided at the hearings by the parties, and confirmed by MW, that he was preventing contact between QW and her daughters because he was angry about an alleged assault by one of the daughters on him. The Tribunal highlighted the fact that this was a matter between MW and the daughter. QW's welfare and relationships with her family should not be compromised because of conflict between MW and the daughter. The alleged assault had been discussed in the 4 August hearing, at which MW had given an undertaking that it would not influence his decisions in respect of QW. The Tribunal emphasised the right of QW to have access to, and contact with all, members of her family, including her daughters.
20 In addition to the contact issue, parties raised concerns about the lack of adequate medical care for QW, referring to the fact that MW does not always follow medical advice with regard to treatment for QW. MW's responses in the hearing to these concerns confirmed that he does not follow medical direction if he considers it unnecessary or inappropriate. QW has a thyroid condition which requires ongoing monitoring and medication. The management of this condition was discussed at length at
(Page 6)
- the 4 August hearing. Discussion at the current hearing indicated that there may still be some concerns that this condition is not being managed appropriately, in that QW may not be taking her medication on a regular basis.
21 The applicants raised the issue of the need for services to ensure that QW has adequate supervision and meals provided. Currently QW spends long periods at home alone while her husband works. MW stated that he did not see the need for such services and made it clear from his comments that he did not understand or accept the significance and impact of his wife's disability on her coping skills.
22 Other issues of concern raised in the hearing included the fact that QW has not, as agreed in the previous hearing, been attending a designated day activity centre. MW said that QW does not wish to attend the centre. It was pointed out that QW had been deemed, in the previous hearings, to be a person who no longer had the capacity to make reasonable decisions for herself about such things and was dependent on others for support and guidance in such matters. Other parties at the hearing disputed the accuracy of MW's information about this matter and pointed out that when visited in her home, QW had agreed to go to the day centre. Also the daughters had offered to make the arrangements and take their mother to the day care centre if necessary but MW chose not to take them up on this offer.
23 At the hearing on 4 August 2006, it had been agreed that there was no need for a guardianship order as the granddaughter VJ would act as a go between to ensure that the conflict between MW and the daughters of QW did not prevent her from receiving appropriate services and having contact with all members of her family. It appears from information provided at the current hearing that this system had not been working well, and as a result QW was missing out on necessary and appropriate services, medical care and contact with her daughters and extended family.
24 There was some discussion about who was best placed to take on the role of guardian, taking into account the need to be able to work with MW. Both the daughters and the granddaughter proposed themselves to take on the role of guardian.
(Page 7)
Legislation
25 Section 43 of the Guardianship and Administration Act 1990 (WA) (the Act) provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
"(a) has attained the age of 18 years;
(b) is –
(i) incapable of looking after his own health and safety;
(ii) unable to make reasonable judgments in respect of matters relating to his person; or
(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
(c) is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian…"
27 Section 44(1) of the Act requires that before appointing a person as a guardian the Tribunal must be satisfied that the person:
"(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."
28 Section 44(2) of the Act requires the Tribunal, in appointing a guardian, to take into account, as far as possible, the desirability of preserving existing family relationships, the compatibility of the proposed appointee with the proposed represented person and with the administrator (if any), the wishes of the proposed represented person and whether the proposed appointee will be able to perform the functions proposed to be vested in the guardian.
(Page 8)
29 The principles to be observed by the Tribunal when making determinations in relation to guardianship orders are set out in s 4(2) of the Act.
30 These principles are:
"(2) (a) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b) Every person shall be presumed to be capable of ¾
(i) looking after his own health and safety;
(ii) making reasonable judgments in respect of matters relating to his person;
(iii) managing his own affairs; and
(iv) making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c) A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d) A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e) An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the
- circumstances on the person's freedom of decision and action.
- (f) In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions."
31 Section 51 of the Act ensures that a guardian acts in the best interests of QW.
Findings and reasons
32 In making a decision as to whether an order can be made, the Tribunal must be satisfied, in accordance with s 43 of the Act, been defined as "the Act", that the person does not have the capacity to look after their own health and safety or to make reasonable judgments in respect of matters relating to their person and that they are in need of oversight and care by others. In this case the capacity question had been resolved in the previous hearings where written medical and paramedical evidence, along with evidence provided by the parties at the hearing, confirmed QW's lack of capacity to make reasonable judgments for herself in respect of any aspect of her life.
33 In relation to s 44(2) of the Act, the Tribunal accepted the evidence of the daughters, the granddaughter and in fact MW himself, that MW, rather than supporting QW in maintaining her relationships with her family, particularly her daughters, had, by his behaviour and by his own admission, compromised these relationships by making it difficult for the daughters to maintain regular contact with QW.
34 Further, the Tribunal found the evidence of MW to be unreliable. He provided evidence to the Tribunal that, because he did not have a mobile telephone he was unable to provide a contact number for the daughters to maintain contact with QW while on the proposed interstate trip. This evidence was refuted by VJ who said that MW had informed her that he had a mobile phone but it was for her use only, not for the daughters to use for contact with QW. The Tribunal found that MW used his control over the contact between the daughters and QW to persuade the daughter to withdraw her complaint about an alleged assault. Clearly MW was not
(Page 10)
- acting in QW's best interests when preventing contact between QW and her daughters.
35 The Tribunal was satisfied that there is a need for a guardian to be appointed to ensure that QW receives necessary medical and paramedical care and services. MW acknowledged in the hearing that he did not always follow through with medical advice on behalf of QW if he did not feel it was correct advice. The Tribunal might have been reassured if MW had indicated that he would seek a second opinion if he disagreed with a medically prescribed course of action, but for him to ignore medical advice because he did not agree with it is not considered to be in QW's best interests.
36 Given the fact that she has a dementing illness which is likely to be progressive, decisions will need to be made about suitable future accommodation for QW.
37 When addressing the issue of who should be appointed guardian, the Tribunal was guided by s 44(1) of the Act in deciding to appoint a guardian who will act in the best interests of QW and who is not in a position where their interests conflict with the interests of QW. Evidence provided in the hearing by various parties, including MW, was that MW's highly conflictual relationship with the daughters influenced his decisions in respect of contact between QW and her daughters, his lack of insight into the degree of cognitive dysfunction QW suffers is displayed in his statements that QW does not want or require the recommended services and medical treatment and puts her at risk in a number of ways. Similarly, it is likely that MW will not recognise the need for dementia-suitable accommodation for QW in the future.
38 QW, because of her level of cognitive dysfunction is dependent on others for her safety and welfare and as her illness progresses will become more dependent and vulnerable. The Tribunal found that MW had not acted in the best interests of QW in many of the decisions he had made in relation to her safety and welfare and in some cases had, in fact, put her safety and welfare at risk. The Tribunal found that MW was not a suitable person to act as her guardian and to make decisions in respect of her current or future care and welfare needs.
39 On the evidence before it the Tribunal found that the daughters understand QW's medical, safety and care needs and if appointed guardians would generally act in QW's best interests. The Tribunal considered the level of conflict between the daughters and the husband
(Page 11)
- was such that their appointment would be unworkable and not in QW's best interests as it was likely to further compromise family relationships.
40 In considering VJ's proposal that she take on the role of guardian, the Tribunal found that her position as the family go between gave her the best chance of making informed decisions in QW's best interests.
Decision
41 After considering all the evidence provided in the written reports and at the hearing, the Tribunal was satisfied that QW is a person for whom an order can be made and that her granddaughter, VJ, was the person best placed to make decisions in QW's best interests. The Tribunal made an order that the granddaughter, VJ, be appointed with the following decision-making functions:
(1) to decide where the represented person is to live, whether permanently or temporarily;
(2) to decide with whom the represented person is to live;
(3) subject to Div 3 Pt 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person;
(4) to determine what contact, if any, the represented person should have with others and the extent of that contact; and
(5) to determine the services to which the represented person should have access.
42 This order is to be reviewed by 1 November 2011.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER
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