| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RC [2014] WASAT 25 MEMBER : MR M ALLEN (SENIOR SESSIONAL MEMBER) HEARD : 17 AND 23 DECEMBER 2013 DELIVERED : 23 DECEMBER 2013 PUBLISHED : 27 FEBRUARY 2014 FILE NO/S : GAA 3913 of 2013 MATTER : RC Represented Person and Applicant
Catchwords: Guardianship and administration - Review of guardianship and administration orders - Represented person with history of alcohol abuse and acquired brain injury - Recent improvement in cognitive capacity - Consideration of whether represented person remains unable to make reasonable judgments concerning her financial and personal affairs - Present guardians and administrator unwilling to continue to act - Conclusions that represented person continues to be a person for whom guardianship and administration orders could be made and that she continues to need a guardian and administrator - Appointment of Public Advocate and Public Trustee respectively with directions regarding trial of represented person living away from her current place of residence - Orders to be reviewed in six months Legislation: Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43, s 44(5), s 64, s 86 Result: Guardianship and administration orders revoked and new orders substituted therefor
Summary of Tribunal's decision: The Tribunal reviewed guardianship and administration orders concerning a 60-year-old woman with a history of alcohol abuse and acquired brain injuries. The administration order was first made in 2003 and the guardianship order was made in 2011. The represented person's brother and sister were her limited guardians with power to make decisions regarding accommodation, treatment and services, and the represented person's sister was the plenary administrator. The brother and sister were initially willing to be reappointed to these roles but were ultimately not willing to be reappointed.
Since late 2012 the represented person had lived in a dementia-specific, secure part of a nursing home and was keen to move from there and to return to her own home. The guardians considered that any trial of the represented person living independently, even with extensive support services, would inevitably fail and that the represented person should continue to live in the nursing home, albeit no longer in the secure section.
The Tribunal considered the extensive medical and other evidence regarding the represented person's cognitive and functional abilities over the years when orders were in place, as well as recent evidence regarding considerable improvements in those abilities that had recently been observed. The Tribunal concluded that, notwithstanding those improvements, the represented person's understanding of, and ability to manage, her own financial and personal affairs, particularly in relation to organising and managing a trial of independent living, were superficial and could not be relied on. This was particularly so, given the risk of the represented person resuming abuse of alcohol if she were to leave the supported environment of the nursing home.
In the light of the unwillingness of the brother and sister to be reappointed, and in the light of the Tribunal's views regarding their suitability, the Tribunal appointed the Public Advocate and Public Trustee as guardian and administrator respectively, with directions regarding consideration of a trial of the represented person living away from the nursing home in which she currently resides.
The orders are to be reviewed in six months, by which time the position should be clearer as to whether the represented person would be able to remain abstinent and maintain the improved cognitive and functional abilities that have recently been observed - and whether the trial of independent living (with support services) has been successful.
These reasons were delivered orally on 23 December 2013 and have been edited from the transcript.
Category: B
Representation: Counsel:
Represented Person and Applicant : Mr S Blyth
Solicitors:
Represented Person and Applicant : Lewis Blyth & Hooper
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 These proceedings concern RC, who is a 60-year-old woman. RC has been the subject of various orders under the Guardianship and Administration Act 1990 (WA) (GA Act) since 2003. The current proceedings involve the review of an administration order made on 30 November 2012 and a guardianship order made on 17 November 2011. They are reviews under s 86 of the GA Act on RC's application. Before I consider the issues involved in the reviews, I will briefly outline the history of the various orders in this Tribunal and in its predecessor concerning RC.
Background 2 The first order, made in March 2003, was an administration order made on the application of RC's mother, SG. RC's two siblings - her sister (MSG) and her brother (MG) - were appointed as plenary administrators. RC had suffered brain injuries as a result of a fall and had a history of alcohol abuse. She was described as being significantly cognitively impaired, with memory and decision-making impairments. A neuropsychologist, Ms V, noted particularly that memory and executive functioning were impaired, as was insight and her ability to foresee difficulties. 3 That order was reviewed for the first time in August 2005 when the administration order was confirmed with MG and MSG as plenary administrators, except that RC's pension and wages were to be managed by her. At that stage, RC was living alone, and it appears she was in receipt of a disability support pension as well as doing some part-time work. It was noted that she needed assistance regarding complex financial issues. 4 The administration order was next reviewed by the Tribunal in June 2007 on the application of RC, and the order was changed by the Public Trustee replacing MSG and MG as RC's administrator for all matters, except in relation to her pension, wages and the interest earned on a bank account of $100,000. The order was changed in that way because it was said that it was causing anger and antagonism within the family. Dr C, who was RC's general practitioner at the time, recorded that he thought RC was partially capable of making financial decisions for herself, and she was, at that stage, abstaining from alcohol. 5 There was then a gap of almost four years before the Tribunal considered matters concerning RC again in April 2011. That was an application made by the Public Trustee, who sought a review of the administration order because the order was expressed as a plenary one and the Public Trustee thought it may be preferable to have a limited order because of the way the Public Trustee's fee structures worked. At that time, Dr C reported that RC suffered from a frontal lobe syndrome as a result of her head trauma; there was a hydrocephalus shunt in place; she suffered from Korsakoff's syndrome relating to alcohol abuse and from grand mal epilepsy; and that she was able to make some decisions with prompting and guidance. 6 Dr K, who is a neurologist, noted at the time that RC was drinking heavily and that she needed to be in a hostel. RC, at that stage, expressed a preference for her brother, MG, to be her administrator, and as a result MG was appointed as plenary administrator. 7 The administration order was next looked at five months later when there was an application by RC for review of the order. It appears from the records - and this was the basis of the eventual decision - that what RC was really looking for at that stage was not a change of administrator, but to get access to more funds. 8 RC supported MG continuing as administrator. A report from a social worker at the State Head Injuries Unit (SHIU) at the time referred to RC lending money to her then boyfriend. There were concerns expressed about her being sexually exploited, and reference was made to her needing money for alcohol. It was reported by the SHIU that RC suffered from impaired executive functioning and a lack of insight into her condition, and it was also noted that she was independent in her self-care at that time. 9 In November 2011 an application was heard for a guardianship order. This application was made by MG and MSG on the basis that they believed that RC needed supervised accommodation, that she was making inappropriate decisions and was being exploited sexually and financially, and had overall poor self-management. It was also apparently the case that RC, at that stage, was making frequent (usually unnecessary) visits to hospital by ambulance. Dr C reported that in his view RC needed a supportive environment in which to live, but one that was in the community. He noted continuing alcohol abuse and epileptic seizures, and noted also that RC's mental state and capacity to make decisions fluctuated according to her level of intoxication. 10 A report was provided at that time from a clinical psychologist of the SHIU, and was to the effect that RC had a significant impairment in relation to comprehension, reasoning, retaining and manipulating information, and that she had significantly weakened executive functioning. The results of cognitive testing were said to be consistent with prior testing that had been done over the years, and noted that there had been a deterioration in RC's cognitive abilities since 2002. Her reasoning and problem-solving skills, as well as her insight into her needs and conditions, were described as very fragile. 11 The result of that application was that MSG and MG were appointed as RC's guardians with power to make decisions regarding accommodation, treatment and medical services. 12 The matter was next in the Tribunal in August 2012, this time on an application for review of the administration order by the Public Trustee. The Public Trustee applied to the Tribunal for review because the accounts that were to be lodged by the administrator - MG at that time - had not been lodged and it was therefore necessary to review the order. RC's family opposed the appointment of the Public Trustee at the time, but the decision of the Tribunal was, in August 2012, that the Public Trustee should again be appointed, this time as a plenary administrator. 13 That decision, being made by a single member of the Tribunal, was reviewed by a Full Tribunal in November 2012. It appears that that started out as a review under s 17A of the GA Act, but it seems to have been dealt with as a review under s 86 of the GA Act; I do not think that matters. The result of the review was that the Public Trustee's appointment was revoked and MSG was appointed as the plenary administrator with authority to make gifts on behalf of RC of up to $1,000 per annum. In addition, MSG, as administrator, was given authority to allow a family member to occupy RC's home at less than full market rental - an arrangement that could continue for as long as the administrator thought it was proper and reasonable, having regard to RC's wishes and needs and to the circumstances and value of her estate. 14 RC supported MSG's appointment as the administrator. It was noted at that time that RC was residing at a nursing home in dementia-specific secure accommodation, that she was alcohol free, and that it was hoped and expected that she would be able to return to her home at various times for visits, notwithstanding that she was living at the nursing home. The ability of the administrator to allow a family member to live in RC's home was intended to facilitate these visits.
Current application 15 The current application is a review at RC's request of the guardianship and administration orders, and it seeks revocation of both orders on the basis that RC has been abstinent for some time, there is medical evidence of her previous disabilities having little or no impact now on her cognitive functioning, and her desire to leave the nursing home. 16 When dealing with applications of these kinds the Tribunal must observe the principles that are set out in s 4 of the GA Act. In summary, these principles are to the effect that the Tribunal's primary concern is to be RC's best interests, that RC is to be presumed capable of looking after her own health and safety, of making reasonable judgments concerning matters relating to her person, of managing her own affairs, and of making reasonable judgments in respect of matters financial, unless and until the contrary is proved to the satisfaction of the Tribunal. 17 Other principles that are set out in s 4 of the GA Act are that orders should only be made if RC's needs cannot be met in less restrictive ways, that any orders that are made should impose the least restriction on her freedom of decisions and actions, and that the Tribunal should seek as far as possible to ascertain RC's views and wishes as expressed now or as can be gathered from her previous actions. I have approached my task bearing those principles in mind, and I will deal with the guardianship order first.
Guardianship order 18 The guardianship order can be made or continued only if the requirements of s 43 of the GA Act are satisfied. In summary, they are that the Tribunal must be satisfied that RC is either incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person, or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others and, in addition, is in need of a guardian. In order to address these requirements it is necessary for me to consider all of the evidence currently available regarding RC's ability to make decisions and to manage her personal affairs, and to care for her own health and safety. 19 I note the various reports that have been referred to above in the outline of the history that I have just given, and I take from those past reports that there was, if anything, a deterioration in RC's functioning - particularly executive functioning - between 2002 and 2011. Against that background I have to consider the current evidence, which paints a somewhat different picture. 20 Dr RG, who is a consultant neurologist, provided a report to the Tribunal. He appears to have seen RC only the once - in August 2013. He noted an epileptic seizure in September 2012 that resulted in RC being admitted to Royal Perth Hospital for six and a half weeks, and during that time there was a supervised withdrawal from alcohol. 21 Dr RG noted that there appears to have been a very significant improvement in RC's cognitive functioning, as evidenced by a score on a mini-mental state examination of 30 out of 30. Dr RG suggested RC see Dr JK, who is a consultant geriatrician, and that she should then see Dr RG again, although there is no evidence before me that that subsequently happened. Dr RG observed that the current orders now seemed very inappropriate. 22 Dr JK saw RC in March and October 2013. He visited RC at the nursing home, and he noted that RC seemed to be able to leave the locked area, but that she made no attempt to. Dr JK noted that RC acknowledged that the guardianship order had been put in place when she had been at 'a low point in her life', but that she needed prompting to acknowledge that this low point related to excessive alcohol use. RC was able to discuss various options for her future living arrangements, and it was clear that she did not want to stay at the nursing home. Dr JK thought that her description of the options that might be available, and how she could organise things away from the nursing home, seemed plausible. 23 Dr JK thought that RC appeared to understate the severity of her alcohol addiction in the past and the damage it had done. RC also tended to reduce her responsibility for drinking, blaming others for it. Dr JK undertook what is called a Montreal Cognitive Assessment in which RC scored 29 out of 30, which compared very favourably with a score of 15 out of 30 on a mini-mental state examination test six months earlier. He noted that RC performed the executive functioning components of the test very well. Dr JK also administered a test called a quick mild cognitive impairment (QMCI) test in which RC scored 54 out of 100 - a figure that was said at the hearing by Ms SE - to whom I will refer in a moment - as indicating a moderate cognitive impairment. 24 There was no explanation provided to me as to why there might be differing results for those somewhat similar tests, although Ms SE (who is an aged care assessor who works with Dr JK) did record that one of the reasons the QMCI test was used was that it was possible for some people to learn the questions involved in the mini-mental state examination tests. Dr JK concluded in his report to the Tribunal that there had been a significant improvement in terms of objective cognitive testing and, it seems, RC's functioning around the nursing home. He believed that RC was now capable of making decisions regarding her place of residence, although that clearly depended on her continuing abstinence. 25 Regarding her capacity concerning financial matters, Dr JK noted that although RC's discussion regarding her financial affairs was reasonably accurate, he had some concerns regarding the risk of exploitation, despite the improvements that had been observed over the six months. He suggested that the administration order should stay in place for three to six months to see if RC could manage away from the supportive environment of the nursing home, whether her cognitive improvement would continue, and whether she could stay off alcohol. 26 Dr JK thought that although it was now inappropriate for RC to be in a dementia-specific unit of a nursing home, that was an appropriate placement when he first saw her in March 2013 due to her cognitive impairment and her very poor judgment and insight at the time. I pause to note that no reports were provided to the Tribunal from RC's current general practitioner, Dr K, or from the staff or management of the nursing home, and I observe that that is a pity because those people could have perhaps provided information from a different perspective. 27 Dr JK and Ms SE also gave oral evidence to the Tribunal at the hearing on 17 December 2013, the main points of which were that Dr JK had only seen RC twice - in 2013 - and had not seen the various reports and assessments of her from previous years, and that there had been a significant improvement between March and October 2013, such that the idea of her living at home again was now more realistic. Dr JK's main concern was that RC may go back to alcohol, which would erode the gains that had been observed very quickly. Although RC's description of financial matters seemed plausible, he still thought that it was best to leave the administration order in place for a time to show that RC could manage. 28 Dr JK considered that RC had not appreciated, and still did not appreciate, how bad she had been at her worst in terms of the degree of impairment and her vulnerability. He thought this might be due to her poor memory of what things were like at the time. He said that RC did appear to recognise that alcohol is a danger, but he was not sure that she realises how bad things could be if she drank again. He thought that any exploitation of her was likely to be from people that she knew and trusted, rather than from strangers. He considered her capable of making treatment decisions for herself. 29 Dr JK thought that RC could organise her day-to-day decisions and arrangements but that she may need help with anything more complicated. He noted that many people with all their faculties would need help navigating their way around aged care service arrangements. Ms SE noted that help is available to arrange these services in any event, and that the recent ACAT assessment of RC had approved level 3 or 4 home care services, which would give her an entitlement of about 10 or 12 hours per week. Ms SE also noted that RC would have an entitlement to spend up to 52 nights a year away from the nursing home without losing her placeif a trial for her to live away from the nursing home was organised. 30 There was some uncertainty at the hearing whether this could be 52 consecutive nights or had to be in shorter blocks; no evidence was put before me to resolve that uncertainty, but I consider it likely that RC could spend at least considerable periods away from the nursing home with a properly conducted trial. 31 The Public Advocate provided a written report to the Tribunal which concluded that there was a need for a continued appointment of a guardian for RC with decision-making regarding accommodation and services, and to advocate on her behalf. This view, it seems, was arrived at after speaking to RC, nursing home staff, Ms SE, and to a staff member of an organisation called Melville Care, which has provided RC with some assistance in the past. The view was based on an assessment that RC's cognitive deficits would mean that she could not navigate through all the arrangements that would need to be put in place if she were to return home to live independently or, indeed, if she were to live anywhere else outside the nursing home, albeit with support. 32 At the hearing on 17 December 2013, the Public Advocate's representative adopted a different stance regarding the guardianship order, taking the view that none of the criteria in s 43 of the GA Act were satisfied and that, even though there may be some residual cognitive deficits for RC, it now appears that she has sufficient cognitive ability and there appears to be sufficient support around for her to make a guardianship order unnecessary. The Public Advocate's view was that RC's current placement in the dementia unit was inappropriate, and she considered that a trial of RC living outside that facility with supports was appropriate. 33 RC's siblings, MSG and MG, and her mother, SG, all attended the hearing. They all emphasised in various ways the following main points: • RC's alcohol addiction was of long standing - up to 25 years - and predated her brain injury in 2002; • the brain injury and the alcohol had had a devastating effect on RC's ability to look after herself and live independently, but RC did not seem to appreciate this; and • the family had had to pick up the pieces continuously over the years and, although they wanted RC to recover her ability to live independently, they were pessimistic about her ability to remain abstinent outside the very structured environment of the nursing home. 34 Although they all agreed a dementia-specific unit was not now appropriate, it had been so until mid-2013. RC's name was on the waitlist for a place in the high care part of the nursing home that was not locked, and they thought a placement of that kind was most appropriate for her - and that she should stay where she is until a place in that area becomes available. Any trial of RC living outside the nursing home would, in the family's view, inevitably fail. MSG said that she had looked at possible places for RC to live short-term - such as short-term serviced apartments or motel apartments - but nothing suitable was available. 35 MSG regarded a trial of RC moving back to her unit with services as the least attractive option, because it would inevitability fail and it would involve MG (who has lived in the unit since early 2013) having to move out of that property. 36 At the hearing of 17 December 2013, MSG and MG said they considered that they should continue as RC's guardians. However, at the hearing on 23 December 2013 they both advised that they were no longer willing to act in that role. 37 RC herself said that she was now a changed person; she realised that she had caused problems for her family in the past, but she would not go back to alcohol.
Assessment of guardianship order 38 I turn then to my assessment of the situation regarding the guardianship order. At the outset, I should record that I accept and acknowledge that RC's family has shouldered a very heavy burden for a long time. I accept their views that RC's condition in the past and leading up to her admission to the nursing home in late 2012 was very bad, and that they had to try to deal with it. Because of their firsthand knowledge of the past and their role in helping RC over the years, I must place weight on their views and respect their opinions; however, I need to remind myself of the fact that it is RC's best interests that I must have as my primary consideration. 39 It is very clear that for at least a decade since her injury in 2002 RC's condition and cognitive abilities declined. As late as March 2013 her disabilities were such that the professionals involved in her care considered the only appropriate placement for her was the dementia-specific locked unit. Equally clearly, there has been a major improvement in RC's cognitive functioning in the past six months, in the opinion of at least the medical professionals that I have heard from. RC has been very clear in relation to guardianship matters that she considers herself to be entirely capable of making all decisions for herself, and she sees no need for, or value from, a guardianship order. 40 RC's desire to leave the nursing home and return to independent living seems to me to be entirely reasonable, and it would seem justified at the present time. The issue of accommodation has been the major area that the guardians have had to address. With one exception - which I will return to in a moment - RC's presentation at the hearing was consistent with what seems to have been the case when she saw Dr RG and Dr JK recently. RC was, for the most part, logical and coherent, and she demonstrated a good memory for at least recent events and details of financial matters. 41 If anything, I gained the impression that RC focused mainly on the details rather than on the bigger picture and her long-term needs. I am conscious, however, that what I am seeing is a somewhat artificial view of RC at this particular point in time, in that it is after just over a year of living in a highly structured and supported environment in which her opportunities to consume alcohol are very limited - although I accept that she has had some opportunities to do so, and has, on the evidence, not faltered. I am also conscious that RC's presentation at the present time could dramatically alter if she were again to drink alcohol. I am sure, as Dr JK observed, the cognitive and functional gains that RC has achieved could be very quickly eroded if she drank to excess again. 42 On her history - and despite her conviction that she will not - there must be a substantial risk that she will return to alcohol. At the end of the day, I was left with a firm view that RC's ability to discuss her views and wishes and the options and plans that she may have was, to a significant degree, superficial. I was not convinced that she does fully appreciate how greatly her functioning was impaired in the past. For example, at the end of the hearing, RC still maintained as a justification for her desire to return home that she had never really needed to go to the nursing home and that she could have stayed at home. 43 To maintain that view in the light of her improved cognition and in the knowledge of the views of the professionals who are otherwise quite supportive of her suggests to me that RC's understanding of, and insight into, her position now and in the past remains shallow. It seems to me that that limited understanding and her natural desire to leave the facility may result in her making less than reasonable and fully considered decisions about her options in her haste to move. 44 In addition, I consider that RC's answer to the question of what she would do if she was not subject to a guardianship order so that she could decide for herself where to live to be somewhat superficial. RC's response was to say that she would call a removal truck to remove her belongings to her home. When asked whether it would not be necessary to organise for MG to vacate the house and how she would organise that, she said she would engage a local real estate agent to arrange for her brother to go. In a similar vein, it seemed to be that she did not appreciate what she would need to do to organise support services and how long that might take, even with the help that is available for her, before she could realistically hope to move into her home, quite apart from, as MSG said, organising furniture to be acquired and moved in, as there is currently little or none that she could use. 45 I am satisfied that in an intellectual sense RC can participate in and even make some decisions about her future accommodation and living arrangements. She will, in my view, need considerable assistance to identify all the options, weigh up their pros and cons and decide which would best suit her needs. All involved in the hearing, with the exception of RC, spoke of the need of a trial of her living outside the nursing home. My concern is that RC will not want to pursue any move other than that to her own home, and she will not see it as a trial but rather as a permanent state of affairs. 46 On balance, and not without some reservation and notwithstanding the views expressed by Dr RG and Dr JK and the Public Advocate's representative, I am reasonably satisfied that RC is not presently able to make reasonable judgments about certain matters concerning her personal affairs, specifically in relation to short-term and long-term accommodation and the services she will undoubtedly need to have if she is to have a realistic chance of living independently. RC appears not to have resisted accessing services in the past, or be likely to do so in the future, but that is not the same thing as identifying her service needs and organising them. Whether 10 to 12 hours per week through the ACAT services would be sufficient - or, as MSG observed, much greater services will be needed - remains to be seen. 47 Even if I am incorrect in reaching that view about RC's ability to make reasonable judgments, I have also concluded that having regard to RC's history and her vulnerability, and especially to the substantial risk of her returning to alcohol, I consider RC to be a person who is in need of oversight, care and control in the interests of her own health and safety. Any move by RC, whether as a trial or otherwise, from her current accommodation to more independent living, even with supports, will be a very difficult and testing time for her. She should not, in my view of her best interests, be expected to face that difficult time without decision-making support. 48 I do not need to reach a conclusion regarding RC's ability to look after her own health and safety, which is one of the other possible grounds for making a guardianship order, but I observe that the evidence seems to be that she is physically independent regarding her own care, perhaps with some prompting. As regards the need for a guardian, I have concluded that RC does not need a guardian to make treatment decisions for her. Although it appears the current guardians have made some treatment decisions in the past, it seems to be the case that RC has made some decisions for herself in recent times, and I accept Dr JK's assessment that she is now capable of doing so. 49 My conclusion is, therefore, that RC needs a guardian to make decisions for her in relation to accommodation and services. I should add that I would expect any guardian to involve RC in decision-making to the greatest extent possible. She also needs, in my view, a guardian to do some other things for her; in particular, to obtain information from any source that may hold it, including confidential information, and also to advocate generally for her with any organisation that she may need to deal with in relation to any aspect of her welfare.
Appointment of a guardian 50 I turn now to the question of who should be appointed as RC's guardian, noting that on 17 December 2013 MG and MSG were willing to continue in that role but are not now so willing. In any event, RC opposed their appointment and preferred the Public Advocate to be appointed if she must have a guardian. The Public Advocate cannot be appointed if I were to consider MG and MSG, or one of them, to be suitable for appointment: s 44(5) of the GA Act. Although MSG and MG are no longer willing to be appointed as guardians, in view of their willingness on 17 December 2013, I have considered the question of whether they could be considered suitable to be appointed. I have concluded that they are not suitable to be appointed and I will record my reasons for that conclusion. 51 Firstly, RC is opposed to MG and MSG's appointment and would prefer a person from outside the family. She believes - and I accept - that the roles played by MG and MSG as guardian and administrator over the years has damaged the relationship between RC and her family. Preserving existing relationships within a family is a key factor regarding suitability of appointees, and I believe that I should do all I can to assist RC in this regard, although it would seem from what I heard when delivering these reasons on 23 December 2013 that the damage may have been done and it may or may not be reparable; I hope that it will be. 52 Secondly, it was clear from their evidence that MG and MSG do not favour a trial of RC living at home. I have no doubt that is largely due to their pessimism about such a trial, but I also consider that at least part of their objection to the trial is that it would require MG to vacate RC's home unit in which he has been living since January 2013 at a below market rental. I will return to the position regarding the home below. As a result of their views opposing a trial, I consider that MG and MSG would not be able to bring objective minds to bear on such a trial - or indeed a permanent move home - and whether that might be in RC's best interests. 53 I consider this lack of objectivity to be demonstrated by the attempts made to date to find RC supportive accommodation in a serviced apartment or a motel rather than embracing the option of her trialling it in her own home, an environment that she knows and wants to be in. 54 I have concluded, therefore, that the Public Advocate should be appointed as RC's limited guardian with functions to make decisions about accommodation and services, obtaining information from any source and advocating generally on behalf of RC with any organisation regarding her welfare. 55 In addition, I propose to make a direction to the guardian that the guardian is to consider whether there should be a trial of RC living away from her current place of residence for a period that the guardian considers appropriate, and if it is thought appropriate, making all the necessary arrangements for such a trial. The guardianship order should be reviewed within six months. By then it should be possible to have considered and organised a trial of RC living away from the nursing home - if that is to happen, and for the success or failure of that trial to be apparent, and for the picture regarding RC's future accommodation needs and her ongoing cognitive state to be much clearer.
Assessment of administration order 56 I turn then to the administration order. Section 64 of the GA Act provides that an administration order can only be made or continued if a person such as RC is, by reason of a mental disability, unable to make reasonable judgments regarding all or part of her financial estate and, in addition, needs an administrator. It is apparent that on numerous occasions over the past decade the Tribunal has been satisfied on these matters in relation to RC. 57 A mental disability is defined in s 4 of the GA Act to include an acquired brain injury, and it is apparent, from reports over the years of imaging, that RC exhibits considerable evidence of organic brain damage, no doubt due to the trauma to her brain from the 2002 accident, her epileptic fits over the years and to her excessive alcohol abuse over a long period of time. I conclude therefore that RC suffers from a mental disability as defined. 58 The next question is whether there is a causal connection between that disability and any inability on her part to make reasonable judgments regarding her financial affairs. 59 In the past the Tribunal has accepted that RC's reduced cognitive abilities have resulted in her making poor decisions regarding finances and being exploited financially by others. RC believes now that she is fully capable of managing her financial affairs and, as I have noted above, she has plausibly explained those affairs to Dr RG and Dr JK and has demonstrated knowledge of the details of her bank accounts in these proceedings. RC's only complaint about the current administration order is that MSG did not support her wish to consolidate three bank accounts into a single account accessible via a debit card. 60 The current arrangement is that RC has three accounts: 1) An 'everyday' account that RC can access, which MSG tops up to $500 when required and which RC uses for day-to-day expenses and outings. RC said that in the past 12 months, approximately $7,300 had been deposited to this account as needed. 2) A savings account, currently with just over $22,000 in it, which RC cannot access, but which receives her pension and rent, and which MSG uses to pay nursing home fees and some other expenses for the home unit. 3) A term deposit with $73,000 in it, maturing in March 2014, to which RC has no access. 61 RC said that in the middle of 2013 she had wanted to terminate the term deposit and consolidate all three accounts into one account, because she wanted to be able to access that money through a debit card wherever she might be in the world. She wanted then - and still wants - to travel, and this would be convenient. She said she appreciated the need not to waste her money or fritter it away. RC appeared not to understand or appreciate that having all her funds in one account accessible by a card could facilitate theft or other exploitation of her, or wastage by her if she began drinking alcohol again. 62 Another issue regarding RC's possible vulnerability to financial exploitation was raised in the hearing. RC said she had loaned a friend $500 shortly before the friend went on a three-month overseas trip, even though the friend was said to have cashed in her superannuation to pay for the trip. It was by no means clear from RC's explanation why she loaned money to the friend, or why her friend needed to borrow from her, but she said the friend had signed an IOU, had now repaid $150 and would now pay the balance by instalments. No evidence was produced to verify any of that. 63 RC also said that she had loaned a neighbour, whose surname she did not know, $500 in 2012, but that he had now repaid that amount. Again, no evidence was produced to that effect. Once again I am left in considerable doubt about RC's ability to actually manage her finances, recognising, of course, that the current order means that she has the ability to control only a small part of her overall funds. I have no doubt that RC understands in an intellectual sense her financial affairs, bearing in mind her previous work as a bookkeeper working in a financial capacity for a large organisation. 64 What is by no means clear is whether RC's judgment about financial matters is reasonable. Her explanations of why she loaned money to her friend, and to the neighbour who she obviously does not know well, are not convincing. Similarly, the desire to cut short a term deposit with a plan that puts all of her funds at risk suggests either poor judgment or an incomplete understanding of the risks involved. I was also told by MSG that RC appeared to have been hoarding cash this year by withdrawing relatively large amounts of cash from her everyday account without any obvious need; this was not disputed by RC. 65 Regrettably, although I accept that RC understands the basic details of her finances and can speak plausibly about them, I am satisfied that at present she is unable to make reasonable judgments regarding her estate due to the residual effects of her cognitive impairment, and I also consider her to be vulnerable to exploitation, particularly if she were to resume drinking. I conclude that RC needs an administrator to manage her income - at the moment, pension and rent, although that may not continue if she moves to her home; to pay her nursing home fees and other expenses, although that may also change if she leaves the nursing home; and to invest her cash assets.
Who should be appointed as administrator? 66 At the hearing on 17 December 2013 there was a question in dispute as to whether MSG should continue as administrator or whether the Public Trustee should be appointed. Although, immediately prior to delivering these reasons on 23 December 2013, I was advised that MSG was no longer willing to be appointed as administrator, I will set out my reasons for the conclusions I have reached on this question. 67 Family members opposed the appointment of the Public Trustee on 17 December 2013, primarily on the basis of the cost of that service. During the hearing I asked Mr Blyth, who appeared for RC, to make inquiries of the Public Trustee to obtain an estimate of possible fees. It appears that on one quite likely scenario, those fees could total approximately $5,000 per annum or $100 per week. 68 RC said she thought that would be a price worth paying to have her affairs managed independently, which she favoured, because family involvement in managing her finances was damaging the relationship. I note such a fee would equate to approximately 5% per annum of RC's current cash assets. 69 With two exceptions, nothing has been presented to the Tribunal that suggests MSG's management of RC's finances has been inappropriate. Specifically, MSG's unwillingness to consolidate the bank accounts was entirely appropriate in the circumstances, in my opinion. 70 The first exception that I refer to relates to the letting of RC's home to MG. Originally the Tribunal granted MSG, as administrator, the ability to allow a family member to occupy the property on concessional terms because it was expected and planned that RC would and should be able to spend time at her home, which would make rental to a third party impossible, whereas a family member would be expected to facilitate those visits by RC. However, the terms of the order of 30 November 2012 made it clear that the arrangement could continue only for as long as the administrator considered it appropriate, having regard to the needs and wishes of RC and the circumstances and value of the estate. 71 That required the administrator to fix terms that provided flexibility in bringing the tenancy to an end if that were necessary. In my view, once it became apparent that RC would not be able to visit the home, which I was told was soon after she entered the nursing home, and particularly once it became clear that RC wanted to leave the nursing home and professionals such as Dr JK considered that to be reasonable - at least for a trial - it was incumbent on the administrator to consider terminating MG's occupancy to facilitate such a trial if it was thought appropriate. 72 Instead, although the lease was not produced, I was told that MSG had negotiated a lease with MG that ran until the next review of the administration order was due - in September 2016 - and involved only annual rent reviews and annual consideration of whether the tenancy should continue. MSG said this was the basis of the agreement in order to protect MG. There is, in my view, considerable reason to conclude that MSG may have put MG's interests ahead of those of RC's, and that would not have been in RC's best interests. 73 Fortunately, the annual review of MG's occupancy falls during January 2014 and MG said at the hearing he was willing to move out if asked. It may therefore be that no great harm has been done to RC's interests, and that her home may become available to her during January 2014 if a trial is to go ahead that involves her moving into the home. 74 The second exception that I refer to again concerns MG's occupancy of RC's home and which, in my judgment, also reflects somewhat adversely on MG; I refer to the irregular payment of rent. 75 MG was to pay $350 per week, but I was told by MSG that he had made one payment of $5,000, approximately in March or April 2013, and one of $7,500 in August 2013. MSG said originally that there was currently about $7,500 rent outstanding, but it was clear that she did not know the precise amount. For an occupancy of 11 months at $350 per week, with approximately $12,500 already paid, there should only be approximately $3,000 or, at most, $4,000 outstanding. In any event, there should be no rent outstanding; MSG should have ensured that MG paid rent regularly in advance rather than in arrears by large amounts. 76 The result is that RC has been financially disadvantaged by this arrangement. If this were a case of RC being permanently unable to manage her financial affairs with no expectation that she would regain that ability, I would have regarded these matters as sufficient to justify removing MSG as administrator. The fact is, however, that RC may be able to demonstrate in the next six months or so that she can live independently and can maintain or improve her level of cognitive functioning and her capacity to make decisions about all her affairs. There is, in other words, a possibility that by the end of six months an administration order will not be needed. 77 On the basis of MSG's initial advice that she was willing to continue to act as administrator, I had concluded that it would be appropriate to leave her as the administrator for that period of six months so as to avoid the appointment of the Public Trustee for a short period, which would expose RC to having to pay considerable fees. Although, as I have noted, RC says she is willing to pay these fees, it seems to me that it would not necessarily be in her best interests to do so. I had, therefore, intended to leave MSG as the administrator for that period of time, but in view of MSG's advice that she would not accept that appointment, I have no alternative but to appoint the Public Trustee for that period of time to manage RC's financial affairs. I will appoint the Public Trustee as RC's plenary administrator, but I will add a direction to the effect that the administrator must liaise with the Public Advocate, as RC's guardian, regarding any trial of RC living away from her current accommodation, and to facilitate any decision by the guardian including, if necessary, terminating the occupancy of RC's home by any family member in a timely fashion so as to permit RC to resume residence in her home on a short-term or long-term basis. 78 No reference was made at the hearing to the current provision in the administration order allowing gifts of up to $1,000 per annum on RC's behalf. I presume this means that RC is not unhappy with that provision, so I do not intend to change it, but I would observe that, in the circumstances, for the next six months it seems to me appropriate that no gifts should be made on RC's behalf without her agreement. 79 In summary, the administration order that currently exists will be revoked. The Public Trustee will be appointed as RC's plenary administrator with authority to make gifts and with a direction that I have just outlined regarding liaising with the guardian and facilitating any decisions by the guardian regarding occupancy of the home.
Conclusion 80 The administration order should be reviewed after six months at the same time as the guardianship order, by which time the picture should hopefully be much clearer. Hopefully, RC will be able to demonstrate that she has remained abstinent from alcohol and that she has maintained her improved cognitive state. She may well then be in a position where she will not need either a guardian or an administrator.
Orders 81 The following orders were made on 23 December 2013:
Guardianship 1. The guardianship order made on 17 November 2011 is revoked and a guardianship order in the following terms is substituted for it: The Public Advocate of Level 2, International House, 26 St Georges Terrace, 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) to determine the services to which the represented person should have access; (d) to obtain information from any source, including confidential information, regarding the represented person; and (e) to advocate generally on behalf of the represented person with any organisation or entity, whether government or private, in relation to any matter concerning the represented person's welfare. 2. The guardian is directed to consider whether the represented person should undertake a trial of living away from her current place of residence, on such terms and for such a period as the guardian considers appropriate, with a view to establishing whether the represented person should permanently leave her current place of residence. 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 23 June 2014.
Administration 1. The administration order of 30 November 2012 is revoked and an administration order in the following terms is substituted for it: The Public Trustee of 553 Hay Street, Perth, Western Australia 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). 2. The administrator is authorised to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person. 3. Subject to order 4 below, the administrator is authorised to allow a family member of the represented person to live in the represented person's property at [ … ] at less than full market rental. This arrangement can continue for as long as the administrator, having regard to the wishes and needs of the represented person and the circumstances and value of her estate, considers it proper and reasonable. 4. The administrator is directed to liaise with the Public Advocate as the represented person's guardian regarding any trial or permanent arrangement for the represented person to live away from her current place of residence on a short-term or long-term basis, and to facilitate any decision made by the guardian in relation thereto, including, if necessary, terminating the occupancy of the property by a family member in a timely manner so as to permit the represented person to resume residing at the property. 5. This order is to be reviewed by 23 June 2014. |