Re George & Hilda (Guardianship)
[2022] ACAT 68
•15 June 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
RE GEORGE & HILDA (Guardianship) [2022] ACAT 68
GT 157/2021 and GT 158/2021
Catchwords: GUARDIANSHIP – application for review of appointment – suitable person – suitability – conflict of interest
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 9, 31, 32
Court Procedures Act 2004 s 52B
Guardianship and Management of Property Act 1991 ss 5, 9, 10, 16, 19
Supreme Court Act 1970 s 84
Cases cited:Attorney-General v Wentworth (1988) 14 NSWLR 481
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
In the Matter of LQL [2018] ACAT 53
Tribunal:Presidential Member H Robinson
Member AM Delahunt
Date of Orders: 15 June 2022
Date of Reasons for Decision: 27 July 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) GT 157/2021
& GT 158/2021
RE GEORGE & HILDA
TRIBUNAL:Presidential Member H Robinson
Member AM Delahunt
DATE:15 June 2022
ORDER
The Tribunal orders that:
The orders under review, being the orders of 11 February 2022, confirming the appointment of [Sally] as guardian and manager, are reviewed and confirmed.
The Tribunal directs that where [Mark] seeks reimbursement for expenses he has incurred in relation to the care and treatment of the protected person, he must:
(a)Provide the Guardian, [Sally], with an original receipt, or a clear, and complete copy of the full original receipt (not a virtual photograph) in respect of each expense; and
(b)Provide a bundle of receipts to [Sally] on not less than a fortnightly basis;
(c)Include in the bundle a covering document that lists the receipts attached; and
(d)Leave the bundle at either the protected person’s home, or send by post or email to [Sally] at a nominated address.
Pursuant to section 32(2)(c) of the ACT Civil and Administrative Tribunal Act 2008, the applicant, [Mark] is directed not to make a further application for review of this appointment without the leave of the Tribunal. Leave may be sought by writing to the Registrar setting out the grounds upon which the review is sought,
including details of changed circumstances, and attaching any documentation to be relied upon at the hearing.
……………Signed…………..
Presidential Member H Robinson
for and on behalf of the Tribunal
REASONS FOR DECISION
This matter concerns two jointly heard applications for review of the appointment of a guardian and manager under section 9(1) of the Guardianship and Management of Property Act 1991 (GMP Act). The protected persons, George[1] and Hilda[2] are an elderly married couple. The current guardian and manager for both protected persons is their daughter, Sally,[3] who was appointed by a differently constituted tribunal on 21 December 2021. The applications for review were brought by the protected persons’ son, Mark,[4] who sought to have Sally removed as guardian and/or manager and himself appointed in her stead. The Tribunal heard the applications jointly on 6 June 2022 and delivered its decision on 15 June 2022. The Tribunal advised the parties that it would publish its reasons. These are those reasons.
Background
[1] The name George bears no resemblance to the protected person’s real name and is used for the purposes of confidentiality.
[2] The name Hilda bears no resemblance to the protected person’s real name and is used for the purposes of confidentiality.
[3] The name Sally bears no resemblance to the guardian and manager’s real name and is used for the purposes of confidentiality.
[4] The name Mark bears no resemblance to the applicant’s real name and is used for the purposes of confidentiality.
The protected persons are in their 90s. Both have lived long and full lives, but now have significant age-related health challenges. There is no dispute that they have impaired decision-making ability as per section 5 of the GMP Act and that they both require a guardian and manager to assist them to make decisions. The decisions that need to be made primarily relate to their health and welfare, including their treatment and care and where they are to live. The only question on review is who which of their children is better placed to assist them with that decision-making. It is not practical to appoint them jointly.
This is the third time this matter has been before the Tribunal. Sally was appointed as guardian and manager on 21 December 2021. On 29 January 2022, Mark sought review of the appointment. The appointment was confirmed by the Tribunal on 11 February 2022. The Tribunal gave written reasons on both occasions, and we have had regard to those reasons.
Mark sought this, the second review of the appointment of Sally as a guardian, by way of an application filed 22 February 2022. The second review application refers only to a review of the guardianship orders.[5]
[5] Because some issues arising in relation to the management orders were raised at the hearing the tribunal has, for completeness and on its own initiative, considered the management orders too.
The second review was initially listed before the tribunal on 25 February 2022. On that occasion, the Tribunal heard the parties, and then directed both siblings to attend a mediation. Unfortunately, the mediation was not successful. Evidence of what happened at that mediation is not admissible in these proceedings,[6] but we understand that the siblings agreed, in principle, to attend a mediation with a religious figure from within their community. This did not proceed. At Mark’s request, the matter was relisted for hearing.
[6] Court Procedures Act 2004, section 52B
At the hearing on 6 June 2022 both Mark and Sally appeared in person. Also in attendance for part of the hearing was Ms Emma Edwards, a social worker at the Canberra Hospital. There were no other witnesses.
Both Mark and Sally filed numerous documents, with Sally in particular filing a considerable number of emails in the days before the hearing. Most were correspondence between the siblings. We do not intend to list the documentation relied upon in full.
Additionally, Sally filed and served:
(a)A “Letter to Support Residential Case Placement” by Dr Muhammad Chaudry dated 6 June 2022 in relation to Hilda’s care and support needs (R1);
(b)A medical report for George prepared by Dr Ramasundara and Ms Stevens, Registered Nurse, dated 2 June 2022 in relation to George;
(c)Letter from Kapital Care to Sally, undated but filed 3 June 2022; and
(d)“Support material for Sally”, being an email from Joanne Latimer, Senior Manager Care and Clinical Services at Goodwin Care dated 11 May 2022 (Goodwin support letter).
Mark filed and served a statement by a family friend, Mr N, dated 4 June 2022.
Preliminary comments
The acrimony between the siblings was evident throughout the hearing. They agreed on very little, not even on how long they had been in dispute. The situation is a terrible shame, because there is absolutely no doubt that both siblings love their parents very much and wish to advance their interests, even if they differ in what those interests are. The antagonism between the siblings makes it impossible for this Tribunal to appoint both as guardians and/or managers. Unfortunately, we are left in the unenviable position of having to choose between them, or between them and the Public Trustee and Guardian (the PTG). It is therefore important that we carefully set out how we got here, and what our role is now that we are here. We will concentrate for now, on the role of guardian, because that is the more contested appointment.
As noted above, there is no question that George or Hilda require a guardian. We will therefore consider which appointment is appropriate.
The GMP Act, section 9, sets out who may be appointed as a guardian. It provides that:
9 Who may be appointed
(1)The public trustee and guardian or an individual may be appointed as a guardian.
(2)The public trustee and guardian, a trustee company or an individual may be appointed as a manager.
(3)A person may be appointed both guardian and manager, and people may be appointed jointly as guardians or managers, or both.
(4)The public trustee and guardian must not be appointed as a person’s guardian if an individual who is otherwise suitable has consented to be appointed.
(5)The public trustee and guardian or a trustee company must not be appointed as a manager of a person’s property if an individual who is otherwise suitable has consented to be appointed.
As will be discussed further below, the appointment of the PTG is only appropriate where there is no other suitable individual who consented to be appointed. As both Sally and Mark have consented, the PTG is not an option unless the Tribunal is satisfied that neither is a suitable person.
The considerations that apply when deciding who to appoint as guardian are set out in section 10 of the GMP Act:
10 Considerations affecting appointment
(1)A person must not be appointed as a guardian or manager unless the person consents in writing to the appointment.
(2)A person (except the public trustee and guardian or a trustee company) must not be appointed as a guardian or manager unless the person is an adult and has informed the ACAT on oath whether the person—
(a)has been convicted or found guilty of an offence involving violence, fraud or dishonesty; or
(b)has been, either in the ACT or elsewhere, refused appointment as a guardian or manager, or removed from office as a guardian or manager; or
(c)is bankrupt or personally insolvent (and, if so, has given particulars to the ACAT).
Note Bankrupt or personally insolvent—see the Legislation Act, dictionary, pt 1.
(3)Someone (other than the public trustee and guardian) may be appointed as a guardian or manager only if the ACAT is satisfied that the person will follow the decision-making principles and is otherwise suitable for appointment.
(4)For subsection (3), the matters the ACAT must take into account include—
(a)the views and wishes of the person (the protected person) for whom a guardian or manager is to be appointed; and
(b)the desirability of preserving existing relationships with family and any other carers; and
(c)whether the proposed guardian or manager is compatible with the protected person; and
(d)whether the proposed guardian or manager lives in the ACT; and
(e)whether the proposed guardian or manager will be available and accessible to the protected person; and
(f)the nature of the functions to be exercised under the order and whether the proposed guardian or manager is competent to exercise them; and
(g)whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests.
(5)The interests and duties of the domestic partner or a relative of a person must not be taken to be likely to conflict with the interests of the person only because of the fact of being the domestic partner or relative.
A differently constituted tribunal found that Sally was a suitable person to be appointed, having regard to the considerations in section 10 of the GMP Act., and confirmed that appointment on review. That previous tribunal had the benefit of speaking with both the protected persons, neither of whom were able to attend before this Tribunal.
What is a review under the GMP Act?
Section 19(1) of the GMP Act provides that the Tribunal may, at any time, on its initiative or on application, conduct a review of the appointment of a guardian or a manager.
19 Review of guardians and managers
(1)The ACAT may at any time, on application or on its own initiative, hold a hearing to consider—
(a)whether an order appointing a guardian or manager should be—
(i) varied; or
(ii) revoked on the ground that the need for guardianship or management no longer exists; or
(b)whether a guardian or manager should be removed under section 31.
…
We understand, from the context of the application, that Mark was asking us to consider removing Sally as a guardian pursuant to section 19(1)(b). Accordingly, we were required to consider section 31(1) of the GMP Act, which provides as follows:
31 Removal by ACAT
(1)The ACAT may, by order, remove a person appointed as a guardian or manager if it is satisfied that—
(a)the person is no longer suitable to be a guardian or manager; or
(b)the person is no longer competent to exercise the functions or powers of a guardian or manager; or
(c)the person has failed to exercise the functions or powers of a guardian or manager; or
(d)the person has contravened a provision of this Act.
…
As best we could tell, Mark’s position was that Sally was either:
(a)not a suitable person to be a guardian or manager; or
(b)had failed to exercise the functions of a guardian or manager, and accordingly that she should be removed.
Mark’s submissions
In support of his application, Mark raised concerns about the protected persons’ care, offering recounts of several incidents that he submitted were demonstrative of inadequacy in this. Some of these allegations were ventilated before the previous Tribunal. While we have had some regard to these, we do not intend to revisit them here. This is not an opportunity to have a ‘second go’ at already determined matters, and Mark did not raise any new information that would cause us to reach a different conclusion. The other allegations involve things that have happened since the previous hearing or which do not appear to have been fully considered at previous hearings. We have considered those matters in more depth. While we have not dealt with every allegation in these reasons, we have considered all the material in reaching our conclusions and detail our findings on the most significant ones.
Before setting out our findings, it is necessary to make some observations about the evidence before us, and particularly how Mark presented his application.
The Tribunal is not a Court. Tribunal procedures are intended to as simple, quick, inexpensive, and informal as is consistent with achieving justice.[7] To that end, the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.[8] It takes a flexible approach, particularly where the parties are self-represented.
[7] ACAT Act section 7
[8] ACAT Act section 7(b)
This flexibility does not, however, mean that ‘anything goes’. First, the Tribunal has an overriding obligation to ensure natural justice, which means parties must know the case against them and be given a fair opportunity to respond to it. Ensuring that parties are not surprised is one reason why directions are made requiring evidence to be filed in advance of the hearing. Neither party fully complied with those directions. Both filed documents in a haphazard manner. Some were incomplete - for example the Goodwin Support Letter was forwarded to the Tribunal without the original header information. Others were handed up at hearing. While some leeway is afforded to self-represented litigants, this was the third time this matter was before the Tribunal and both parties should have been aware of the Tribunal’s requirements. Compounding the situation was that, at the commencement of the hearing, Mark was unable to confirm with the Tribunal what documents he had filed or those documents he sought to rely upon at the hearing. Sally, fortunately, was more organised. We have done our best to ensure the file was complete, but with no index of documents, late documents and little clarity from Mark, it was not a straightforward exercise.
This is unfortunate, because while the rules of evidence do not apply in the tribunal, there is still a requirement that there be evidence that is relevant and probative before the Tribunal can made a decision. As was observed by Refshauge ACJ in Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [69]:
It was accepted that the ACAT is not bound by the rules of evidence. That, of course, does not mean that the Tribunal is able to accept and rely on any information, however unreliable it may be. A classic exposition of the position is the comment of Evatt J in R v War Pensions Entitlement Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 256:
But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer ‘substantial justice’.
Hence, while the Tribunal can and should be flexible, it may fall into error if it accepts as persuasive evidence, vague accounts of conversations, assertions of fact by persons not without firsthand knowledge of those facts, or opinions by persons not qualified to offer them.
Because of this, the way Mark presented his case was problematic. Mark gave lengthy and often impassioned oral testimony in which he spoke with fluency and conviction about his love for his parents, and his belief that they needed to be at home, with each other, enjoying his home cooked food and 24/7 home based family care. That he honestly believes that this is in his parents’ interests is not in doubt. However, there is a different between an honestly held opinion and a relevantly reliable one, particularly when it comes to matters that require expert knowledge. Mark’s views are clearly contrary to the documented medical evidence about his parents’ needs. Where we are required to choose, we preferred the opinions of the treating team, particularly where the basis for those opinions was clear and the medical practitioner’s qualifications apparent.
Mark also gave recounts of conversations he had with various persons, including his parents, his parents’ carers, and medical personnel, much of the time as a basis for concluding they were wrong. For the most part, what he proffered were not recounts of the words that were said, but rather summaries of what Mark considered those words to mean. Such evidence can be given little weight. In relation to one matter, he claimed to have a recording that substantiated his claims, but when played that recording established that a conversation happened, but not the substance of it. In relation to another, Mark asserted that his accounts could be confirmed by witnesses, but he did not provide witness statements from them. The Tribunal was not minded to ‘cold call’ witnesses, particularly in circumstances where, on Mark’s evidence, they were reluctant to provide witness statement because of the conflict inherent in this matter. Sally, on the other hand, filed medical reports and official documentation and statements from witnesses. The Tribunal considers such documents more reliable, and hence has generally preferred the documentary evidence she filed to the oral evidence of Mark.
Mark submitted that reliance upon written or professional opinions placed him in a procedurally unfair position, because Sally, as guardian, would not permit him to obtain the evidence he needed. Without drawing any conclusions, we agree this that Mark may have difficulties obtaining evidence. The Tribunal can order certain things be done where appropriate by direction under section 16 of the GMP Act. However, Mark did not seek such a direction, and nor is there any information before the Tribunal that would satisfy us that it is appropriate to make such a direction now.
The consequence of all of this is that Mark was not in a strong position to substantiate his submissions.
Turning to the substance of the matter, both siblings made numerous allegations against the other. Much of this played out in the emails filed with the Tribunal, which consist of claim and counterclaim and much aggressive language. Suffice to say, the siblings’ respective recollections of events are inconsistent and irreconcilable, leaving us with a situation where, for the most part, it was one person’s word against another. One example, amongst many, was the disagreement about Hilda’s dentures. Mark said that his mother’s dentures were lost for three months, over a period when Sally started caring for her at her house. He insisted that during these months, Sally negligently doing nothing. Mark claimed he eventually organised new dentures so that Hilda could eat again. He insisted on tendering a picture his mother without her dentures, but the photograph did not establish any fact in issue. It is unclear why he considered it relevant, other than to perhaps make his sister appear uncaring. In response, Sally explained that she was unable to arrange for new dentures during COVID-19, but claimed to have done so as soon as circumstances allowed once risks and restrictions eased. There was little in the way of objective evidence either way. Fortunately, we do not need to resolve these kinds of issues conclusively. We mention it only as one of many examples where the siblings ascribed to the other the most base or malevolent motivations. We think that most of perceptions can be better explained by a lack of trust and poor communication between the siblings and the complexities of dealing with aged parents during COVID-19.
We will now turn to the most contentious issues.
Accommodation
In terms of the medical decisions to be made, the independent medical and expert evidence in relation to Hilda is unequivocal. She requires full time nursing care that is not available in her home within the limitations of her aged care package[9]. Sally accepts this advice. Mark does not.
[9] See Exhibit R1, report of Dr Muhammad Choudhry
The position in relation to George is that he requires a degree of care, but there is no evidence to suggest that he requires a change in residence. He may wish to join his wife in care. Again, Sally was flexible on this, Mark was not.
Mark maintained that the only option was to keep his father at home, and his mother to return to live with his father in that home. He insisted that a combination of family assistance and the care package would be sufficient to keep both his parents at home, together, failing which the protected persons have assets that can be used to fund their care privately. He said, further that his wife is an aged care worker, and another family relative is available to assist. There is no information before the Tribunal as to the qualifications or experience of the other relative and she was not called to give evidence.
We were not satisfied that Mark’s approach was practical. We also shared the concerns of the previous tribunal that Mark did not accept that his parents’ needs were changing, and that they would likely require ever more increasing care. He appeared convinced, unrealistically, that if his parents were back at home they would improve. He rejected medical advice to the contrary. Indeed, when directly asked by the Tribunal as to whether he would ever accept medical advice that his parents cannot live at home, Mark answered, honestly, that he would never accept his mother going into care. His evidence was that separating his parents or placing them in care together will be detrimental to their wellbeing and may hasten their deaths. He spoke passionately of this. In particular, he suggested that his parents were in need of each other and preferred to be at home:
Mum will have no-one to talk to. Dad loves bossing Mum around all day long, you know.[10]
As noted above, while we do not doubt this evidence is an honest expression of what Mark understands his parents’ wishes to be, he appeared to have little insight into the risk being alone would pose to his mother, that her care needs may be different to his father’s, or that their needs have changed due to age and medical conditions. His answers did not give us any confidence that he would accept medical advice where that advice conflicted with his own views and preferences.
[10] Page 106
Relevantly for the review we are undertaking, there is nothing about Sally’s position that would appear to be unreasonable or suggestive of her failing to perform the role of guardian in an appropriate manner. In particular, she was respectful of her father’s wishes, and had appropriately weighed her mother’s wishes against the very real possibility that giving effect to any wishes to remain at home could significantly adversely affect her mother’s safety and welfare.
Care workers and COVID-19
The previous Tribunal expressed concerns about Mark’s approach to COVID-19 vaccination. The issue of vaccination has been resolved, and Mark is now vaccinated, but his failure to take precautions in relation to COVID-19 risk was further demonstrated by his actions while he was affected by COVID-19.
It is apparent from an undisputed timeline put to the Tribunal that Mark attended his parents’ house while affected by COVID-19 and while contagious. It is not in dispute that he had obtained an exemption from ACT Health to do so, ostensibly on the basis that his parents required care (and hence did not commit an offence by leaving isolation). However, on the day Mark attended his parents’ house, he did so to work on the central heating. It was April. It is not clear why this work could not have been undertaken by another person, perhaps a qualified tradesperson, or delayed until Mark finished quarantine. Even more concerningly, while on the premises, Mark entered the protected persons’ house.
His response when questioned as to why he did was unsatisfactory:
Dad's requested me to come, and I spent really on that day probably not even three minutes inside the house. I walked inside the house. Mum was in the hallway. She wanted to come talk to me. I was walking away from mum. [Sally] was going hysterical just screaming and shouting and slamming doors and yelling, and the next-door neighbour heard her.
He seemed uncomprehending as to why his sister was so upset by these events.
While we do not doubt that George did ask Mark to come around, it should have been apparent to Mark that acquiescing to that request was likely to significantly adversely affect both his parent’s interests, and that entering the house increased that risk further.
The risk COVID-19 poses to elderly people is well known. Mark must have been aware of it. That he took that risk in circumstances where there was no pressing need is incomprehensible.
Hilda contracted COVID-19 around the time that Mark entered the house. Sally insists Mark gave it to her. Mark believes that care workers were the cause of Hilda’s COVID- 19 infection:
I expressed my concerns to [Sally] because I've offered to care for mum and dad for five nights a week and with my partner to provide care that we don’t have that many people come into the house, and to subcontract some other people but [Sally] didn’t listen to any of my advice that the amount of care workers that were still coming in for a very long time, and I believe that’s what led mum to COVID.
The relevant care organisations have testing regimes in place for staff and denied that any staff attended the protected person’s home with COVID-19.
It is not possible for this Tribunal to determine how Hilda contracted COVID-19. Ultimately it does not matter. This incident, whatever the outcome, is an example of why we cannot be satisfied that Mark is an appropriate person to be appointed guardian of his mother or father.
Hospital feeding
Following Hilda’s admission to hospital, medical personnel determined that she was to have ‘nil by mouth’ until certain tests had been completed. Nonetheless, Mark assisted his mother to eat food.
Ms Edwards gave evidence that Mark has been advised that Hilda was not to be given any food:
So there’s detailed notes in the medical file and I had a verbal handover from the nurse and she initially advised him that the patient was nil by mouth until a speech path review and then explained the reason for the speech path review was because of a risk of aspiration and aspiration can be fatal. And it is a very – it's like two pages of notes of this interaction and then he proceeded – she noted that he proceeded to feed her, said that he does that at home all the time. And then, you know, she escalated that up to her, you know, senior nurse.
Correspondence about this incident was also in evidence and supports Ms Edward’s recollection.
Mark, under questioning from the Tribunal, denied ever being given any such advice. His explanation of events significantly differs to that of Ms Edwards:
Mark: Can I tell you what actually happened? What happened was when I arrived at the hospital mum had her breakfast right next to her bed, okay? Breakfast was served next to her bed. There was no one around. I sat down, as I've been doing with dad being in hospital for four months. Her breakfast was there and I started - - -
…And I started giving mum her breakfast that was there. She had one spoonful of a Weet-Bix thing, which she didn't like, and then I think she had a couple of sips of some thickened fluid there. That was the breakfast I gave her. After I gave her that someone then come and said to me, ‘Oh, you shouldn't be feeding your mum’ and I said, ‘Oh, I didn't know. The food was there’. And that's what – that's actually what did happen.
…
PRESIDENTIAL MEMBER ROBINSON: You only fed her Weet-Bix and a - - -
Mark: One spoonful of the Weet-Bix that was there next to her bed that had been supplied by the hospital for her breakfast. Now, I didn't think I was doing anything wrong. And that's when one of the nurses, or one of the ladies said, ‘Oh, you shouldn't be feeding your mum’. I said, ‘Oh, sorry, I didn't know’, and I left it at that.
This account differs somewhat from that in an email Mark sent to Sally after the incident:
In fact, mum had breakfast served to her by the hospital that morning was by her bed side, mum said she was hungry she had a taste of porridge but didn’t like it, I have mum some thickened drink that was by her bed.[11]
[11] Email from Mark to Sally of 22 May 2022
The difference is perhaps due to fading recollections, but there is no doubt that Mark fed his mother at a time when she was ‘nil by mouth’, due to concerns about possible asphyxiation. When asked by the Tribunal whether a nurse explained to him (after the event) why he could not feed his mother, Mark replied:
Mark: I can't remember whether she explained why or not, she said, ‘No, you shouldn't be feeding your mum’.
As such, we cannot even be satisfied that he has reflected on the situation, such that it will not happen again.
Again, the varying accounts and limited evidence make it impossible to determine exactly what happened. However, the most likely explanation would appear to be that Mark did not understand what he was told, although the other possibility is that he did not accept it, because he disagreed with it. In either case, his actions further escalated our concerns about Mark’s capacity to listen to medical advice and to work with his parents’ medical team.
The Tribunal also suggested to Mark that the material before it suggested that Hilda was “pretty unwell”. Mark denied this, stating that he “did not believe” that she was very unwell, and then proffered his own opinion as to the treatment needed, being that:
so what I believe needs to be done with mum's swallowing, she needs a speech therapist to evaluate her again when she's out of hospital and her throat is not sore.[12]
[12] Transcript of proceedings dated 6 June 2022 page 33, line 45
Again, we are concerned about Mark’s willingness to accept medical evidence that conflicts with his own assessment.
Interaction with carers
During the hearing Mark expressed frustration with the support workers assigned to assist George and Hilda. He relayed to us concerns about three workers in particular, who he claimed did not meet his standards. These concerns related to cleanliness. They were serious, and we accept Mark was genuinely concerned. On his evidence, after a incident in the house, he called the provider and requested that a particular staff member not return, but the provider sent them back in any case, allegedly with Sally’s consent. Mark’s firmly believed that Sally should have acted to prevent this worker returning. His evidence was that when he found that worker in the house, he confronted her and asked her to leave.
Mark’s account of his confrontation with the worker suggests it would have been a harrowing experience for her. Mark did not appear to find anything about it problematic.
Ms Latimer stated in the Goodwin Care Letter that Mark was:
causing carers distress by constantly questioning everything they do, criticising their work and following them around” and that this interference and criticism causes them to feel uncomfortable and upset.
She concluded that caring for the protected persons:
is being made impossible by [Mark]’s constant interference.
Ms Latimer was not called to give evidence, but Mark’s evidence appear to confirm what she says, albeit Mark considers his actions justified.
Mark kept a diary of other alleged deficiencies by support staff. He asked that the Tribunal take a copy and read it. We have done so. His records match his oral testimony about care staff arriving late, or early, or not listening to his instructions. Kapital Care letter filed 3 June 2022 also reflects that he asks staff to leave when he is there. It is apparent from this evidence that Mark is unable or unwilling to work cooperatively with care staff.
While Mark maintains that he can have cooperative relationships with suitable staff, ultimately his evidence to us was that many of these takes would be better handled by family anyway. The evidence of Dr Choudhry is unequivocally that this is not sustainable.[13] We accept that evidence, and note again that Mark has presented no convincing evidence to suggest otherwise.
Is Sally no longer a suitable person to perform the role of guardian or manager?
[13] R1, page 4
For the reasons set out below, Mark’s claims that he would be a better guardian than Sally are not sustained on the evidence. However, even if Mark had made out an arguable case, this would not necessarily be conclusive of the outcome he seeks. This is because what the Tribunal is being asked to decide is not just who is the most appropriate guardian or manager, but whether Sally should be removed from those roles under section 31 of the GM Act.
Mark did not address this legal question, but it is apparent that the Tribunal may only remove Sally as a guardian or manager if satisfied that she is no longer a suitable person, having regard to the considerations set out in section 10(4).
The language is not exclusive, so matters in addition to those considerations may also be relevant to the question of suitability.
Turning to the factors we are required to consider:
The views and wishes of the person (the protected person) for whom a guardian or manager is to be appointed.
The Tribunal was not able to speak to either of the protected persons. However, we note the observations made by Presidential Member McCarthy in the previous review decisions. It seems likely that George, at least, wants Mark to be “the boss”, but that he had little understanding of what this meant.
Mark filed a letter from a family friend, Mr N. In that letter, Mr N confirmed that he had spoken to george. He said that George had told him that the protected persons considered staying in the family home was a priority. We do not doubt this is true, but nothing in Mr N’s letter that would cause us to conclude that George’s views have changed from those expressed to the Tribunal earlier this year.
We cannot ascertain Hilda’s wishes.
The desirability of preserving existing relationships with family and any other carers
It is desirable that the protected persons continue to have good relationships with each other, with their children and with the support staff available to them.
The continued appointment of Sally will frustrate Mark. Sally says the estrangement is not new, Mark says that it is and arises from their disagreement over their parents. Whatever the cause, it is unlikely to end soon, no matter the outcome of these proceedings. This conflict is doubtlessly a cause of unnecessary distress to the protected persons, and to that end we have considered below, in relation to whether to appoint the PTG, as to whether a third-party guardian and manager may assist to resolve this tension.
There is no suggestion from any person other than Mark that Sally’s appointment undermines any relationship between the protected persons and their carers. Sally appears to be working well with hospital staff, and Ms Edward’s evidence and the letter from Kapital Care supports this.
We are satisfied that the appointment of Mark as guardian would undermine the preservation of relationships with other carers. The weight of evidence is that he has a difficult and demanding relationship with hospital staff and carers and accordingly this is a reason why he would not be a suitable person to appoint as guardian.
On balance we are satisfied that this factor weighs in favour of the continued appointment of Sally.
Whether the proposed guardian or manager is compatible with the protected person
Both Sally and Mark are compatible with their parents.
Whether the proposed guardian or manager lives in the ACT
Both Sally and Mark live in the ACT.
Whether the proposed guardian or manager will be available and accessible to the protected person
Both Sally and Mark are available and accessible.
Mark spends more time at his parents’ house and may have a greater involvement in the day to day needs of his father. We have taken this into account, but it is not determinative.
One incident that does cause us concern was that Sally appears to have been unavailable by telephone for some period of time. Her unavailability caused her father some distress. The evidence she gave was that her phone was somehow paired with her husband’s, so that she did not receive messages. We are unsure how this could happen, but the problem does appear to have been remedied. There is no evidence of any other unavailability of Sally’s part.
The nature of the functions to be exercised under the order and whether the proposed guardian or manager is competent to exercise them
The previous Tribunal explained to Mark the difference between being a carer and a guardian. There is no doubt that Mark is a dedicated carer, willing to invest substantial time and emotion in personally caring for his parents. However, we are not satisfied that Mark understands the nature of the functions to be exercised as guardian (separate to those of a carer) or that he would exercise them competently. Indeed, his actions when he had COVID-19, his interactions with the protected persons’ carers and unwillingness to listen to medical personnel suggest that he is not competent to exercise the powers of a guardian.
We have no concerns about Sally’s competency.
Whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests
We have some concerns that Mark is unable to separate his mother’s interest from his father’s, and also that he is unable to accept that medical advice where that advice conflicts with his own opinions.
There is no evidence that Sally has any conflict of interest.
Conclusion on the considerations under section 10(4) of the GMP Act
We are satisfied that Sally remains a suitable person to be appointed as a guardian and manager for the protected persons.
Has Sally failed to exercise the functions or powers of a guardian or manager?
We have considered the issues raised by Mark in relation to his mother’s medical care and dentures and the provision of medical aids to, and communication with, his father. There is no persuasive evidence before us of any failure by Sally to exercise the functions or powers of a guardian or manager in relation to these or any other matter.
We emphasise again the observations of the previous Tribunal that there is a distinction between the role of a guardian or manager and a carer. Sally’s role as guardian is to support her parents to make decisions about their health and welfare, including making arrangements for suitable care by appropriate persons. She does not necessarily need to personally attend to their care.
Should the PTG be appointed instead?
We have considered whether the conflict between Sally and Mark means that neither is an appropriate person to be appointed as a guardian.
In summary section 9(4) of the GMP Act provides that the PTG must not be appointed if a person who is “otherwise suitable” had consented. Section 10(2) sets out the criteria that must be met before a person (other than the PTG) can be appointed. Section 10(3) provides that a person other than the PTG ‘may’ be appointed as a guardian or manager ‘only if’ the Tribunal is satisfied that of certain things.
In In the Matter of LQL [2018] ACAT 53 the Tribunal observed:
By reference to sections 9(3) and (4), the PTG is sometimes described as the appointment ‘of last resort’.
The Tribunal queries that characterisation, which suggests the PTG can or should be appointed only where there is no one else who could fulfil the role. It is more a question of preference from the options available in the application/s before it.
The Tribunal in that case then went on to consider the various authorities and principles that relate to appointments of the PTG or family members.
We do think it may be of some benefit to Sally and Mark’s relationship if a third party were to step in any make decisions that are particularly contentious. However, Sally gave convincing evidence as to how she will manage these conflicts, and why she believes that even with the conflict, she is able to perform the role. We are satisfied that she had been doing do. There is no reason to remove her.
In summary, we are not satisfied that Sally is not an appropriate person to be appointed guardian, we therefore we are not satisfied that we should remove her and replace her with the PTG instead.
Conclusion
In summary, therefore, we are satisfied that:
(a)Sally is a suitable person to be a guardian and manager;
(b)Sally is competent to exercise the functions of a guardian;
(c)Sally has not failed to exercise the functions of a guardian or manager; and
(d)there is no evidence that Sally has contravened a section of the Act.
Accordingly, there is no basis upon which to remove her and the Tribunal confirmed her appointment.
We would go further, and observe that Sally appears to be working diligently, under difficult circumstances, including a situation of high family conflict. We have no concerns about her continued appointment as guardian or manager, nor any reason to revoke her appointment, nor to prefer the appointment of Mark instead.
Dealing with the protected persons’ finances
There is one further matter about which we are concerned, and that is the management of finances and expenses.
During the course of the hearing, Mark made a number of allegations about Sally’s management of their parents’ property. These were vague and unparticularised. As manager, Sally will be required to produce accounts to the PTG, which will be audited and regularly reviewed by the Tribunal. There is currently nothing before the Tribunal that raises any ground for concern.
Mark submitted that he has not been paid for expenses incurred in the care of the protected persons. Sally assured the Tribunal that she will pay these accounts, upon the production of valid receipts. It seems that what is happening is that Mark is emailing Sally a photograph of the relevant receipt, as it is obtained. Sally says that this is not good enough, and that she cannot keep track of claims coming in in such an unorganised fashion.
It is a shame that the siblings cannot devise their own means of exchanging information. Nonetheless, as they clearly cannot, the Tribunal considered this an appropriate situation to make a direction under section 16 of the GMP Act and we made the following direction. That direction was as follows:
The Tribunal directs that where [Mark] seeks reimbursement for expenses he has incurred in relation to the care and treatment of the protected person, he must:
(a) Provide the Guardian, [Sally], with an original receipt, or a clear, and complete copy of the full original receipt (not a virtual photograph) in respect of each expense; and
(b) Provide a bundle of receipts to [Sally] on not less than a fortnightly basis;
(c) Include in the bundle a covering document that lists the receipts attached; and
(d) Leave the bundle at either the protected person’s home, or send by post or email to [Sally] at a nominated address.
Future applications
It is of some concern to us that this application for review was brought so quickly after the previous two reviews. It was poorly prepared, and Mark produced little in the way of evidence, particularly if the matters previously considered are excluded. The Tribunal is concerned that Mark will not cease to make applications until he is successful.
These constant successive proceedings are taking their toll on both Sally and Mark, and we can only imagine the distress it would cause George were he to discover how intensely his children are fighting for their ‘turn’ at guardianship.
Further proceedings of this kind, being poorly prepared and without new evidence, and asserting only that a certain thing could have been done another way, have little prospect of success and needlessly drain time and resources of the parties and the tribunal.
Section 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that:
Dismissing or striking out applications
(1)This section applies if the tribunal considers that an application, or part of an application is––
(a)frivolous or vexatious; or
(b)lacking in substance; or
(c)otherwise an abuse of process; or
(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2)The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application or part of the application;
(b)dismiss the application or part of the application;
(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i) within a stated period of time; or
(ii) without the leave of the tribunal.
Note If the application is for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, the tribunal may also order the applicant to pay costs (see s 48 (2) (d)).
(3)The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
(4)The tribunal may vary or revoke a direction given under subsection (2) (c)—
(a)on its own initiative; or
(b)on application by the person who is the subject of the order.
Note The tribunal must observe natural justice and procedural fairness (see s 7).
In Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, in the context of the Supreme Court Act 1970, section 84(1) (now repealed) (vexatious litigant), Roden J said the following in relation to vexatious proceedings:
(a) Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
(b) They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
(c) They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
Sally appears to believe that these proceedings were brought for the purpose of harassing or annoying her, but we need make no finding on that point. Rather, we are satisfied that they were so poorly organised and articulated, and come so soon after the last review, as to be utterly hopeless. Continued applications of this nature should not be permitted. Accordingly, we considered it in the interests of the parties, and justice, that an order be made under section 32(2)(c) of the ACAT Act that:
Pursuant to section 32(2)(c) of the ACAT Act, the applicant, [Mark] is directed not to make a further application for review of this appointment without the leave of the tribunal. Leave may be sought by writing to the Registrar setting out the grounds upon which the review is sought, including details of changed circumstances, and attaching any documentation to be relied upon at the hearing.
This does not prevent Mark from making a further application for review if he holds genuine concerns about the guardianship of his parents, but no further applications will for review will be listed unless he properly articulates those concerns.
………………………………..
Presidential Member H Robinson
For & on behalf of the Tribunal
| Date(s) of hearing: | 15 June 2022 |
| First Applicant: | In person |
| Second Applicant: | In person |
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