Re JMM
[2013] WASAT 45
•8 APRIL 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RE JMM [2013] WASAT 45
MEMBER: MS F CHILD (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 8 APRIL 2013
FILE NO/S: GAA 4435 of 2012
MATTER :JMM
Represented Person
Catchwords:
Guardianship and administration - Application for leave to apply for review of guardianship order - Public Advocate appointed limited guardian - Represented person with diagnosis of dementia - Background of family conflict - No change in circumstance or any other reason to hold a review of order - No likelihood of change of orders on review
Legislation:
Guardian and Administration Act 1990 (WA), s 71(5), s 87
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Application for leave dismissed
Summary of Tribunal's decision:
The Tribunal dismissed the application filed by a daughter of the represented person for leave to apply for review of a guardianship order which appointed the Public Advocate as limited guardian for her mother. The Tribunal determined that the circumstances of the represented person remained substantially the same as when the order appointing the Public Advocate was originally made. The conditions which had led to the Public Advocate's appointment, of continuing family conflict, remained. There was no change in circumstances of the represented person and no other reason shown in the application to justify early review of the order. The Tribunal dismissed the application.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
DTM and JMM [2009] WASAT 203
Re JMM; ex parte JMM [2009] WASAT 95
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These reasons relate to a determination on the documents by the Tribunal to dismiss an application for leave to apply for review of a guardianship order dated 13 June 2008 which appoints the Public Advocate as limited guardian of JMM, the represented person, due for review in June 2013.
The applicant for leave is the daughter of the represented person, DM. The applicant wrote to the Tribunal on 29 November 2012 regarding a range of matters alleging that the represented person had been inappropriately restrained on Christmas Day of 2011 at the nursing home in which she lives and challenging the decisions made by the Public Advocate, as the appointed guardian, regarding the represented person's care and accommodation. The letter was accepted as an application for leave to apply for review of the guardianship order pursuant to s 87 of the Guardianship and Administration Act 1990 (WA) (GA Act) on 10 December 2012.
The application was referred to the Public Advocate, as the appointed guardian, for investigation and to report as to whether there had been a change of circumstances or any other reason for the grant of leave.
Parties to previous proceedings before the Tribunal regarding the represented person who wished to be heard on the grant of leave were invited to file written submissions with the Tribunal no later than 10 January 2013, and the Tribunal would thereafter determine the application for leave on the documents unless determining that a hearing was necessary.
On 20 December 2012, the Tribunal received a report from the Public Advocate. The Tribunal also received responses from three other family members regarding the application for leave.
Although s 87 of the GA Act provides for an election for an oral hearing, the applicant has not sought this. In addition to her letter of 29 November 2012 the applicant filed further submissions on 4 January 2013.
The Tribunal determined that the application could be determined on the papers pursuant to s 60(2)of the State Administrative Tribunal Act 2004 (WA).
Legislation
Section 87 of the GA Act provides for leave to apply for review of an order made by the Tribunal. The Tribunal may, if satisfied, because of a change of circumstances or for any other reason a review should be held, grant leave, either unconditionally or subject to any condition.
History of orders
The appointment of the Public Advocate as guardian of the represented person was first made in 2007. The background to that appointment is set out in the reasons of the Full Tribunal published as DTM and JMM [2009] WASAT 203 and there is no need to repeat it here. That decision, and Re JMM; ex parte JMM [2009] WASAT 95, illustrate the history of family conflict and the issues raised in the past by the applicant.
Current application
The issues of concern to the applicant in the material submitted to the Tribunal include an allegation that the represented person was inappropriately restrained on 25 December 2011 at the facility in which she lives, that the represented person is neglected, and that the staff of the facility have bullied the applicant. She asks that her mother be moved to another facility.
A further submission was received from the applicant, dated 4 January 2013, which expands on her letter and refers to a number of matters, including:
•that the represented person was restrained by being tied up in a wheelchair on Christmas Day 2011 after being brought back from an afternoon outing; the applicant alleges that photographs are on file at the nursing home of this incident and questions whether the guardian has received the photographs;
•that the applicant had been bullied by staff at the facility and that carers at the facility act in a strange manner towards her;
•that the represented person is being neglected; and when the applicant does not attend the nursing home, the represented person is not fed; the applicant alleges that the represented person was denied a Christmas bus trip;
•that an outstanding account for nursing home fees for her late father had been created falsely by the facility and she had been summonsed for the unpaid account; the applicant submits that the nursing home has fabricated lies about her character to cover up an alleged fraud about the nursing home bill, and she requests compensation;
•the applicant is experiencing difficulties in her workplace, and relates this to events which she says have occurred at the nursing home; the applicant states that she wants the guardianship order reviewed as she is out of her job because the nursing home management informed the Public Advocate's office that she is allegedly on drugs or has had a mental disorder and has stayed in a mental hospital, which she denies;
•the applicant alleges that her hairdresser has become involved in dealing with matters at the nursing home;
•the applicant says that she would like the represented person moved from the nursing home while the care issues and outstanding matters regarding the represented person's finances are investigated;
•the applicant challenges the basis for the original application for the appointment of a guardian and administrator and states that the orders should never have been made. She says the guardianship order should be revoked and that she is willing to take back care responsibility for the represented person; and
•the applicant says that the guardianship order should be revoked and the represented person's care returned to her executors, (she says she and her sister are named as executors in the will of the represented person) as the represented person made the applicant and her sister the attorneys under an enduring power of attorney in July 2003.
The further submission is signed by the applicant on behalf of herself and her brother.
The Public Advocate
In respect of the allegation of inappropriate restraint, the Public Advocate reports that the applicant met with the care manager and clinical nurse about this matter in June 2012. The Public Advocate is satisfied that restraint was not used in the represented person's wheelchair, although previously the represented person had bed rails to stop her from falling from her bed. The Public Advocate reports that the bed rails were removed from the bed from 25 September 2012, and the represented person's bed is now kept low to the ground and that her positioning in bed is monitored.
The Public Advocate advises that the Commonwealth Aged Care Complaints Unit (Complaints Unit) contacted the delegated guardian in October 2012 following an allegation made by the applicant that the represented person was not receiving sufficient food or fluids at the nursing home. The Public Advocate says the issue of restraint was not raised at that time. Later, the Complaints Unit advised that the complaint was not substantiated and the matter had been closed.
The Public Advocate reports that the delegated guardian sought the views of the represented person's general practitioner regarding her placement at the nursing home. His view was that, while it was safe to move the represented person, a change in her surroundings and unfamiliar carers would be confronting for her. All family members were advised of this opinion. The Public Advocate advises that although at times the applicant has sought to have the represented person moved, at other times she has been agreeable to the represented person remaining at the facility. Other family members say that the represented person is content at the current nursing home and that they do not support her being moved to a different facility. The manager of guardianship at the Office of the Public Advocate supports the decision of the delegated guardian not to pursue a transfer of the represented person to another facility.
In relation to allegations that the represented person's daughter had been bullied by staff at the facility, the Public Advocate reports that when this issue was raised with the care staff manager, she advised that staff were not aware of the concerns of the daughter.
The Public Advocate submits that the issues raised by the applicant are the same issues raised on previous occasions, which have been addressed by the delegated guardian. The submission of the Public Advocate is that there are no significant changes in the represented person's circumstances or any other reason why leave to apply for review of the guardianship order should be granted to the applicant.
The Tribunal received responses to the request for submissions from three other family members regarding the application for leave. All advised that they were satisfied with existing arrangements with the Public Advocate as the guardian.
Reasons
The Tribunal accepts the submission of the Public Advocate that many of the issues raised in the current application for leave are substantially the same as have been canvassed in applications by the applicant for leave and in review hearings conducted by the Tribunal in the past.
The issues can be summarised as a concern about neglect, or illtreatment of the represented person at the nursing home, allegations about historical financial mismanagement and inappropriate conduct by the represented person's soninlaw which have been investigated in the past by the Public Trustee and found to be without foundation, and the proposition that the guardianship order be revoked and that some form of informal family decisionmaking takes its place.
There are new allegations in which the applicant suggests a conspiracy between nursing home staff, her brotherinlaw and others, and the Public Advocate's office, as in some way being involved with the difficulties the applicant says she is experiencing at her workplace. Although the Tribunal acknowledges the obvious personal distress expressed in the lengthy submissions made by the applicant, these are of course matters about which the Tribunal has no jurisdiction.
In relation to the matters raised about an outstanding account for nursing home fees for the applicant's late father, the Tribunal considers that that matter has been resolved. The administration order dealing with the estate of the represented person was reviewed in 2012 on the application of the Public Trustee. An order was made authorising the Public Trustee, as administrator of the estate of the represented person, pursuant to s 71(5) of the GA Act, to provide funds of the represented person as an interestfree loan to the applicant, up to an amount of $9,191.77, to clear a debt she owed for outstanding nursing home fees of the late husband of the represented person, plus costs and interest payable. The Tribunal authorised the administrator to forego recovery of the loan in the lifetime of the represented person. The Tribunal was told that the applicant had been summonsed for nonpayment of a debt, being unpaid nursing home fees of her late father. The Public Trustee was satisfied that the applicant owed the debt as the fees had not been paid during a period when the applicant was responsible for the management of the affairs of her late father. As the Public Trustee supported the loan and the represented person would not be materially disadvantaged by advancing a loan to cover her daughter's debt, the Tribunal approved the loan being made.
The continuing conflict between family members is apparent in the material before the Tribunal, as is the high level of conflict between the applicant and the represented person's direct carers the nursing home providing her care. The level of family conflict resulted in the original appointment of the Public Advocate as an independent guardian to safeguard the represented person's interests. It is clear that the need for that appointment has not changed.
The proposal of the applicant that the executors of the will of the represented person manage her affairs informally, is not appropriate. The enduring powers of attorney executed by the represented person have been revoked by the Tribunal as being inconsistent with the appointment of the Public Trustee as plenary administrator of the estate of the represented person. All the medical evidence before the Tribunal reports that the represented person has a diagnosis of Alzheimer's disease, has severe dementia and could not make a new enduring power of attorney or enduring power of guardianship. She is a very frail nursing home resident with a progressive illness, and will not recover capacity to manage her own personal affairs.
Having considered the material submitted by the applicant, and the other material before it, the Tribunal concludes that there has been no material change in the circumstances of the represented person which would warrant a review of the guardianship order, nor is there any other reason made out to support the grant of leave. The proposal by the applicant that the guardianship order be revoked is not supported by the Public Advocate or other family members who made submissions. Given the history and the continuing need for an independent guardian, there is little likelihood of a change in orders if leave was granted and a review held.
The Tribunal is not satisfied there has been a change of circumstances or any other reason to justify a grant of leave to review the order. The application is therefore dismissed.
Orders
1.The application is dismissed.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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