Re JMM;
[2008] WASAT 221
•19 SEPTEMBER 2008
RE JMM; EX PARTE JMM [2008] WASAT 221
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 221 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:554/2007 | 13 JUNE 2008 | |
| Coram: | MS F CHILD (MEMBER) MR J JAMES (SENIOR SESSIONAL MEMBER) DR D STEPNIAK (SENIOR SESSIONAL MEMBER) | 19/09/08 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appointment of Public Trustee as plenary administrator Appointment of Public Advocate as limited guardian | ||
| B | |||
| PDF Version |
| Parties: | JMM |
Catchwords: | Guardianship and administration Review of appointments of the Public Advocate and the Public Trustee Family conflict Need for orders appointing independent decisionmakers |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 64, s 84, s 86, s 87, s 108 |
Case References: | Nil |
Orders | 1. The order be confirmed as follows:,The Public Trustee of 565 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 Act.,2. The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia is appointed limited guardian of the represented person with the following functions:,(a) To decide where the represented person is to live, whether permanently or temporarily;,(b) To decide with whom the represented person is to live;,(c) Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person; and,(d) To determine what contact, if any, the represented person should have with others and the extent of that contact.,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 13 June 2013.,5. The enduring power of attorney dated 4 November 2003 by which the represented person appointed DAM and DTM to be her attorneys is revoked. |
Summary | On periodic review of guardianship and administration orders, the Tribunal confirmed the appointment of the Public Advocate as guardian for an elderly woman and the Public Trustee as administrator of her estate.,The woman had a diagnosis of dementia. Two daughters of the woman proposed that the orders, which had been made the year before, be revoked and that an enduring power of attorney, which had been revoked by the Tribunal, be reinstated. They argued that this, together with assistance from a bank, would provide for the financial management of their mother's estate. ,The daughters proposed that the Public Advocate's appointment as guardian be revoked and that the conflicts about the living arrangements of their mother and the contact she had with others be worked out between the family members themselves. ,None of the other family members supported the revocation of the orders and the representative of the Public Advocate submitted that the appointments should be confirmed in the best interests of the woman because of the level of the continuing conflict between family members. ,The Tribunal determined that there was still a need for the appointments of both an independent administrator and guardian because of the evident conflict between the daughters and the rest of the family. The Tribunal found that the conflict might worsen or have an adverse impact on the woman if the orders were revoked. The proposals from the daughters were unrealistic as the conflict made informal decisionmaking about the personal and financial affairs of their mother unworkable.,The Tribunal confirmed the orders appointing the Public Advocate and Public Trustee, and revoked an enduring power of attorney by which the daughters had been appointed attorneys of their mother. The enduring power of attorney was inconsistent with the order made to reappoint the Public Trustee as administrator.,Although the Tribunal considered that the woman would wish family members to make decisions for her, this was not possible because of the ongoing family conflict, and the appointment of independent decisionmakers was necessary in her best interests. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE JMM; EX PARTE JMM [2008] WASAT 221 MEMBER : MS F CHILD (MEMBER)
- MR J JAMES (SENIOR SESSIONAL MEMBER)
DR D STEPNIAK (SENIOR SESSIONAL MEMBER)
JMM
Applicant
Catchwords:
Guardianship and administration - Review of appointments of the Public Advocate and the Public Trustee - Family conflict - Need for orders appointing independent decisionmakers
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 64, s 84, s 86, s 87, s 108
Result:
Appointment of Public Trustee as plenary administrator
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Appointment of Public Advocate as limited guardian
Category: B
Representation:
Counsel:
Applicant : Self-represented
Solicitors:
Applicant : Self-represented
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 On periodic review of guardianship and administration orders, the Tribunal confirmed the appointment of the Public Advocate as guardian for an elderly woman and the Public Trustee as administrator of her estate.
2 The woman had a diagnosis of dementia. Two daughters of the woman proposed that the orders, which had been made the year before, be revoked and that an enduring power of attorney, which had been revoked by the Tribunal, be reinstated. They argued that this, together with assistance from a bank, would provide for the financial management of their mother's estate.
3 The daughters proposed that the Public Advocate's appointment as guardian be revoked and that the conflicts about the living arrangements of their mother and the contact she had with others be worked out between the family members themselves.
4 None of the other family members supported the revocation of the orders and the representative of the Public Advocate submitted that the appointments should be confirmed in the best interests of the woman because of the level of the continuing conflict between family members.
5 The Tribunal determined that there was still a need for the appointments of both an independent administrator and guardian because of the evident conflict between the daughters and the rest of the family. The Tribunal found that the conflict might worsen or have an adverse impact on the woman if the orders were revoked. The proposals from the daughters were unrealistic as the conflict made informal decisionmaking about the personal and financial affairs of their mother unworkable.
6 The Tribunal confirmed the orders appointing the Public Advocate and Public Trustee, and revoked an enduring power of attorney by which the daughters had been appointed attorneys of their mother. The enduring power of attorney was inconsistent with the order made to reappoint the Public Trustee as administrator.
7 Although the Tribunal considered that the woman would wish family members to make decisions for her, this was not possible because of the ongoing family conflict, and the appointment of independent decisionmakers was necessary in her best interests.
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Reasons of the Tribunal
8 These reasons relate to determinations of the Tribunal to confirm appointments of the Public Advocate as limited guardian of JMM (represented person) and Public Trustee as the plenary administrator of her estate following a periodic review of orders made 12 months before.
Background
9 The orders under review dated 15 May 2007 appoint the Public Trustee as plenary administrator of the estate of the represented person and the Public Advocate as her limited guardian to decide where and with whom the represented person is to live, to consent to health care and services on her behalf and to determine the contact she should have with others. An order made on the same day revoked an enduring power of attorney (EPA) dated 23 July 2003 by which two daughters of the represented person were appointed as donees of her enduring power of attorney.
10 Although the orders were subject to statutory review pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) (GA Act), two daughters of the represented person (for the purpose of these reasons the applicant daughters) applied for review of the orders. The applications were heard together with the statutory reviews on the same day.
11 The orders to confirm the appointments were made on the day of the hearing and brief oral reasons delivered at that time. These written reasons are produced at the request of a party to the proceeding and are anonymised so as not to identify the represented person or any participant in the hearing as required by the provisions of the GA Act.
Evidence and material before the Tribunal
12 The review hearing was attended by the applicant daughters, the sister and brother-in-law of the represented person, two sons of the represented person (one by videoconference from Queensland), a soninlaw of the represented person, a representative of the Public Advocate, and a family friend and an officer from the Public Trust office attended by teleconference.
13 In addition to the oral evidence from the parties, the Tribunal received the following written material; applications pursuant to s 87 and s 86 of the GA Act from the applicant daughters and one brother, G, submissions from the applicant daughters including references and banking documents and correspondence from various parties going back
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- to 2003, a submission from other family members seeking confirmation of the orders and revocation of an EPA dated 4 November 2003 executed by the represented person. This submission was signed by the sister and brotherinlaw, another daughter, two other sons of the represented person, her soninlaw and daughterinlaw. Also before the Tribunal are reports from the Public Trustee and from the Office of the Public Advocate, correspondence from the family members, reports from Dr R (a general practitioner and the represented person’s treating doctor) dated 6 May 2008, and from the Director of Nursing of the Nursing Home where the represented person has been a resident since 2006, dated 8 April 2008.
Principles and legislative framework
14 On review of orders made under the GA Act, the Tribunal may confirm, amend or revoke an order.
15 In any proceedings under the Act, the Tribunal is required to observe the principles set out in s 4(2) of the GA Act.
16 Those principles provide that the primary concern of the Tribunal must be the best interests of any represented person, that every person shall be presumed to be capable of looking after their own health and safety, making reasonable judgments in respect of matters relating to their person; managing their own affairs; and making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the Tribunal. The principles also include that orders should not be made if the needs of the person could, in the opinion of the Tribunal, be met by means less restrictive of the person's freedom of decision and action. Any order made should be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action. In considering any matter, the Tribunal is bound to attempt to ascertain the wishes of the person as expressed or gathered from the person's previous actions.
17 To make orders on review for the represented person, the Tribunal must be satisfied that she is a person for whom the orders can be made, that there is a need for the orders and there are no less formal means by which those needs can be met. If it decides those conditions are met, the Tribunal must determine who should be appointed in the roles of guardian and administrator.
18 In respect of a guardianship order, s 43 of the GA Act provides that the Tribunal must be satisfied that the person is:
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- (i) incapable of looking after her own health and safety;
(ii) unable to make reasonable judgments in respect of matters relating to her person; or
(iii) in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
19 In respect of an administration order, the Tribunal must be satisfied that the person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate: s 64 of the GA Act
20 In respect of the appointment of a guardian, the Public Advocate may not be appointed solely unless the Tribunal is satisfied there is no other person suitable to be appointed in that role.
Capacity
21 A report from Dr R, a general practitioner, dated 6 May 2008, states that 'the represented person has a diagnosis of severe dementia' and notes that it is a progressive condition. His report notes that 'the represented person scored 0/30 on a Mini Mental State Examination'. In his opinion, she is incapable of making reasonable decisions regarding her personal health care, her living situation and her financial affairs or of capably executing an enduring power of attorney. He considers that she can make no contribution to the hearing and that attending the hearing would be detrimental to her health. His opinion is that 'the dispute between family members would be very distressing for the patient'.
22 A report from the Director of Nursing states that 'the represented person has diagnoses of dementia, osteoarthritis and hypertension'. It notes she was admitted to the facility on 2 May 2006. The Director reports that three daughters of the represented person are regular visitors. She reports:
[The represented person's] well being does not alter regardless of which family member visits. She appears to enjoy all family members visits. [The applicant daughters] of the represented person have, at times, been uncooperative, verbally aggressive and obstructive with staff who provide [the represented person's] care. These issues have needed to involve the present guardian to be resolved. Members of the family mentioned on the whole support their mother except for the issues mentioned. Present Guardian [name deleted] has been supportive and competent in fulfilling his role, and has shown himself to be unbiased in all dealings with staff and family members under somewhat trying conditions at times. [The
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- represented person] is unable to initiate interactions with family members or staff at any time. She is passive to instructions, and at times, will agree with 'yes' although it is doubtful she has comprehension regarding daytoday living needs. She does response [sic] at times, but it is difficult to assess her cognitive state due to her diagnosis of dementia. She requires full assistance for all activities of daily living by one staff; for mobility, she requires two staff.
23 The recommendation of the Director of Nursing is that the represented person:
requires both a Guardian and an Administrator with plenary powers. Due to the family dynamics as previously mentioned and the well-being of the client, the guardian is required to be an unbiased person unrelated to the family.
24 Based on the professional reports, the Tribunal finds that the represented person remains a person for whom both administration and guardianship orders can be made. She is unable, by reason of her dementia, of making any decisions about her estate and she is incapable of looking after her own health and safety; unable to make reasonable judgments in respect of matters relating to her person; and in need of oversight, care or control in the interests of her own health and safety.
Administration
25 The estate of the represented person consists of funds in the Public Trustee's cash account of just over $300,000. Her needs in respect of her estate include the payment of her accommodation and personal expenses such as dental and chemist accounts, to invest her funds appropriately and to maintain reporting requirements for her pension entitlements. Because of her dementia, the represented person is unable to manage any aspect of her estate.
26 In respect of the management of the estate, the applicant daughters propose that the estate be managed with the assistance of the represented person's bank without a formal administration order. They ask that the EPA executed by their mother in July 2003, by which they had been appointed as donees, which had previously been revoked by the Tribunal, be restored.
27 At the review hearing the Public Trustee’s officer reported on the history of the administration of the estate. When first appointed, although the Tribunal had not directed it, the Public Trustee undertook, at the urging of the applicant daughters, a comprehensive investigation of allegations made by the applicant daughters against other family members in relation to property and financial transactions for the represented person and her late husband dating back to 2002.
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- 28 At the review hearing the Public Trustee reported on the investigation of the transactions and the subsequent financial dealings. The conclusion of the Public Trustee's investigator was that 'nothing underhand took place and that all issues were correctly handled' by the family members about whom the allegations had been made.
29 The Public Trustee’s officer reported that daughters had been advised of the outcome of the investigation and the conclusion of the Public Trustee that the matters do not require any further investigation.
30 Despite the report of the Public Trustee, the applicant daughters continued to make allegations about other family members in the course of the review hearing and did not accept the report or conclusion of the Public Trustee. They submitted that the investigation of the Public Trustee was conducted on incomplete evidence. When asked, they were unable to identify any further evidence which they could put before the Public Trustee or the Tribunal in this regard.
31 Having considered the report of the Public Trustee and the evidence and submissions of the applicant daughters, we accept the report of the Public Trustee, as the independent administrator of the estate, that the allegations made by the applicant daughters regarding property transactions dating back to 2002 and subsequent financial dealings are not substantiated and require no further examination by the administrator.
32 The Tribunal does not accept that the financial affairs of the represented person can be managed informally as proposed by the applicant daughters. The management of the represented person's finances, and the payment of her accounts, require formal administration since the distrust about financial matters among family members and the history of allegations makes the proposal unrealistic. If the order was revoked it is likely that the existing conflict might worsen with adverse consequences for the represented person.
33 The reappointment of the Public Trustee was supported by all family members other than the daughter applicants.
34 The proposal that the EPA be restored by an order of the Tribunal is not possible. Having revoked an EPA, the Tribunal cannot reinstate it.
(Page 9)
35 The medical evidence from Dr R is that the represented person cannot now validly give an EPA. The EPA which appointed the applicants as donees was revoked when the order was made appointing the Public Trustee, as the EPA was inconsistent with the order made.
36 To put beyond doubt the authority of the Public Trustee in respect of the represented person’s estate, the Tribunal will, pursuant to s 108 of the GA Act, revoke an EPA dated 4 November 2003 by which the represented person appointed the applicant daughters as donees. The EPA is inconsistent with the plenary authority of the Public Trustee which the Tribunal has determined is the order which is appropriate for the administration of the represented person’s estate in her best interests.
Guardianship
37 The proposal by the applicant daughters and the brother G is that the guardianship order be revoked and that family members work out their differences about the living situation of the represented person, and manage the contact arrangements with the represented person is also unrealistic because of the ongoing conflict in the family. The conflict is referred to in reports from the treating doctor, the Director of Nursing and the Public Advocate. Evidence of the conflict was also provided by family members themselves and was openly expressed in the hearing. The level of the conflict and the circumstances of the represented person are apparently a source of great distress to family members, especially the sister of the represented person.
38 An incident reported in the hearing, which illustrates the conflict, occurred on the represented person's birthday. It is reported that the police were called to the nursing home where she lives to deal with a conflict which had erupted between family members. The Tribunal was informed that subsequently applications for violence restraining orders have been made. This incident is evidence of the continuation of the longstanding conflict between the family members. It is reported that the incident occurred as there had been a confusion about which family member had access to the represented person on the day of her birthday. That the police were called to a nursing home exemplifies the nature of this conflict. This incident could have been disturbing for the represented person, other elderly residents and the staff of the facility who have a duty of care to the represented person and other residents. The reports of the treating doctor, the Director of Nursing and the Public Advocate highlight the risk of the ongoing family conflict impacting on the welfare of the represented person.
(Page 10)
39 The applicant daughters and their brother G consider that the represented person should be moved from her present nursing home because of issues of concern to them; other family members disagree. Given the current state of relationships in the family, this matter could not be resolved informally.
40 Because of the ongoing conflict there is noone suitable from within the family of the represented person to be her guardian. All family members, other than the applicant daughters and G, support the reappointment of the Public Advocate as guardian. The Tribunal finds that the appointment of the Public Advocate is the appointment which is in the best interests of the represented person.
41 As the issues of conflict include where the represented person should now live, care issues and the contact she should have with others, the Public Advocate's functions will include these matters.
42 A limited order is sufficient to meet the needs of the represented person. Since the nature of the represented person’s condition is a progressive one, she is unlikely to recover her capacity and because of the intractable nature of the conflict in the family, the order will be made for the maximum period of five years.
Wishes of the represented person
43 The principles of the Act require the Tribunal to ascertain the wishes of the represented person. In relation to the ability of the represented person to express her views and wishes, we prefer the evidence of the health care professionals to that of the applicant daughters who say that the represented person is distressed because some family members are unable to visit her. Dr R reports that the represented person can make no contribution to the hearing, and the Director of Nursing’s comments are consistent with this report. Despite this, we consider that should she be able to express her wishes, she would wish that family members make personal and financial decisions for her. This would be consistent with the material before the Tribunal going back many years to the first applications before the then Guardianship and Administration Board when at times various family members (from both sides of the current conflict) assisted the represented person and her late husband with both personal and financial matters. Unfortunately, for the reasons we have set out above, it is not possible to give effect to what we believe the represented person's wishes are likely to be, as gathered from these past actions, and must appoint decisionmakers from outside her family in her best interests.
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Orders
1. The order be confirmed as follows:
The Public Trustee of 565 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 Act.
2. The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a) To decide where the represented person is to live, whether permanently or temporarily;
(b) To decide with whom the represented person is to live;
(c) Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person; and
(d) To determine what contact, if any, the represented person should have with others and the extent of that contact.
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 13 June 2013.
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- 5. The enduring power of attorney dated 4 November 2003 by which the represented person appointed DAM and DTM to be her attorneys is revoked.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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