RHA

[2005] WASAT 22

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990, (WA)

CITATION:   RHA [2005] WASAT 22

MEMBER:   DR G HAMILTON (SENIOR SESSIONAL MEMBER)

MS J STANTON (SENIOR SESSIONAL MEMBER)
MS R CARROLL (SENIOR SESSIONAL MEMBER)

HEARD:   16 DECEMBER 2004

DELIVERED          :   10 MARCH 2005

FILE NO/S:   GU 264 of 2004

BETWEEN:   RHA

Applicant

Catchwords:

Guardianship ­ Accommodation decisions ­ Capacity to make decisions ­ Need family disagreement on placement

Legislation:

Guardianship and Administration Act 1990 (WA), s 40(1), s 43, s 44(1), s 44(2), s 44(5), s 119

Result:

NM appointed Limited Guardian for the functions: to decide where the represented person is to live, whether permanently or temporarily; to decide with whom the represented person is to live

Category:    B

Representation:

Counsel:

Applicant:     Self Represented

Solicitors:

Applicant:     Self Represented

Case(s) referred to in decision(s):

Nil

Case(s) also cited:

Nil

DR G HAMILTON (SENIOR SESSIONAL MEMBER), MS J STANTON (SENIOR SESSIONAL MEMBER), MS R CARROLL (SENIOR SESSIONAL MEMBER): 

Preliminaries

1. Orders in this matter were made by the Guardianship and Administration Board on 16 December 2004.  That Board ceased to exist as at 24 January 2005.  The State Administrative Tribunal issues these reasons under the relevant transitional arrangements.

Background

1. The applicant is the son in law of the proposed represented person.  In making application he sought for his wife, a step‑daughter of the proposed represented person to be the guardian of RHA.  The application was lodged on 22 October 2004, at the suggestion of Meath Care where RHA resides in low care accommodation following a request from RHA's stepdaughter CC to have him stay overnight at her home and visit RHA who was located in a different facility where higher care was available.

2. RHA's wife, DMA was also the subject of an application which was heard at the same time.  DMA had resided at the same facility until 30 September 2004 when she moved to a nursing home because of her increased care needs.  RHA has no children but was well respected by his stepchildren NM and CC, daughters of DMA.  NM and CC have different views about where RHA should reside.  NM believes the current arrangement is appropriate given the different care needs of RHA and DMA and CC believes they should both be moved to a different facility, Rowethorpe where their different care levels could be accommodated on the same site, making visiting easier.

3. Both sisters wanted the best for RHA and DMA but had different views on how this could be achieved.  CC had lodged a complaint with the Department of Aged Care and had contacted Advocare because she was concerned that RHA and DMA were separated and visiting was not sufficiently regular.  At the time of the hearing external agencies were no longer involved.  NM was proposing herself as guardian and CC was seeking the appointment of the Public Advocate.

4. Family members opted to sit in separate hearing rooms with NM and her family in one room and CC and friend in a second room.  The hearing utilised a conference phone to connect the two rooms.  RHA did not attend.

Capacity

1. Before an Order can be made under s 43 of the Guardianship and Administration Act 1990, (WA) ("the Act") the Board must be satisfied that a person in respect of whom an application for a guardianship order is made:

   (a)has attained the age of 18 years

   (b)is

   (i)incapable of looking after his own health and safety;

   (ii)unable to make reasonable judgements in respect to matters relating to his person; or

   (iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;

   and

   (c)is in need of a guardian

   Under s 44(1) and s 44(2) an appointed guardian should be someone who, in the opinion of the Board:

   (a)will act in the best interests of the person in respect of whom the application is made;

   (b)is not in a position where his interests conflict or may conflict with the interests of that person; and

   (c)is otherwise suitable to act as guardian to that person

   The Board shall take into account as far as is possible

   (a)the desirability of preserving existing relationships within the family of the person in respect of whom an application is made;

   (b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;

   (c)the wishes of the person in respect of whom the application is made; and

   (d)whether the proposed appointee will be able to perform the functions vested in him.

   In addition under s 44(5)

   (5)Except where he is appointed to act jointly with another person or other persons, the Board shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.

2. Medical and health care reports were received from Dr Shane Morley, GP, from Jodie Brotherson, Hostel Manager Meath Care and Dr Mark Donaldson Consultant, Bentley Health Service.  Dr Morley's report of 1 November 2004 indicated RHA is no longer capable of making decisions about personal health care, living situation and financial affairs.  Dr Donaldson's report of 4 March 2003 approved RHA for low level residential care.  Jodie Brotherson’s report commented that RHA appears confused, cannot completely follow instructions and needs a guardian for decision making.  She also noted family conflict.

3. From these reports the Board was satisfied a guardian could be appointed for RHA.

Need

1. The application arose because CC wanted RHA to stay overnight at her house.  Meath Care sought legal advice and decided not to allow any family members to take RHA out of the facility and a carer was hired to take RHA to visit his wife once a week until the outcome of the guardianship application, recommended by staff at Meath Care was known.  NM was concerned that RHA remain at Meath Care as he was not eligible to move to the same accommodation as his wife and he is familiar with his surroundings.  Similarly DMA had settled in her new surroundings, although given her lack of awareness a move could be possible. CC wanted RHA and DMA to be moved to another facility where their different care needs could be catered for on the same premises.

2. It was clear to the Board that family members had very different views as to where RHA should live.  Visiting arrangements had been partially resolved with Meath Care providing a carer to take RHA to visit his wife weekly in the interim.  NM said she had no objection to her sister taking RHA to visit his wife but objected to overnight stays at her sister's residence believing this would be confusing for RHA.  There were no restrictions on contact and medical decisions were being managed informally.  The Board was of the view that a guardian was needed to make decisions in respect to where and with whom RHA should live because of the different views in the family on these issues.

Evidence

Family Members

1. NM, in proposing herself as guardian indicated she believed that RHA had settled well at Meath Care and was happy living there.  Her mother, DMA had advanced dementia and needed higher care.  She indicated that RHA became aggressive with his wife before she moved to a higher care facility.  She was opposed to CC taking RHA to stay with her believing it would be confusing for him and he would not be able to give consent to go.  She has been the key support person for RHA and DMA for many years.  For example RHA and DMA had moved closer to their home when they were still able to live independently and there had been a lot of contact between the families including grandchildren.  She currently took him to medical appointments and attended with him as his short term memory was poor.  She had been going to medical appointments for the past decade.  She did not see any difficulties continuing as medical decision maker on an informal basis.

2. KM, husband of NM indicated the key issue was that CC wanted to move RHA and DMA to alternative premises and he believed that this would be very disruptive for RHA and DMA was in complete dementia and that this was very upsetting for RHA.  KM said they would be guided by experts and would facilitate visiting by RHA to see his wife.

3. DM and KH, step grandchildren of RHA supported their mother as guardian and reiterated their long involvement with RHA and their belief that he was settled in his current accommodation.  They believed that RHA would choose NM as guardian if he were able to do so.  KH was of the view that her mother and her family had been acting as guardians for years.

4. CC proposed the Public Advocate be appointed as Guardian for RHA.  CC indicated she had conflict with NM and KM and indicated that she did not seek to be the Guardian because it would continue the conflict.  CC believed she was excluded from family decision‑making.  She indicated she had wanted to have RHA stay overnight and to take him to visit his wife.  CC believed RHA wanted to be with his wife and checked his rights with Advocare and complained to the Department of Commonwealth Aged Care about the separation of husband and wife.  She had checked with a friend who worked at Rowethorpe to see whether RHA and DMA could move there but had not put their names down.  If there was to be a move she hoped she and her sister could arrange it together.  She was of the view that if they were in the same facility they would have more choice about visits.  CC indicated she was not proposing herself as guardian as she suffered chronic anxiety and found it difficult doing things she had not done before.  She felt she could work with a public guardian but that there was too much emotion flowing between her and her sister.  She felt further that if NM was appointed she would be excluded from decision making.  In response to a question about whether conflict between sisters had impacted adversely on RHA, CC said she did not think it had an impact except perhaps on the extent of visiting between RHA and his wife.

Public Advocate

1. The representative of the Office of the Public Advocate in her report summarised the medical opinion and concluded RHA was someone for whom an order could be made.  She noted that CC and NM have a close relationship with RHA.  An interview with RHA indicated he was somewhat confused and did not have a clear view about what he wanted in respect to seeing his wife.

2. The Public Advocate indicated there was a need for a guardian to be appointed as family members were at an impasse in regard to where RHA should reside.  She reported incidents of aggression by RHA towards other residents while DMA was at Meath Care; these behaviours had subsequently disappeared after DMA moved to a higher care facility.  There was no evidence that visiting by CC was restricted by NM and NM had taken advice from Meath Care that moving RHA and DMA into a facility that could accommodate both of them may not be in the interests of either given their differing needs.

3. She noted that Advocare had investigated the situation on a complaint from CC but concluded that RHA was in the best facility given the circumstances and were no longer involved.

4. The Public Advocate supported the appointment of NM as limited guardian with respect to where and with whom RHA should live as she appeared to have acted in the best interests of RHA and acted on professional advice in respect to his welfare.  She indicated the Public Advocate should only be appointed if there was no family member who was willing and suitable to act and noted they would be unlikely to go against the advice of care managers.  She noted further that medical matters appeared to be managed informally in a satisfactory manner and there were no issues in respect to contact.

5. JH from the Office of the Public Advocate observing the hearing supported the recommendation but added that a guardian is required to consult with interested parties and suggested that NM use the processes of the various nursing homes and hostels and hold regular family conferences so that CC feels as though she is involved and consulted prior to decisions being made.  She did not recommend this be a direction believing NM would accept the suggestion.

Order of the Board

The Board ordered that NM be appointed limited guardian with the functions:

1.to decide where the represented person is to live, whether permanently or temporarily;

2.to decide with whom the represented person is to live;

The Order was to be reviewed in 5 years from the date of hearing.

I CERTIFY that this and the preceding seven pages comprise the reasons for decision of the members who heard this matter.

__________________________

Ms Jo Stanton
Senior Sessional Member (SAT)

(Presiding Member of the Board at the hearing on 16 December 2004).