RM and AVM - [2009] WASAT 57

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RM and AVM [2009] WASAT 57

MEMBER: MS F CHILD (MEMBER)

HEARD: 12 DECEMBER 2008

DELIVERED : 2 APRIL 2009

FILE NO/S: GAA 2607 of 2008

BETWEEN: RM
Applicant
AND
AVM
Represented person

Catchwords:

Guardianship and administration - Represented person suffering acquired brain injury as a result of a stroke - Placement in residential care - Wishes of the represented person - Maintenance of supportive relationship - Independent decision-maker needed to make personal decisions - Public Advocate appointed limited guardian

Legislation:

Guardianship and Administration Act 1990 (WA), Pt 5 Div 3, s 4, s 4(f), s 17, s 43(1), s 43(1)(b)(iii), s 44, s 44(2), s 51, s 51(2)(e), s 51(2)(g), s 97(1)(b)(iii), s 119, Sch 1(12)

Result:

Appointment of the Public Advocate as limited guardian

Category: B

Representation:

Counsel:

Applicant: N/A
Represented person : N/A

Solicitors:

Applicant: N/A
Represented person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal decided that it was in the best interests of an elderly man, who was living in an aged care facility, that an independent guardian be appointed for him and so appointed the Public Advocate as his guardian to make personal decisions, including where he was to live, the contact he should have with others and to give consent to medical treatment on his behalf.
The Tribunal decided that an independent guardian was needed because of the failure of the man's son, who had applied to be his guardian, to acknowledge the relationship his father had with a woman with whom he had lived for 17 years when making the decision to place the man in permanent care.
The elderly man had been placed in an aged care facility because his partner could no longer care for him at home, but she had not been consulted about the placement and it was at such a distance from her home that regular access to the man was difficult. The Tribunal concluded that, based on his previous conduct, the man would want regular ongoing contact with his partner, but it was not satisfied that the son appreciated this or would take account of this important supportive relationship when making personal decisions for his father, particularly the decision as to where he should live.

Background

These reasons relate to a decision of the Tribunal made on 12 December 2008 following a hearing of an application for the appointment of a guardian for AVM (the represented person). Following the hearing, brief oral reasons were delivered.
These written reasons are published at the request of the son of the represented person. Identifying information has been removed, consistent with the requirements of the Guardianship and Administration Act 1990 (WA) (GA Act) (see s 17 and Sch 1(12)) and the practice of the Tribunal in respect of proceedings under that Act.
The represented person is a 92-year-old ex-serviceman currently resident in an aged care facility. His son (the applicant) applied for appointment as guardian for the represented person, the application being received by the Tribunal on 10 November 2008.
The application refers to 'severe short-term memory problem', 'slight dementia' and 'several strokes' suffered by the represented person and the need to make health and accommodation decisions for him.
On 27 November 2009, the Tribunal received a letter from B, the daughter of AM, saying that AM was the de facto partner of the represented person and asking for an investigation by the Office of the Public Advocate. The letter enclosed a letter written to the applicant and his sister, dated 14 November 2008, referring to difficulties experienced by AM visiting the represented person because of the distance to the facility in which he now lived. The letter sought consideration of the length of the relationship AM shared with the represented person and asked that consideration be given to a move by the represented person to suitable accommodation closer to her.
Following receipt of that letter, the Tribunal referred the application and the correspondence to the Public Advocate on 28 November 2008, pursuant to s 97(1)(b)(iii) of the GA Act, asking for an investigation of whether the represented person was in need of a guardian, whether there were less restrictive alternatives to making an order and a report as to the wishes of the represented person in respect to personal decision-making, in particular where he was to live, and consent to medical treatment.
The application originally submitted by the applicant does not refer to AM in the section which invites the applicant to identify 'interested parties'. At the hearing the applicant says he advised the staff of the Tribunal of AM after receiving the letter from her daughter.
At the hearing, the applicant, his spouse, his sister L, AM and her daughter B, son-in-law and grandson attended. Representatives of the Public Advocate were also present. The represented person did not attend the hearing. A report from his treating doctor advised that the represented person was 'quite frail' and that it would be detrimental for him to attend the hearing. Later in the hearing, the daughter of AM reported that she had spoken to the represented person a week prior to the hearing and he said he wished to attend.

Principles and legislative framework

To make a guardianship order under s 43(1) of the GA Act for the represented person, the Tribunal must be satisfied that the represented person:
…
(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 judgments in respect of 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[.]
…
These provisions are subject to s 4 of the GA Act which sets out the principles the Tribunal is required to observe in all proceedings before it commenced under the GA Act.
The 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, of 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 in respect of whom an application for such orders is made, 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.
As to who should be appointed guardian, the Tribunal is guided by the provisions of s 44 of the GA Act in determining the appropriate appointment of a guardian for the represented person. The Tribunal must form the opinion that the proposed guardian will act in the best interests of that person; is not in a position where his or her interests conflict or may conflict with the person's interests, and is otherwise suitable to act as the person's guardian.
To decide the suitability of any proposed guardian, the desirability of preserving supportive relationships of a represented person, the compatibility of the proposed guardian with the represented person and the administrator (if any) of his estate; the wishes of the represented person, and whether the proposed guardian will be able to perform the functions vested in him or her, must be taken into account by the Tribunal (s 44(2) of the GA Act).

Evidence and material before the Tribunal

The Tribunal had before it limited medical and other professional reports. The Aged Care Client Record completed for the represented person, and on which his eligibility for residential and community-based services was assessed, was not made available to the Tribunal, nor were any reports from the service providers, who were reported to have provided care to the represented person in his home before his admission to residential care, before the Tribunal.
Dr C, a general practitioner who had known the represented person only two weeks when completing his report, gives a diagnosis of the represented person as having dementia which is described as a 'progressive condition'. Dr C considers that the represented person is incapable in the areas of personal health care decision-making and in respect of his living situation. He makes the note, 'Higher function dementia at present. Good numeracy but poor short-term memory and has to keep correcting himself on dates'. In the report dated 17 November 2008, Dr C considers the represented person incapable of executing an EPA but was aware he had done so.
Ms G, the clinical nurse manager of the residential care facility in which the represented person now lives, in her report, dated 19 November 2008, notes the following; that the represented person's diagnosis on admission was 'NIDDM [non-insulin dependent diabetes mellitus] - HTN [hypertension] - IHD [ischemic heart disease] … Dementia - Deafness'.
Prior to his admission to the aged care facility, the represented person lived with his de facto. His treating doctor is Dr [C]. In respect of his family and other significant people, the represented person's son visits him at the facility and the family has contact numbers for him. The represented person's de facto (AM) finds it hard to visit as she lives south of the river. The report notes 'very divided family situation; not completely sure of the situation, as conflicting history. [The represented person] appears very manipulative and threatens son with revoking of power of att[orney]'.
In respect of the mental state of the represented person, she notes that 'at times he can be confused'; that he 'follows instructions if he wants to'; that he 'does not come out of his room other than meals' and 'does not always converse spontaneously or appropriately'. She notes 'visitors can be stressed at [his] demanding behaviours'.
Her assessment is that she does not think [that the represented person] can manage [his] funds etc. 'Because of his behaviour I believe he uses his assets as a weapon'. She found it difficult to make a recommendation due to conflicting family history. She found it difficult to answer the question of whether a guardian needed plenary powers, especially in light of the represented person's behaviours.
Also before the Tribunal are the original application, correspondence from B, the daughter of AM to the applicant, and his sister referred to above, a copy of an Enduring Power of Attorney (EPA) executed on 19 September 2008 by which the represented person appointed the applicant as his attorney, and a letter dated 4 December 2008 from the Office of the Public Advocate advising that due to time constraints a comprehensive investigation and written report could not be provided.
The Tribunal also heard oral evidence and submissions from the applicant's son, his sister L, from AM and her daughter B, other family members of AM and from a representative of the Public Advocate.
The applicant proposes he be appointed as guardian for his father and says that in January 2008 the represented person suffered a stroke and was admitted to hospital where he was assessed as 'high care'. He was told that he should enter permanent care, and the applicant made arrangements for his father to enter a care facility south of the river, to which the represented person had agreed.
The applicant says that AM has been a paid carer for his father for about 17 years and that his father had met her 'out of a lonely hearts ad in a newspaper' (T:4). When the represented person went into care in January or February of 2008, the applicant says that AM visited the represented person and 'kept up the pressure on him to move out' (T:7). The applicant reports that his father's solicitor and other doctors were involved by AM, and finally it was decided that the represented person should go back to AM's place (T:8).
The sister of the applicant (the daughter of the represented person) states that her father and AM 'were partners and at the end, you know' [AM] 'was a carer' (T:5).
The applicant says that some weeks after the represented person returned to live with AM, he was admitted to respite care so that AM 'could have a rest' but that he had not wanted to be there and had left by taxi and returned home to AM a day earlier than planned. He was again at home for a period and then returned to respite for approximately a week because AM 'was again under stress' (T:8) and again he was not happy to be in respite. He returned again to live with AM. The applicant says approximately one month later he was called by the daughters of AM to arrange emergency respite and a permanent placement for the represented person as AM had been taken to hospital by ambulance and her daughters believed she could no longer care for the represented person. Respite was arranged for the represented person but the applicant says that the previous nursing home would not accept him back because of 'all the fuss', after two weeks he had accepted a placement in a facility in the northern suburbs. The applicant consulted his sister about this but not AM. Just before the represented person was admitted to the facility, and while in the respite facility, he executed an EPA appointing the applicant as his attorney. The applicant says that as attorney he arranged a mortgage on one of the properties owned by the represented person and had paid the ingoing deposit for the aged care facility of $250,000.
The applicant says that the represented person had loaned to AM $80,000 to pay off her mortgage two years before, on the promise that he could stay at her home for the rest of his life but that promise had been broken (T:18). He said that AM received a Centrelink benefit for caring for the represented person, the represented person also paid AM for his care, and a further $200 for outgoings.
The applicant says that they were lucky to get the represented person into the facility (in the northern suburbs) as access is difficult and there are long waiting lists for care. He says he is in regular contact with the facility, that they can call him at any time, and he lives only 15 minutes from the facility. He says that his father is happy at the facility and had stated that he is lucky to be there. The applicant says that if AM really cared for his father that she would agree with him, and AM has four children who could take her to visit the represented person once per week (T:31).
The applicant acknowledges that when the represented person had entered the care facility, he had wanted the represented person to be there for at least two or three weeks without AM visiting him because of the problems that had occurred at the previous facility. He said he did not want the represented person disrupted and wanted him to settle in, and this is why he did not tell AM (or her family) where the represented person was (T:31).
AM says that she and the represented person have been in a relationship since 1992, had lived in a de facto relationship and that she had cared for him since 2000. She says that although she knows he wants to come home from the facility and she wished he could do so, he now needed high care. She says that the represented person had major surgery in 1994 and was in pain and she had moved in then to care for him. He had suffered a heart attack and stroke in 2000 and had experienced mobility problems, asthma and incontinence from that time. Since then, she had cared for him with some community support and, although he went into respite, he would return home. She had support from the local council who assisted with showering and washing and ironing and she supervised his meals and getting him to bed at night. Her son, who lived next door, visited twice each day to check on them. She says her children had told her that she was getting too old to provide care but she felt that with a little more assistance to get the represented person to bed at night she could have managed.
AM says she assisted the represented person with his finances since 2000. A joint account had been opened in 2004 and the represented person had paid $500 per week and a further $100 for food and his medicines. From the joint account she would meet the expenses for the care services and pay the represented person's tax every month. AM says the represented person had loaned her money and a deed had been drawn up by his solicitor. She had been repaying the loan but had found it difficult to do so from her pension and had taken legal advice and had spoken to the represented person who said 'Forget the money. I'm happy here' (T:22).
AM says that when she was hospitalised in September 2008, the represented person had been removed from their home, and when she was discharged from hospital, she had not been told where he had been taken. She had asked the represented person's daughter but had been told that the applicant had 'put the hard word on' the daughter not to tell her (T:20). She learnt of the represented person's location some days later through documentation about the nursing home given to her by the daughter of the represented person. AM had then telephoned the facility but had been told by staff at the nursing home that the son had not wanted his father to talk to her as she disrupted him. She had visited the nursing home and taken the represented person a hearing aid as he did not have one. She says he is very deaf and has only 12% hearing in his right ear and none in the left. She says that when people shout at him in an effort to make him hear, he feels very vulnerable because he does not know what they want from him. She believes the assessment of the represented person had not taken account of his deafness. She says that the represented person has difficulty on the telephone; he could not hear well and there was no telephone in his room. She had bought him a mobile telephone and had hoped the staff would assist him to contact her, but the mobile telephone had been in his trousers when they had been put into the washing.
She asks that the represented person be moved to a good facility south of the river as the round trip to visit the represented person in his current location costs her $200 in taxi fares which she could not afford on her pension. Her daughters were taking turns transporting her to visit him but the trip took half a day and they worked full-time.
AM states that she accompanied the represented person to all his medical appointments and would love to continue to make decisions but she does not want to be the formal decision-maker as she is now elderly and would prefer someone outside the family. She did not support the applicant's appointment as guardian as she said that the applicant and the represented person had little to say to each other (T:38). When asked, she said she supported the appointment of the Public Advocate.
B, the daughter of AM, confirms that she had asked the applicant and his sister to make urgent arrangements for the care of the represented person both in the short-term and long-term when her mother was hospitalised in September 2008. She says that AM had been hospitalised with exhaustion and could no longer provide care to the represented person, even with the support of the (EACH) package (Extended Aged Care At Home) provided to them at home. She says AM's family agrees the represented person needs residential care but that AM's family were very concerned about the distance she now had to travel to visit him.

B states that prior to the represented person's admission to care, she had been organising regular respite for the represented person and AM, and although he would initially agree to go, he would later telephone AM and pressure her to come home and return in a taxi (T:28). She says that after the represented person had been admitted to the nursing home north of the river, AM's family had been taking her to visit him. She had written to the applicant to raise concerns about the distance AM had to travel and the cost. In her letter she estimates the trip to visit the represented person from AM's home as 50 minutes (by car) and advises of an estimate by a taxi company of a fare of $100 each way. She proposes that the represented person be moved to a facility south of the river so that AM can visit the represented person independent of her family in a taxi. She submits that in acknowledgement of the relationship AM and the represented person shared, they should be able to have regular visits for the rest of their lives. This was supported by other family members in the hearing, who raised concerns about both the cost and the demands on AM of the length of the travelling time to visit the represented person.
B submits that the failure of the son to note AM as a party to the application before the Tribunal demonstrates a lack of commitment to the relationship. She says she is offended by the description of her mother by the son as a paid carer (T:28).
B says the joint account described by the applicant had been set up in 2003 when there had been a meeting attended by the applicant, his son an accountant, AM, the represented person, her brother and her. At the time there had been no care services in place and it was agreed that B would be paid to organise and coordinate care for the represented person. B says she had not taken the money and the balance of the account had built up over time and had been used for household expenses, including high electricity costs incurred by the represented person and medications and clothing. AM had used her pension to meet housekeeping costs. The balance in the joint account had been around $15,000 but the son had removed $10,000 from it when the represented person had been taken into care. B says the represented person had significant personal savings accrued over the period her mother had cared for him.
She opposes the appointment of the applicant as the guardian and submits that someone independent needs to speak to the represented person as he was not present in the hearing to give his views. She proposes that the Public Advocate be appointed guardian.
In response to the question of the removal of funds from the joint account, the applicant says the account had originally been called the 'House account' but the name had been changed. He says he removed money from the account at his father's direction, who had said leave [AM] $5,000 (T:33). The applicant says he only acted in relation to the affairs of the represented person since he held his EPA.

Public Advocate’s submissions

In the Public Advocate's submission the overriding issue is where the represented person should live. The Public Advocate's representative reported that the applicant had told her that the represented person had been in the facility for about six weeks and that he was just beginning to settle. The applicant had said that AM's telephone calls result in the represented person saying he 'wants to go home'. The representative questions whether the telephone calls were unsettling and whether this might be resolved if AM were able to visit regularly. She notes that for a number of years the represented person had, by his actions, made it very clear that he wants to be with AM and that it was difficult to imagine that he would want to be so far away (from her) that she would be unable to visit. It was in his best interests that he move to enable him to see AM. The expectation (of the applicant) that the family would provide transport for visits over such a distance is somewhat onerous on the family. The representative also questions, as the represented person was said to be a man of some wealth, whether any consideration had been given to the represented person meeting the cost of taxis to enable AM to visit him at the facility. In response to this, the applicant agreed that the matter had been raised with him but nothing had happened about it (T:39).
The Public Advocate's representative says that if appointed guardian, the applicant would want the represented person to stay in the existing facility as there had been no mention of reconsidering a facility closer to where AM lives.
In respect of medical treatment, she submits that clarity is needed as AM could provide consent if it was accepted she was the de facto spouse but that the facility had been contacting the applicant about care issues and she was unaware of any consultation with AM. This created a need for the appointment of a guardian with health care authority. She considers that this need would be ongoing as she had not heard anything during the hearing that convinced her that AM would be accepted as a decision-maker for the represented person or that consultation would occur.

Findings and Reasons

Capacity

In determining that the represented person is a person for whom a guardianship order can be made, the Tribunal relies on the medical evidence from Dr C and Ms G. Both identify dementia as his diagnosis. The information before the Tribunal is limited and there are gaps in the information. In particular, the Tribunal has not heard from the represented person himself.
However, no issue is taken by any party that the represented person is dependent on others for his care needs; he is a high care recipient in an aged care facility and before his admission to that facility, he relied on AM and service providers to provide for his most basic needs.
Based on evidence and the totality of the represented person's situation; the Tribunal finds that he is in need of oversight and care in the interests of his own health and safety and is therefore a person for whom a guardianship order can be made (s 43 (1)(b)(iii) of the GA Act).

Need for orders

A range of personal matters for the represented person are in issue which require the appointment of a guardian.
There is a question as to where the represented person should live. Although all parties appear to agree that the represented person can no longer be cared for at home by AM, his present location in a nursing home in the northern suburbs, approximately 65 kilometres from her home, means that AM's access to him is restricted.
The son says that options for accommodation are very limited and the present accommodation is well suited to the represented person's needs and he is happy there and becoming settled. The report of Ms G, regarding the behaviour of the represented person, suggests that the represented person may not be settled. Without hearing directly from the represented person, it is not possible to form a concluded view but the Tribunal accepts the submission of the Public Advocate that the represented person has made clear in the past his wish to live with AM. This is not disputed by the applicant. Given this, there is a need for the present accommodation of the represented person to be reconsidered. This need cannot be met less restrictively as the applicant does not accept that there is a need to reconsider the current placement and he has not acted to facilitate access of AM to the represented person.
The represented person has significant health issues. If AM was able and willing to act and was accepted as his spouse, she would be the person at the top of the hierarchy, in s 119 of the GA Act, from whom health care professionals could obtain consent if the represented person was considered unable to consent to needed medical treatment. This informal way in which consent may be obtained can operate as a less restrictive alternative in some circumstances but the Tribunal does not consider that it can operate effectively in this case. AM considers that she is too elderly. The daughter of the represented person acknowledges AM as a partner but the applicant does not. The clinical nurse manager although describing the partner as a 'de facto', reports a 'very divided family situation', that is, between AM and the adult children of the represented person. The applicant has been making personal decisions for the represented person since his admission to care to the facility in which he now lives, including the admission itself, and restricting contact with AM. Because of the history of this matter, there is uncertainty about who would be recognised by the facility and the health professionals as having authority to consent should substituted consent be required. In the context of the health problems of the represented person, ambiguity about this issue is not in his best interests so there is a need for a formal appointment of a guardian with this authority.
The contact the represented person has with others is another area of decision-making for him. Because the son purported to restrict contact between AM and the represented person when the represented person was first admitted to the facility, and as he holds an EPA which might wrongly be construed as conferring that authority, the guardianship order should include the authority to determine the contact the represented person has with others.

Wishes of the represented person

The principles of the GA Act, as set out in s 4(f) and referred to above, provide that the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or gathered from the person's previous actions.
The represented person did not attend the hearing. The report from Dr C states that it would be detrimental to his health and that he could make no contribution to the hearing. Others appear to believe the represented person could make a contribution to the hearing. Because of his hearing disability, telephone attendance was not pursued. The matter was not adjourned because the Tribunal was satisfied that the order should be made in the best interests of the represented person.
The Tribunal may consider the wishes of the represented person as gathered from his past actions. As noted above, the evidence of all the parties was consistent on this point that the represented person wished to live with AM. He had lived with her for 17 years, had consistently expressed that view and had in the past left respite care to return to her home. From these actions it can be concluded that he continues to have this view and may not accept entirely that he needs residential care.
In respect of the EPA, executed by the represented person in September 2008 before he entered permanent care, which appoints the son as his attorney, Ms G reports that the represented person has threatened the son with revocation of the EPA. She describes the represented person's behaviour as 'manipulative' but it may be that the EPA is no longer an expression of the represented person's wishes and that there is a need for the appointment of an administrator if the represented person does not have capacity to revoke it. The Public Advocate, as the guardian of the represented person, could bring an application for the appointment of an administrator in those circumstances.

Suitable appointment

A guardian making decisions for a represented person is bound to make those decisions in that person's best interests. Factors expanding on the meaning of best interests in this context are set out at s 51 of the GA Act and include the obligation to consult with the represented person and to take into account, as far as possible, the wishes of that person as expressed or as gathered from previous actions (s 51(2)(e) of the GA Act) and to act in such a way to maintain any supportive relationships the represented person has (s 51(2)(g of the GA Act). Unfortunately, in the decision taken to accept accommodation for the represented person at such a distance from his former home with AM, the difficulties for him in maintaining his relationship with her were not properly considered by the applicant. For this reason, it is not possible to appoint him as guardian.

Appointment

Having determined that the applicant was not suitable for appointment and no one else proposes their appointment, the Tribunal appoints the Public Advocate as limited guardian to determine where the represented person should live, with whom he should live, to consent to medical treatment and to determine the contact he should have with others. The submission of B is accepted that there is an immediate need for an independent person, in this case his guardian, to speak directly with the represented person and act as an advocate for him.
The functions referred to above are sufficient to meet his needs so that a plenary order is not necessary.
The order is made for the maximum period as the represented person is an elderly person with significant health problems and has been dependent on others for oversight and care for some years and is likely to need others to assist him with personal decision-making in the longer term.

Orders

1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)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.

2.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.
3.This order is to be reviewed by 12 December 2013.

I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER