RP and PC - [2007] WASAT 196

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RP and PC [2007] WASAT 196

MEMBER: MS D DEAN (MEMBER)

HEARD: 11 JUNE 2007

DELIVERED : 1 AUGUST 2007

FILE NO/S: GAA 1261 of 2007

BETWEEN: RP
Represented person
AND
PC
Applicant

Catchwords:

Applications for Guardianship and Administration Represented person suffering from a progressive neurological disorder impacting on both physical and mental functioning Need to make difficult decisions which, if a family member appointed, might have a negative impact on close family relationships Public Advocate appointed limited guardian Public Trustee appointed plenary administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 64

Result:

Public Trustee appointed plenary administrator for one year
Public Advocate appointed limited guardian for one year

Category: B

Representation:

Counsel:

Represented person : Self-represented
Applicant: Self-represented

Solicitors:

Represented person : Self-represented
Applicant: Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications were made by the represented person's medical treating team for both guardianship and administration orders. The represented person had a hereditary, progressive, neurological disorder which had impacted on his cognitive and physical functioning, and will, in the future, continue to cause further deterioration in functioning.
The medical treating team assessed the represented person as incapable of making reasonable judgments about his lifestyle or finances. His mother disagreed with this assessment and believed that the represented person still had the capacity to make reasonable decisions for himself.
The Tribunal accepted the evidence of the medical treating team in respect of both capacity and the need for a guardian and administrator. The Tribunal appointed the Public Advocate limited guardian and the Public Trustee plenary administrator on the basis that some difficult lifestyle, health and financial decisions needed to be made and these would be difficult for the mother to make given her belief in the represented person's capacity to make these decisions for himself. It was the view of the Tribunal that the mother's close, supportive relationship with the represented person might be compromised if she was required to make decisions which went against his wishes and it was therefore in his best interests that an independent decision‑maker be appointed.
The Tribunal made the appointment for one year, as in that time, the mother may accept that the represented person no longer has the capacity to make reasonable decisions for himself and she may be suitable to be appointed to make decisions for him.

Background

The represented person was diagnosed in 2001 with a rare neurological disorder with an expected inevitable progressive decline in both cognitive and physical functioning.
Applications were made to the Tribunal by the represented person's medical treating team for both guardianship and administration orders.

Evidence provided to the Tribunal prior to the hearing

The following reports were provided to the Tribunal prior to the hearing:
•Dr P, a neurologist, has been the represented person's treating doctor for three and a half years and last saw him on 22 March 2006. Dr P describes the illness as "a progressive neurodegenerative disorder leading to dementia, ataxia and death". He assesses the represented person as incapable of making reasonable decisions in respect of any major aspect of his life.
•SA, the paid carer for the represented person, reports that the represented person's speech has deteriorated to the point that it is difficult to understand. The carer also reports that she "manages the client's money" with input from the represented person who is very careful with his money and "always tells me to buy the least expensive items when shopping". The represented person has caring and involved family and friends who visit every two to three weeks. The carer states in her report that the represented person is not in need of a guardian or administrator because "along with [the community care service provider] [he] would be able to manage his affairs".
•KB, program co-ordinator, community support officer with the community care service provider, reports that the represented person has a formal diagnosis of advanced stage neurological disease. He lives in his own home but relies on daily care and support from paid staff. He no longer leaves his home and therefore does not see the doctor but is seen by staff of the neuroscience unit who visit him at home. He is "repetitive in his conversations and not always appropriate". He is regularly visited by his mother and occasional visits from his long‑time friend. He receives 10 hours per day, 7 days per week paid carer support. "No longer able to make reasoned decisions", he requires a guardian who will act in his best interests while at the same time respecting his wishes.
•The written application in which the applicant reports that there is some difference of opinion between the neuroscience unit and the community care service provider about the standard of care provided, particularly in terms of the represented person's health and safety.
•In addition to the written application, the applicant provided a lengthy written report in which he states that the mother and the community service provider have "differing views regarding [the represented person's] competence and the issues requiring executive decision‑making". The represented person "has been evidencing the sub-cortical dementia associated with [the] disease for some years now, and this impacts significantly on his cognitive ability to make informed decisions (as opposed to expressing his wishes)". The represented person's health status is "precarious" and, given his very low weight, he is at "multiple risks from malnutrition itself and the inability to ward off respiratory infection or other health challenges". The weight loss has been partially a result of the represented person's resistance to care intervention and to spending money on recommended dietary supplements.
•The applicant states that the current care situation presents some risks because of the hours without supervision. As the represented person's condition deteriorates and more care is required, it will be even more risky. The neuroscience unit supports the proposal by the mother to take on the role of guardian but considers that, given the stress associated with caring for her other son with the same degenerative neurological disease and the possible conflict between decisions that will need to be made which may not be in accordance with the represented person's expressed wishes, the appointment of an independent guardian may be more appropriate.
•A report from the Public Advocate outlining the following information as a result of her investigation into the application. The mother does not believe that her son has yet lost the capacity to make his own decisions. She does not believe that the applicant, who rarely visits the represented person, can make an accurate judgment about the represented person's capacity. She believes that the treating doctors and health professionals are making their assessments of the represented person's capacity based on their understanding of the disease rather than an understanding of the represented person's functional ability.
Copies of the following documents were provided by the care service provider:
1.A living will dated 2 March 2005 executed by the represented person in which he appoints a relative, JPR, to act as his proxy when he is no longer able to make health and personal care decisions for himself.
2.A letter written by the represented person stating that he does not want to live with his mother but wishes to continue to live independently in his own home when his condition deteriorates.
3.Charts recording the daily food and fluid intake of the represented person.

Hearing

The hearing was attended by: PC (the applicant, a psychologist with the neuroscience unit of the medical service); RP (the represented person); DT and KB, community support service providers; KE (speech pathologist with the neuroscience unit of the medical service); a representative of the Office of the Public Advocate (OPA); CR, mother of the represented person; SG, the mother's partner and SA, the paid carer of the represented person.
The applicant informed the hearing that, although he himself has had little direct contact with the represented person, the neuroscience unit, of which he is a member, has a long history of frequent and regular contact with both the represented person and his brother who suffers from the same rare neurological disorder and is also a patient of the neuroscience unit. The represented person's disease is considered to be well advanced.
The applicant said the neuroscience unit had been unable to explain to the mother that the application for guardianship is not an attempt to remove the represented person from his home or her care and support.
The applicant and the speech pathologist said that it is the opinion of the neuroscience unit and the medical treating team that the represented person lacks the "capacity to take into account all of the circumstances that face him as risks and to make reasoned and balanced judgments about them". In addition, there is a loss of insight which can, and has, had serious implications for his health.
For example, the represented person has a history of being frugal in his spending and has steadfastly refused to outlay the money required to purchase a high quality dietary supplement necessary to maintain his weight at a safe level. Currently, a cheaper and lesser quality dietary supplement is being purchased with the cost being partially subsidised by the neuroscience unit. The represented person's weight is not at a dangerously low level but could become so, in which case it may not be reversible and could hasten the onset of death. The dietician is keen to get the represented person onto the high quality, more expensive supplement to ensure that his current weight is maintained.
The speech pathologist said the disease causes serious executive decision‑making problems which may not always be evident in a structured environment such as that currently provided for the represented person.
The applicant informed the Tribunal that the neuroscience unit has experienced some resistance on the part of the carer service in the unit's attempts to work co‑operatively to ensure the represented person's health and weight remain optimal. The applicant reported that in February and March this year the represented person's weight "was precipitously low and we all needed to react quickly … we put pressure on [the represented person] to regain some weight" [T:21]. The carer agency had declined to positively reinforce with the represented person the need to gain weight on the basis that this would have a negative effect on the relationship between the carer agency and the represented person.
The mother indicated throughout the hearing that she holds a different view from the medical treating team about the represented person's capacity to make reasonable judgments for himself, particularly in respect of his financial expenditure and the decisions he might make about his care and treatment.
The applicant explained that some of the decisions made by the represented person, and supported by his mother, put him at risk of further deterioration in his condition, particularly if he continues to lose weight and his weight gets to the point where it cannot be reversed.
The mother explained that she has in the past purchased the dietary supplement for the represented person who does not want to spend his own money on such a purchase. Unfortunately, the represented person refused to take the supplement.
The carer reported that in the two and a half years she has been employed to care for the represented person he has saved approximately $900 from his pension. Under his direction she withdraws money from his account and purchases his requirements. She acknowledged that the represented person is not able to fully understand the consequences of his decisions, particularly in relation to his decision not to purchase the high quality dietary supplement necessary to prevent dangerous weight loss.
DT agreed that the represented person does not have the capacity to make significant lifestyle or financial decisions for himself but reiterated his stand that the represented person "is afforded the opportunity all the while to exercise the maximum amount of freedom of choice" [T:28]. DT further stated his belief that it is in the represented person's best interests that the care service maintain a positive relationship with the represented person who could, if he chose, refuse the service.
There was some discussion about the problems associated with the represented person continuing to live in his own home. Paid care is only available for 10 hours a day 7 days a week, leaving him alone during the night. In the past there was a safety issue identified because of the represented person smoking in bed and the consequent risk of fire. This risk is no longer an issue as the represented person no longer smokes in bed, but there are other risks associated with the represented person living alone.
There was considerable discussion about the need for a monitored alarm system which would alert an outside agency to a medical or other emergency during the unattended night hours. Parties acknowledged that there would be a cost associated with this type of service some of which might be picked up by a support agency. Most parties agreed that the represented person was unlikely to agree to pay for such a service which he does not see as necessary. The mother said she doesn't see the need for a monitored alarm system because the represented person can, in her opinion, respond appropriately if need be in an emergency. The carer did not agree with this assessment of the represented person's capacity to analyse a dangerous situation and to make appropriate and reasonable decisions required in such a situation.
All parties agreed that it was desirable to follow the wishes of the represented person in supporting him for as long as possible to remain living in his own home but, given the inevitable progression of the disease and the fact that no additional care could be provided, a decision will need to be made some time in the future about alternative supported residential care. The represented person has indicated in writing that he wishes to live and die in his own home. The mother says that they have an agreement that when the time comes he will move in with her.
The applicant informed the Tribunal that the mother, who works closely with the carer agency, does not work well with the neuroscience unit with whom she has had disagreements about treatment and assessment. The mother pointed out that she is familiar with the disease and its progression as her mother-in-law and husband both died of the disease and both her sons currently have the disease. She said this gives her some insights into the disease which may be different from the neuroscience unit.
When asked who he would like to take on the role of decision‑maker on his behalf if someone is to be appointed, the represented person said he no longer wishes JPR, his uncle, with whom he now has no contact, but nominated in his living will in March 2005 to be his substitute decision‑maker. If a substitute decision‑maker is to be appointed he would like it to be his mother. It was difficult to engage in conversation and explore in any depth issues with the represented person because of his compromised speech which makes him difficult to understand. The Tribunal was cognisant of the fact that there was prompting by others to aid in the response to questions put by the Tribunal to the represented person.
The Public Advocate said that the difficult decisions which will need to be made around accommodation, services and finances may require an independent decision‑maker as these will be difficult decisions for a family member to make, particularly if the decisions are not in accordance with the wishes of the represented person.

Legislation

The principles to be observed by the Tribunal when making determinations in relation to guardianship and administration applications are set out in s 4(2) of the Guardianship and Administration Act 1990 (WA) (GA Act).
These principles are:
"(2)(a)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b)Every person shall be presumed to be capable of ‑
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d)A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(f)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative 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 as gathered from the person's previous actions."
Section 43 of the GA Act provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
"(1) …
(a)has attained the age of 18 years;
(b)is ¾
(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,
the Tribunal may by order declare the person to be in need of a guardian … "
Section 64 of the GA Act provides for the appointment of an administrator.
"(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 —
(a)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; and
(b)is in need of an administrator of his estate … "

Findings and reasons

In this case two applications for orders were made, one for guardianship and one for administration. Although there are slightly different requirements to be satisfied in making these orders, both depend on evidence in relation to the represented person's capacity to make reasonable judgment in relation to lifestyle and financial matters.

Capacity

With regard to the represented person's capacity to make reasonable judgments in relation to lifestyle and financial matters, the Tribunal carefully considered the evidence provided in the written reports from Dr P, the applicant, KB, the program co-ordinator, the carer and the evidence provided at the hearing by the parties and the represented person himself.
Dr P, although he has not seen the represented person for more than a year, has been treating him for three and a half years for the diagnosed neurological illness which has a known degenerative process. The Tribunal accepts Dr P's assessment that the represented person lacks the capacity to make reasonable decisions about his lifestyle or finances.
The applicant and the speech pathologist from the neuroscience unit provided compelling evidence in relation to the represented person's cognitive impairment which they say does not allow him to analyse information or a situation and to make decisions and judgments taking into account the consequences of those decisions. This is evident in the represented person's decisions about financial expenditure where his reluctance to spend his money, coupled with his dislike of the taste of the necessary, expensive dietary supplement, has the potential to put his life at risk.
The carer stated in her written report to the Tribunal that she does not believe the represented person needs, at this time, either a guardian or an administrator because decisions can be made in consultation with the care providers. The carer acknowledged in her evidence provided at the hearing that the represented person is not able to understand the consequences of his decisions, particularly in regard to his health.
The Tribunal heard evidence both from the mother and others that she does not agree with the neuroscience unit and Dr P's assessment of the represented person's loss of capacity, and believes that he still has the capacity to make reasonable judgments in respect of both his lifestyle and health care. While acknowledging that the mother is familiar with the progression of the disease because she has been closely involved with several family members who had, and have, the disease, and while empathising with the mother's view, the Tribunal gives more weight to Dr P and the neuroscience unit's assessment of the capacity of the represented person.
The Tribunal finds that the represented person no longer has the capacity to make reasonable judgments or decisions for himself about lifestyle, health or financial matters and is therefore a person for whom orders can be made.

Need

As set out in the legislation, the appointment of a guardian or an administrator requires the Tribunal to find there is a need for an order and that the needs of the person cannot be met by any means less restrictive of the person's freedom of decision and action.
In this case the represented person has a progressive, degenerative disease which requires ongoing medical intervention and support services to allow him to continue to live in his own home as long as possible and in accordance with his wishes. He currently receives funding from Disability Services which allows him to live independently in his own home with 10 hours, 7 days a week, paid carer support. As his condition deteriorates and 24‑hour care becomes necessary, a decision will need to be made about the most appropriate accommodation options for him. Currently there are health issues which are not being satisfactorily addressed or managed, and decisions need to be made about the most appropriate medical treatment and care required.
It is difficult in this case to separate the need for a guardian from the need for an administrator as the represented person's decisions in relation to expenditure of his funds impact directly on his health and safety. This is particularly evident in his reluctance to spend the money required to purchase the medically prescribed expensive dietary supplement which the Tribunal accepts is essential in ensuring he maintains the weight necessary to ensure his health and quality of life are as good as can be, given the inevitable progression of the disease which will eventually take his life.
The Tribunal finds that there is a need for the appointment of an administrator to budget and make the difficult decisions in relation to expenditure, particularly in relation to health and safety‑related purchases such as the dietary supplement and a monitored alarm system.
In addition, the Tribunal finds that there is a need for the appointment of a guardian to make decisions in relation to medical matters, services which may be required to maintain the represented person in his own home as long as practicable and to make decisions about appropriate accommodation when it may no longer be practicable for the represented person to remain living in his own home.

Wishes of the represented person

While the Tribunal endeavours to take into account, where appropriate, the wishes of the represented person, it is incumbent on the Tribunal to make a decision that is in the best interests of the represented person. The Tribunal accepts that it was the most recently expressed wish of the represented person that if orders were to be made he wanted his mother to be appointed in both the roles of administrator and guardian. In March 2005, the represented person nominated an uncle, who no longer plays a role in his life, as the person to make decisions on his behalf and now is nominating his mother. It is not clear what his wishes would have been prior to the cognitive deterioration which is now evident.

Best interests of the represented person

The Tribunal considered the proposal by the represented person's mother and her partner to take on the roles of guardian and administrator but finds that it is in the best interests of the represented person that these roles be vested in an authority outside the family.
The decisions which need to be made are likely to be at odds with the wishes of the represented person who is clearly reluctant to consider a move to alternative accommodation or to spend his money on necessary items and services to maintain his health and to support him in a safe manner in his home.
Unfortunately, his mother, because of her reluctance to accept the degree of cognitive impairment, in the opinion of the Tribunal gives too much weight to the represented person's wishes, and believes that he still has the capacity to make reasonable decisions for himself about matters which impact on his health, safety and welfare. It is the opinion of the Tribunal that it would be difficult, if not impossible, for the mother to make the decisions about health care, services and accommodation which need to be made both now and in the future if these are at odds with the represented person's wishes. Further, it is the opinion of the Tribunal that if the mother made decisions which were at odds with the wishes of the represented person, this would have the potential to impact in a negative way on the obviously close and supportive relationship the mother now has with the represented person.
As the disease progresses, the mother may accept that the represented person no longer has the capacity to make reasonable decisions for himself and, if willing, she may at that time be suitable to be appointed to make those decisions for him.

Decision

The Tribunal considered all the evidence available prior to and at the hearing and is satisfied that the represented person is a person for whom orders can be made. The Tribunal further finds that it is in the represented person's best interests that both guardianship and administration orders be made.

Orders

The Tribunal made the following orders:
1.The Public Advocate is appointed limited guardian with the functions of making decisions in relation to accommodation, health care and services.
2.The Public Trustee is appointed plenary administrator.
3.Both orders are to be reviewed in one year.

I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER