RS
[2016] WASAT 17
•29 FEBRUARY 2016
RS [2016] WASAT 17
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 17 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2353/2015 | 6 AUGUST AND 24 NOVEMBER 2015 | |
| Coram: | MS F CHILD (MEMBER) | 29/02/16 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Public Advocate confirmed as guardian | ||
| B | |||
| PDF Version |
| Parties: | RS |
Catchwords: | Guardianship and administration Review of guardianship order Represented person noncompliant with decisions of guardian Need for guardian Continuing vulnerability of the represented person to exploitation Enforceability of an order not a criteria for appointment of guardian |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b) and s 43(1)(c), s 84 |
Case References: | NCK [2004] WAGAB 6 |
Summary | The Tribunal confirmed the appointment of the Public Advocate as guardian of the represented person, a woman with an intellectual disability. The Tribunal was satisfied the represented person was a person for whom the order could be made. The Tribunal found the represented person's circumstances were largely unchanged from when the orders were first made, and she remained vulnerable to exploitation and required a substitute decisionmaker in her best interests. ,The Public Advocate submitted that the guardianship order should be revoked as the represented person would not comply with the decisions of the guardian. Although the Tribunal acknowledged the difficulty of the guardian in giving effect to decisions made, with adverse consequences for the represented person, the Tribunal determined the guardianship order should be confirmed. ,At the time of the review, the represented person was living with her daughter who acknowledged she was experiencing significant problems of her own. The Tribunal found that the history had been that the daughter had made decisions which were not in the best interests of the represented person. Further, the Tribunal considered that the situation of the represented person could deteriorate rapidly and she might again be placed at immediate risk of harm and, in those circumstances, there should not be delay in dealing with her needs, which would occur if the order was revoked and a new application was required to be made.,As the represented person's file with the Local Area Coordinator of Disability Services Commission had reportedly been closed, and her contact with service providers and her supportive sister was largely controlled by her daughter, there was a lack of oversight of her personal circumstances other than by the appointment of a guardian.,Due to the complexity of the problems being experienced by the represented person, the Tribunal determined that a plenary order was in the best interests of the represented person. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RS [2016] WASAT 17 MEMBER : MS F CHILD (MEMBER) HEARD : 6 AUGUST AND 24 NOVEMBER 2015 DELIVERED : 29 FEBRUARY 2016 FILE NO/S : GAA 2353 of 2015 MATTER : RS
- Represented Person
Catchwords:
Guardianship and administration - Review of guardianship order - Represented person noncompliant with decisions of guardian - Need for guardian - Continuing vulnerability of the represented person to exploitation - Enforceability of an order not a criteria for appointment of guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b) and s 43(1)(c), s 84
Result:
Public Advocate confirmed as guardian
Summary of Tribunal's decision:
The Tribunal confirmed the appointment of the Public Advocate as guardian of the represented person, a woman with an intellectual disability. The Tribunal was satisfied the represented person was a person for whom the order could be made. The Tribunal found the represented person's circumstances were largely unchanged from when the orders were first made, and she remained vulnerable to exploitation and required a substitute decisionmaker in her best interests.
The Public Advocate submitted that the guardianship order should be revoked as the represented person would not comply with the decisions of the guardian. Although the Tribunal acknowledged the difficulty of the guardian in giving effect to decisions made, with adverse consequences for the represented person, the Tribunal determined the guardianship order should be confirmed.
At the time of the review, the represented person was living with her daughter who acknowledged she was experiencing significant problems of her own. The Tribunal found that the history had been that the daughter had made decisions which were not in the best interests of the represented person. Further, the Tribunal considered that the situation of the represented person could deteriorate rapidly and she might again be placed at immediate risk of harm and, in those circumstances, there should not be delay in dealing with her needs, which would occur if the order was revoked and a new application was required to be made.
As the represented person's file with the Local Area Coordinator of Disability Services Commission had reportedly been closed, and her contact with service providers and her supportive sister was largely controlled by her daughter, there was a lack of oversight of her personal circumstances other than by the appointment of a guardian.
Due to the complexity of the problems being experienced by the represented person, the Tribunal determined that a plenary order was in the best interests of the represented person.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
NCK [2004] WAGAB 6
Reasons of the Tribunal
1 These are the reasons of the Tribunal for the decision to confirm the appointment of the Public Advocate as guardian of RS (represented person) on review, pursuant to s 84 of an order dated 1 July 2014. By that order, the Public Advocate was appointed limited guardian to decide where and with whom the represented person is to live, to determine services and contact she should have with others, and to advocate for her in respect of contact with her grandchildren who are in the care of the Department of Child Protection. The order was set for review by August 2015.
2 The review was heard on 6 August and 24 November 2015 together with a review of an order appointing the Public Trustee as plenary administrator of the represented person's estate.
3 At the first hearing, the represented person, her daughter, RD, and her sister, SW, attended together with the delegated guardian of the Public Advocate. The matter was adjourned to enable the Tribunal to hear directly from the Local Area Coordinator (LAC) of the Disability Services Commission (DSC) with whom the represented person is registered as a client. The LAC had attempted to contribute at the first hearing by telephone but due to technical problems could not be heard. The hearing was adjourned to enable the LAC to attend in person. Later, the LAC reported that he had had no further contact with the represented person and so had closed his file. He did not attend the reconvened hearing.
4 At the final hearing, the represented person, her sister, SW, her daughter, RD, and a friend of RD's attended the hearing. The Public Trustee's trust manager was connected by telephone. In the course of the hearing, telephone contact was made with the delegated guardian.
5 At the final hearing, the Public Trustee was confirmed as plenary administrator of the estate of the represented person. The decision of the Tribunal on the review of the guardianship order was reserved. These are the reasons for the decision made on the guardianship review.
Principles to be observed
6 In all proceedings brought under the Guardianship and Administration Act 1990 (WA) (GA Act), the Tribunal must observe the following principles (s 4 of the GA Act):
7 The primary concern of the Tribunal must be the best interests of the person concerned.
8 Every person is presumed to be capable of looking after her own health and safety, of making reasonable judgments in matters relating to her person, of managing her own affairs, and of making reasonable judgments in respect of matters relating to her estate. A guardianship order may not be made where there is a less restrictive alternative to meet the needs of the represented person. Any order that is made must be in terms that impose the least restrictions on the represented person's freedom of decision and action. The Tribunal must ascertain the wishes of the represented person.
9 To appoint a guardian, the Tribunal must be satisfied that the person for whom the order is sought is unable to look after her own health and safety, is unable to make reasonable judgments about her person or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others, and that the person is in need of a guardian: s 43(1)(b) and s 43(1)(c) of the GA Act.
Is the represented person a person for whom a guardianship order may be made?
10 A review of the file held by the Tribunal for the represented person indicates that when orders were first made, the represented person was a registered client of the DSC as she has a lifelong intellectual disability and was reported as 'eligible to receive services' from DSC since 1955. It is reported she received supported education and previously worked in supported employment with Good Samaritan Industries.
11 An assessment conducted by a clinical psychologist, LH, dated 21 July 2003 reports that the represented person has 'well below average intellectual ability'.
12 The opinion of LH expressed at that time was:
[The represented person] is extremely vulnerable to abuse and exploitation by other people, particularly her daughter. In addition to her limited capacity to make reasoned and informed judgments, she lacks insight into situations and the behaviour of others … [The represented person's] vulnerability to exploitation and abuse by others is further compounded by her unwillingness to seek assistance when she's in an exploitative situation.
13 In the opinion of LH, the represented person 'does not recognise when she is being exploited or abused'.
The report goes on to say:
[The represented person] is extremely vulnerable to financial exploitation and abuse. In addition to her limited capacity to make reasoned and informed judgments, she has limited numeracy concepts, arithmetic and money skills.
LH states:
[The represented person] is extremely suggestible to the influence of other people, especially her daughter. [The represented person's] suggestibility and vulnerability to exploitation means that her capacity to make decisions in her own best interest is limited.
[The represented person has] apparently mild dementia as determined from transferred records from previous GP [but] this was not obvious on the two occasions I saw her this year.
15 Dr B was 'not sure' whether the represented person was capable of making decisions about her personal health care, her living situation or her financial affairs; he noted:
At my last consult in March [2015] she appeared lucid and related well her fears etc. At that time I judged her capable of determining her own affairs'.
16 In a letter addressed 'To whom it may concern Public Trustee' dated 24 March 2015, handed up at the hearing by the daughter of the represented person, Dr B states:
I have seen [the represented person] on a number of occasions in consultation. It is my considered opinion that she is mentally and cognitively capable of making a will and that she has full ability to understand the ramifications of any decision she makes in her will.
17 A report by Dr M, another general practitioner, dated 25 August 2015 states that he has known the represented person for two months and had diagnosed 'suspected cognitive impairment - awaiting initial specialist appointment'. The doctor reports 'unknown' in response to a question regarding prognosis, and goes on to say 'from limited clinical contacts appears stable last two months' … 'collateral history from relatives suggests may be progressive over the last few years'. The doctor was 'not sure' whether the represented person was capable in the spheres of personal health care or living situation, but said she was 'capable' in the sphere of financial decisionmaking. He reported an Addenbroke's score of 55/100 and an MMSE of 15/30. It is not clear from his report whether Dr M conducted these tests himself or relied on other reports. It is understood that Addenbroke's is an expanded assessment tool for screening dementia.
18 It is understood the cutoff score for suspected dementia in the Addenbroke's assessment is in the mid 80s. Further, it is understood that a score of between 10 and 20 on the MMSE indicates a 'moderate dementia'. Consistent with this, in a letter handed up at the hearing by the represented person's daughter dated 27 July 2015, Dr M states the following:
I can confirm that the above named patient currently resides with her daughter who is acting as a carer for [the represented person]. I would be concerned if [the represented person] were not residing with her in view of her medical needs and cognitive impairment[.]
19 In the report of the LAC dated 6 June 2015, the LAC confirms the diagnosis of intellectual disability and states that there is 'historical evidence that suggests that [the daughter of the represented person and her son-in-law] have financially exploited [the represented person] in the past'. The LAC says he had only known the represented person for a short time and was not in a position to make an assessment of the requirement for a guardian or an administrator; however, he believes 'the status quo should remain' as he 'has no other information to suggest that [the represented person] should not be subject to the orders'.
20 In the written submission of the delegated guardian of the Public Advocate dated 3 August 2015, the guardian states the following:
Based on [the represented person's] diagnosis, presentation, medical reports and registration with the Disability Services Commission the Public Advocate is satisfied [the represented person] is a person for whom an order could be made pursuant to section 43(1)(b) of the Guardianship and Administration Act 1990.
21 The Tribunal accepts this submission and prefers the evidence of the clinical psychologist to that of Dr B or Dr M to the extent that they are inconsistent. Both general practitioners' reports do not refer to the represented person having an intellectual disability. It appears that the doctors rely on either the represented person's reports of her history or that of her daughter, who reportedly accompanied the represented person to appointments. Neither doctor appears to have had longterm contact with the represented person. The assessment and conclusions of the clinical psychologist are consistent with the represented person's presentation and reported functioning in the community. The Tribunal is satisfied she remains a person for whom a guardian may be appointed as she is unable to look after her own health and safety, is not able to make reasonable judgments about her person and is in need of oversight and care in the interests of her own health and safety.
Is the represented person in need of a guardian?
22 The Public Advocate submits that the appointment of the guardian was to protect the represented person from the influence of her daughter, RD, and RD's partner, M. However, the guardian has found it 'practically impossible' to protect the represented person as the represented person consistently ignores the advice of others and the rules of the accommodation which was purchased for her, and was choosing to spend the majority of her time with her daughter and her daughter's partner.
23 The accommodation purchased for the represented person is an over 55 retirement unit chosen with her agreement and into which she moved in early February 2015. Following this, RD and M, who had reportedly been evicted from their own accommodation for nonpayment of rent, moved in with her, in breach of the rules of the complex, and reportedly jeopardised the represented person's tenure there. It is alleged that M and RD obtained the address of the property by contacting the sister of the represented person and alleging RD was subject to domestic violence. It is alleged that RD and M threatened the manager and other residents at the complex where the represented person was living. It is also said that they made abusive and threatening telephone calls to the guardian. It is also alleged that a false allegation was made to the police that the represented person was not receiving proper care from her sister, SW, with whom the represented person had been staying prior to moving to the new property.
24 At the time of the review hearing, the represented person reported that she is living with her daughter at her private rental accommodation. When the allegation about the police report was put to RD in the hearing, she acknowledged that a false report had been made to the police to 'hurt [her] aunty' (T:35; 24.11.15). RD said that M's brother had made the complaint.
25 RD acknowledged that this had happened in 2015 but referred to it being in the past. RD said she was 'looking forward'. She said that it was her choice that the represented person had come to live with her and that she took full responsibility for it (T:39-40; 24.11.15).
26 The guardian reports that the represented person was uncontactable after abandoning the over 55 unit and eventually it was discovered she was living with RD and M and refusing to return to the unit.
27 Orders were first made appointing the Public Advocate as guardian for the represented person in March 2003. The Public Trustee was appointed plenary administrator of the represented person's estate at the same time. The guardianship order was confirmed on review in August 2003 for a further two years. In 2005, the order was again reviewed and confirmed for a further two years. In 2007, the order was again confirmed for a period of one year. The order was reviewed in 2008 and confirmed for a further period of two years. On review of the order in August 2010, the guardianship order was revoked.
28 In the note of the member on the file, it notes that:
… the current contact between the daughter and soninlaw who has been out of prison for six weeks, and is on parole, is positive. Accommodation is permanent in [a] house owned by the represented person in [a country town]. If later need for guardianship, the LAC, represented person, or her sister will alert the appropriate authority.
- The revocation of the order was not supported by the then LAC.
29 A further application was made to the Tribunal by the then LAC in 2014 and the Public Advocate was again appointed limited guardian. The order was set for review by August 2015 and is the order which is currently under review.
30 The LAC who was the applicant for the existing order reports she had known the represented person for five years. Her report dated 11 June 2014 documents what she assessed as attempts by the represented person's daughter and soninlaw to control and socially isolate the represented person; to exploit her financially; and to control her activities. In the report, the LAC states that the couple had moved into the represented person's home in the country town in 2010 after a Violence Restraining Order to restrict contact between RD and M and the represented person had lapsed. According to the LAC, the strategies used by RD and M to socially isolate the represented person included M making unfounded reports to authorities about the friends and neighbours of the represented person.
31 The LAC alleged that her contact with the represented person was restricted by RD and M and that a welfare worker had been verbally abused and threatened by RD and would no longer visit the represented person at her home.
32 The material on the previous folios of the Tribunal's file indicates that there were historical allegations from multiple sources of longterm financial abuse of the represented person by RD and that, in the past, the behaviour of RD had placed the represented person at significant risk of violence and abuse.
33 The situation was said to have worsened when RD formed a relationship with M who is reported to have substance misuse issues. This was acknowledged by RD at the recent hearings. RD said in the hearing that she had been in a relationship with M for nine years and they had five children from the relationship. At the time of the hearings (in August and November 2105), M was in custody, having been remanded in custody in April 2015 after being charged, according to RD, with aggravated robbery. Although RD reports that there was a trial allocation date on 29 January 2016, she expects the charges to be dropped, as M denies the allegations and she said he would usually 'put his hand up' straight away if he had committed an offence and 'not waste people's time'.
34 In the recent hearings, RD acknowledges her history of drug misuse but says that she has been drugfree for many years, is in counselling and is returning clean urinalysis. She says that she must do this to maintain contact with her children who are all in the care of the Department of Child Protection. RD said that she had made considerable efforts over the years.
35 RD acknowledges that she has been the victim of domestic violence from M on more than one occasion, most recently in 2015 when they learned that their twoyearold daughter would not be returned to their care. She said:
But what he done to me I didn't deserve, you know, when - like he made Mum feel intimidated or scared, he had no right, you know. But he has apologised for that, you know. (T:19-20; 24.11.15)
- RD reports that M was convicted of the recent assault of her and had been fined.
36 RD said that M had undergone counselling while in custody on the recent charges and was participating in a number of programmes and was 'trying to change'. She said he had said:
How am I to change if all you're going to do is keep bringing the past up? How can we move forward if you're not letting that happen? (T:19; 24.11.15)
37 RD did acknowledge that it was 'a worry him getting out' but that he was trying and she had to give him a chance (T:23; 24.11.15).
38 RD said that she had arranged the represented person to attend a church group and had taken her to the doctor. She said she was doing this because she 'owe[d] her for everything [she] put her through …' (T:40; 24.11.15).
39 RD said she had claimed a carer's pension which had been suspended for a time but more recently had been reinstated. She believed that the Public Trustee should provide additional funds to support the represented person living at the property with her. The Public Trustee reported that the represented person continued to have expenses associated with the abandoned unit.
40 The Public Trustee's trust officer reported that a pattern had developed whereby the accommodation of the represented person was changed to deal with the influence of people who have exploited her. He reported that previously a property she had owned in the metropolitan area had been sold and the property in a country town had been purchased. That property was then sold in 2014 and the over 55s unit had been purchased in 2015 in the outer metropolitan area. He said that on each occasion of purchase and sale, the represented person had suffered a financial loss.
41 In his report, the Public Trustee's trust officer proposed that there be gifting authority for the grandchildren of the represented person. He said that he understood that the represented person's contact with her grandchildren was independent of the contact that RD had with them.
42 SW said she had not been consulted about the over 55s unit and believed it was too geographically isolated to be appropriate for the represented person. She said that at the present time, the situation seemed to be working with the represented person living with RD. Shesupported the reappointment of a guardian, but did not propose herself for appointment.
Need for the order
43 Although acknowledging the difficulty in giving effect to the decisions of the guardian the Tribunal finds that the represented person remains in need of a guardian.
44 The represented person has her own accommodation in which she refuses to live, and is living with her daughter in private rental accommodation. RD says she is paying $700 per fortnight for rent. It is difficult to see how this could be sustained on her income alone.
45 From RD's description of her circumstances it is clear she has very significant personal problems and challenges: she is on a very low income and is living in private rental accommodation; her partner is facing serious criminal charges; her children are in outofhome care and she has limited contact with them; and she has experienced a history of substance misuse and domestic violence.
46 Although RD states she is committed to the interests of the represented person, she acknowledges the history and says that the decision to move the represented person from the accommodation was hers.
47 RD's own problems are so significant, it appears to the Tribunal, that she is unable to differentiate between her needs and interests and the needs and interests of the represented person as distinct from her own. This is apparent in the decision to move into the represented person's home and then to move the represented person from that home to live with her. There has been a lack of cooperation or effective communication with the guardian. In addition, given the acknowledged history, there is significant concern about the release of M from custody.
48 Although the Tribunal accepts the submission of RD that M is engaged in counselling and is reported to be trying to change, she herself appeared to acknowledge the history and the impact that violence and threatened violence has had on the represented person.
49 RD says she is trying to provide appropriate care for the represented person and challenges the views of others about her past behaviour. It is the case, however, that in the recent reports there are allegations of similar conduct of verbal abuse and false allegations made to the police. It also seems apparent that there is restriction on the contact of the represented person with the guardian.
50 Although RD may genuinely regret her past behaviour and she has hopes for improvement in the situation, both for herself and the represented person, there are considerable risks associated with M's release from custody which she herself acknowledges.
51 The intractability of the represented person's situation, despite efforts of the delegated guardian and the trust manager, has resulted in considerable frustration, which was obvious from their contributions to the hearing - in the comments made by the trust manager and the unwillingness of the delegated guardian to attend the final hearing, even when invited to attend by telephone. However, the intractability of the problems faced by the represented person reinforces her ongoing vulnerability.
52 The Tribunal finds that the represented person remains in need of a guardian. The enforceability of the decisions of the guardian is not part of the statutory criteria which the Tribunal is bound to apply on review of the order.
53 In NCK[2004] WAGAB 6, at 63 and 64, the Full Board of the Guardianship and Administration Board, when considering the need for a guardianship order and whether the orders were capable of enforcement in another country, said [at 64]:
It follows that whether a person is in need of a guardian is the ultimate touchstone in relation to which the Board must decide that the order should be made. The concept of need is not to be determined by reference to whether particular 'authoritative' decisions are required on behalf of a person, but whether there is, or may be, a need for a guardian to intervene, in a more generalised sense, in the affairs of that person: see Re Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR(WA) 320; Re LGW[.] Review of Guardianship Order, unreported decision of the Board delivered 7 May 2004 (Ms P Eldred, Presiding Member, Ms F Child and Ms H Leslie, Members), citation added.
Wishes of the represented person
54 In a letter handed up at the first hearing which she acknowledged RD had assisted her to write, the represented person indicated that she was living with her daughter and that it was 'the best it had ever been' and she was 'the happiest she had ever been'. She said her daughter takes her to all her doctor's appointments and they go shopping together. She reported that the LAC 'came out to see if I was fine, he was happy I was safe and well' and that her daughter was going to drug counselling and had 'clean' urinalysis. She said that living with her daughter, she 'gets to see her grandchildren and go to the shops whenever she likes'. The represented person was critical of decisions made by the Public Trustee in relation to the payment of an allowance.
55 At the hearing at which the 2014 order was made, which the represented person attended together with the then LAC, the represented person had said that she was frightened of M. She said that '[M] belittles me won't let me go to work, made me get [a] dog I didn't want, he raised his hand to me [and] he hit [RD] and dominated me'. At that hearing, she supported the appointment of a guardian.
When asked about these comments in the final hearing, the represented person said she 'used to be' afraid of M but that it was 'all right now'. She said 'I don't see him'. She acknowledged she had seen RD assaulted and said 'It worries me about [RD] getting hurt' … 'And I don't want anything to happen to her'. (T:1415; 24.11.15)
Plenary or limited appointment
56 Given the complexity of the represented person's circumstances, the Tribunal is not satisfied that a limited order is sufficient to meet her needs. The range of functions the guardian may be required to exercise on behalf of the represented person means that a plenary order is appropriate.
Who is to be appointed
57 As there is no other proposal for appointment as guardian, the Tribunal confirms the appointment of the Public Advocate as guardian of the represented person.
Period of the order
58 As the represented person has a lifelong disability and the issues raised on review of this guardianship order are substantially the same as raised in the original application and for which orders were made in 2002 and regularly on review since, the Tribunal considers that an order for the maximum period of five years should be made.
Orders
1. On review under s 84 of the Guardianship and Administration Act 1990 (WA) of an order dated 1 July 2014 concerning the represented person, heard before Member F Child on 24 November 2015:
The Tribunal declares that the represented person:
(a) is incapable of looking after her own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to her person;
(c) is in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(d) is in need of a guardian,
and it is ordered that:
(i) The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth WA 6000 be appointed as plenary guardian of the represented person.
(ii) 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.
(iii) The Tribunal will commence a review of this order by 22 February 2021.
- I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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