RW - [2018] WASAT 52 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT:   GUARDIAN AND ADMINISTRATION ACT 1990 (WA)
CITATION:   RW [2018] WASAT 52
MEMBER:   DEPUTY PRESIDENT, JUDGE PARRY
MS D QUINLAN (MEMBER)
MS S GILLETT (SENIOR SESSIONAL MEMBER)

HEARD:   11 JUNE 2018
DELIVERED          :   11 JUNE 2018
PUBLISHED           :   27 JUNE 2018
FILE NO/S:   GAA 1495 of 2018
BETWEEN:   RW
Represented Person

Catchwords:

Guardianship - Review by Full Tribunal of determination by single member to appoint Public Advocate as limited guardian to make decisions including where represented person should live and whether represented person should travel outside Western Australia - Represented person resided in nursing home in New South Wales near rural property where she had lived with her husband of 47 years - Represented person driven by her daughters to Western Australia without approval of husband who is enduring guardian in New South Wales - Significant improvement in physical and cognitive state of represented person since living with her daughters in Western Australia - Significant and irreconcilable conflict between represented person's husband and daughters in relation to whether she should reside at nursing home in New South Wales or with her daughters in Western Australia

Legislation:

Guardian and Administration Act 1990 (WA), s 4(4), s 17A, s 43(3), s 44(1), s 44(2), s 43, s 86
Guardianship Act 1987 (NSW)

Result:

Limited guardianship order appointing Public Advocate to make decisions in relation to accommodation, travel, contact and services
Limited guardianship order appointing daughters to make decisions in relation to treatment
Direction made requiring daughters to consult with and inform represented person's husband in respect of significant health matters or decisions

Summary of Tribunal's decision:

The represented person is an 89 year old lady with dementia. She lived with her husband of 47 years on a rural property in New South Wales before moving to a nursing home in a town near that property. The represented person has three daughters from an earlier marriage who live in Perth. As her daughters were concerned about her physical and mental decline while in the nursing home, they removed her from that facility and drove her to Perth, without the approval of the represented person's husband, who is her enduring guardian in New South Wales.
The daughters sought guardianship and administration orders in Western Australia. A single member appointed the Public Advocate as limited guardian in relation to decisions concerning accommodation, travel, contact, services and treatment and appointed the Public Trustee as plenary administrator. The daughters sought review by a Full Tribunal in relation to the guardianship order and sought their appointment as guardians for their mother.
The Full Tribunal reappointed the Public Advocate as limited guardian for accommodation, travel, contact and services, because there is a significant and irreconcilable conflict between the represented person's daughters and husband as to whether she should go back to the nursing home in New South Wales or continue to reside with her daughters.
The Full Tribunal accepted the Public Advocate's submission that it is in the represented person's best interests for her daughters to be appointed limited guardians to make treatment decisions. However, the Tribunal imposed a condition on this appointment by directing the daughters to consult with and inform the represented person's husband in respect of significant health matters or decisions.

Category: B

Representation:

Counsel:

Represented Person

In Person

Solicitors:

Represented Person

In Person

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Background

These are the Tribunal's reasons for decision in relation to an application for review under s 17A of the Guardianship Administration Act 1990 (WA) (GA Act), brought by LE, JS and RS (daughters) in relation to a guardianship order made for their mother, RW (represented person).
The represented person is an 89-year-old lady, who until about eight months ago lived in New South Wales. She has three adult daughters, LE, JS and RS. She had a son, who sadly passed away. The represented person has been married to KW (husband) for the past 47 years. The husband resides on a property near Gunnedah in New South Wales, where the represented person also lived until about two years ago when she went into a nursing home in Gunnedah.
In October 2016, the represented person was unfortunately diagnosed with a moderate cognitive impairment by her general practitioner who performed a mini-mental state examination, recording 17 out of 30. Also that month, that is, in October 2016, Dr H, the director of Rehabilitation and Aged Care Services at the Hunter New England district in New South Wales, noted in a medical report a cognitive decline occurring in the represented person's state over a period of probably two years.
Dr H conducted a mini-mental state examination and found 16 out of 30 as the result. He diagnosed that the represented person suffers from dementia, probably due to Alzheimer's disease.
In 2012, the represented person appointed the husband as her enduring guardian in the event that she should lose capacity, and also appointed him to be her attorney under a power of attorney. Both of those instruments were made under the Guardianship Act 1987 (NSW). Those instruments were made in particular and executed on 6 August 2012.
Notwithstanding the enduring guardianship entered into in August 2012, and notwithstanding the diagnosis of dementia, on 10 July 2017, the New South Wales Civil and Administrative Tribunal made a limited guardianship order appointing the Public Guardian of that State, the equivalent to the Public Advocate in Western Australia, as limited guardian for the represented person to make healthcare and accommodation decisions for her for a three-month period.
The effect of that order was that on 10 October 2017 the enduring power of guardianship would revive and operate appointing the husband as enduring guardian for the represented person. During the currency of the guardianship order in New South Wales, on 15 September 2017, the Public Guardian determined that the represented person should remain a permanent resident in the nursing home where she had been, up until that time, a temporary resident in Gunnedah.
Three days after the enduring power of guardianship revived at the end of the limited guardianship order in New South Wales, the daughters took the represented person out from the facility in Gunnedah, indicating that that would be for lunch, but in fact drove her across the country to Perth. They said in various submissions to the Tribunal that they did so because of their significant concerns about her care and treatment in the nursing home.
In one submission to the Tribunal, they said that, '[i]t was a matter of life and death when we took mum from the nursing home in New South Wales. She begged us to take her'. In another submission they said that '[o]ur mother would have died a painful, lonely death'. In a number of submissions, they indicated that, although the nursing home in Gunnedah was registered and a relatively modern facility, their mother was lonely and had a decline both physically and cognitively in the year that she was there.
After the represented person's daughters brought her to Perth about eight months ago, she started living with her daughter, RS, mostly, and every second weekend with her daughter, LE, who has a property with animals. The evidence indicates clearly and without any question that the represented person's physical and, to some extent, cognitive abilities have improved significantly since she has been in the care of her daughters in Perth.
She has gained 10 kilos in weight and, according to reports by a range of allied health professionals and health professionals, she has made relatively significant improvements, even in her mental state.

Guardianship and administration orders in Western Australia

In January, and, in particular, on 29 January 2018, on the application of the represented person's daughters, the Tribunal determined whether guardianship and administration orders should be made in Western Australia. The Tribunal appointed the Public Advocate as limited guardian and the Public Trustee as plenary administrator for the represented person on 29 January 2018.
The Public Advocate subsequently applied under s 86 of the GA Act for a review of the authorities, and in particular sought an authority to determine whether the represented person should travel outside Western Australia, and the terms and conditions upon which she should travel. That was requested by the Public Advocate as one of the options she was considering under the authority to determine where the represented person is to live, and with whom she is to live, was a return to the nursing home in New South Wales. The Tribunal considered that application on 27 April 2018 and a single member of the Tribunal, Senior Member Mansveld, confirmed the guardianship order and added that authority.
The guardianship order as confirmed on that date, that is, on 27 April 2018, was to appoint the Public Advocate as limited guardian for 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 GA Act, to make treatment decisions for the represented person;
(d)to determine what contact, if any, the represented person should have with others, and the extent of that contact;
(e)to determine the services to which the represented person should have access; and
(f)to determine whether the represented person is to travel outside Western Australia, and the terms and conditions upon which travel is to take place.
The guardianship order was made or confirmed for a limited period of three months until 29 July 2018, which incidentally is the date of review of the administration order appointing the Public Trustee as plenary administrator.

Application for review by Full Tribunal

The daughters seek review of that guardianship order. They apply to the Tribunal for the appointment of one or all of them as guardian for their mother. Their position is that they are better placed than the Public Advocate, and better placed than any other person to be the guardian. They consider that they are ideally suited to be the guardian given the care that they have provided to their mother since she has lived in Perth over the last eight months.
They indicate that since she has been in Perth, there has been, as we have said, considerable improvement in the represented person's physical and mental state, and that they have facilitated telephone access between the represented person and her husband in a programme put in place by the Public Advocate twice a week.

Consideration of application for review by Full Tribunal

Every person is presumed to be capable of making reasonable decisions for themselves in relation to their personal circumstances. That is a presumption that underlies the GA Act. The presumption applies unless there is cogent evidence presented to the Tribunal to rebut the presumption.
In particular, in relation to guardianship, under s 43 of the GA Act, a guardianship order may not be made for a person unless the Tribunal is satisfied that the person is incapable of looking after her own health and safety, or is unable to make reasonable judgments in respect of matters relating to 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 is in need of a guardian.
There is no dispute that notwithstanding improvements made in the represented person's mental state over the last several months that she is a person for whom a guardianship order can be made. In particular, on the medical evidence that we have referred to, which is not in any way disputed, we find and declare that the represented person is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person, and is in need of oversight care and control in the interests of her own health and safety.
The next matter the Tribunal must consider in this case is whether there is a need for the appointment of a guardian. The Tribunal takes into account the principles set out in s 4 of the GA Act, which include, in subsection (4), that a guardianship 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 Tribunal, be met by other means less restrictive of a person's freedom of decision and action.
The Public Advocate, although submitting that she should be reappointed for a limited period as guardian for the represented person, contends that, as far as treatment decisions are concerned, her daughters are best placed to be the treatment decisionmakers. We will come to that in a moment, but we have given consideration to whether, in fact, there is a need for a guardian in relation to treatment decisions and also whether there is a need for a guardian in relation to contact decisions.
In relation to treatment decisions, there is, at the moment, in effect, decision making by the daughters, and we are satisfied that they have made decisions in their mother's best interests in terms of her healthcare since she has been in Perth and had the results that we have referred to.
However, as the Public Advocate submits, there is a potential concern if there was no guardianship order made in relation to treatment, that there might be a conflict or problem with timely decisions being made, given that the husband lives in New South Wales and would, as her husband, be first otherwise to make treatment decisions if he was available, and the daughters are resident here in Western Australia.
We are of the view, on balance, that an order should be made in relation to treatment. We will come in a moment to who should be the guardian in relation to treatment.
In relation to contact, we have given consideration to whether there needs to be a guardianship order in relation to contact, because although, as we will discuss in relation to the question of authority in relation to accommodation, there is significant conflict between the views of the daughters, on one hand, and of the husband, on the other, as to where the represented person should live, as a consequence of a programme put in place by the Public Advocate, it does appear that there has been satisfactory provision of contact and facilitating of that by the daughters with the husband. The Tribunal has, however, been concerned by an indication that the contact has been recorded. That was done at the direction of the first delegated guardian (who is no longer the delegated guardian for the represented person) and appears to have been directed in order to provide some protection to both the represented person and the husband in terms of what each of them said. We are concerned in terms of the privacy consequences of the recording of those conversations. We understand from the Public Advocate that that will no longer occur.
We have given consideration to whether there should be a guardianship order in relation to contact, given that it is ongoing, and we have every reason to accept the daughters' assurances to the Tribunal they will not interfere with contact.
However, ultimately, given the historically acrimonious relationship between the daughters and the husband, and given some statements to the Tribunal by the daughters as to that history, the Tribunal considers that it is in the represented person's best interests for that authority to be provided in this case.
The third issue the Tribunal must consider, and really this was the principal matter debated between the parties today, is who should be appointed as guardian. As we have said, the daughters are of the view that they should be appointed as the guardian, given particularly their mother's improvements since she has been in Perth. They want her to remain living with the daughters here in Perth.
The husband considers that the Public Advocate should be reappointed to make decisions. The Public Advocate's position or submission to the Tribunal is that, on balance, given the conflict between the members of the family, the Public Advocate should be appointed.
We consider that there is significant conflict, indeed irreconcilable conflict at least in relation to where the represented person should live. The daughters consider that she should remain in Perth. The husband considers that she should move back to Gunnedah. The Public Advocate originally indicated that the delegated guardian's view was that the represented person should move back to Gunnedah, and that appears to have been the catalyst for the review application that is before the Tribunal today.
However, more recently, the Public Advocate has indicated a preliminary view, subject to further submissions by each of the parties, and subject to further information obtained at the hearing today, that particularly given the represented person has now lived in Perth for eight months, and the improvement in her physical and cognitive abilities, that she should remain living with her daughters. A final decision has not yet been made by the Public Advocate.
We consider that it is in the represented person's best interests for there to be an independent decision-maker in relation to the question of where she should live and with whom she should live, because of the irreconcilable conflict between the daughters and the husband in relation to that matter. A decision needs to be made and, in our view, should be made by an independent decision-maker.
Section 44 of the GA Act concerns who should be appointed as guardian. It states in subsections (1) and (2) as follows:
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person’s estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
The represented person and the husband have been married for 47 years. The represented person has also, since she has been in Perth, indicated a desire, it appears, to third parties that she wishes to remain living with her daughters. She does not appear to have indicated who she would like to be her substitute decisionmaker.
In terms of the desirability of preserving existing relationships within the family, in our view, the appointment of the daughters would be contrary to that matter. Furthermore, for reasons that we have given, there is an irreconcilable conflict between the daughters on the one hand, and the husband, as to where the represented person should live. That irreconcilable conflict, in our view, makes the daughters not suitable to act as the guardian in relation to accommodation decisions.

We have given, as we have said, thought to whether there should be any authority in relation to contact. We think, on balance, that given the history of the acrimonious relationship between the daughters on the one hand, and the husband on the other, that although, at the moment, there is ongoing contact, and we accept that the daughters intend to continue to facilitate that contact, that it is in the represented person's best interests for an independent guardian, that is the Public Advocate, to continue in that function for the limited period that we will be making the guardianship order for.
In relation to services and authority to travel, we accept the Public Advocate's submission that those authorities are intrinsically bound up, given the circumstances of this case, with authority in relation to accommodation, and that it is in the represented person's best interests for the Public Advocate, as guardian, to have authority in relation to services and travel.
The next matter that the Tribunal must consider is the authorities that should be given to the guardian. We've already referred to those authorities in the context of determining who should be appointed.
The final matter that the Tribunal has to consider is the period of the order. We accept the Public Advocate's submission that the order should be limited to six months.
Perhaps a shorter order than six months might technically be possible, however we think that in order to provide the Public Advocate with an adequate period to obtain the submissions on her preliminary view that the represented person should remain in Perth, and in order for any consequent decisions to be implemented, a six month order is appropriate.
There are three further matters that we wish to address in the context of the guardianship order. The first is, we note the criticisms made by the daughters of the Public Advocate in terms of the manner in which she has and her delegated guardians have exercised the authorities given.
This is a very difficult case. We have no doubt that the Public Advocate has acted in the best interests of the represented person in a very difficult case. It is a case that balances a marriage of 47 years against the obvious care that has been shown to the represented person by her three daughters in Perth, which has borne the fruit of clearly an improved physical and mental state. It also involves balancing, given the physical distance between Gunnedah and Perth, on the one hand, an accommodation decision that would enable the represented person to have daily contact with her husband of 47 years, and on the other, enabling her to have continuous contact with her daughters, who have obviously shown care and love for her.
One could scarcely imagine a more difficult decision for a guardian to make. Having read the Public Advocate's letter to the parties advising of her preliminary view, as well as the reports provided by the Public Advocate to the Tribunal, the Tribunal has absolutely no doubt that the Public Advocate had acted in the best interests, and continues to act in the best interests of the represented person in a very, very difficult guardianship task.
The second matter is to say, as we said to the parties during the hearing, that it is not the task of the Tribunal in this review to determine where the represented person should live; it is rather to determine, as we've said, whether a guardianship order can be made and, if so, who should be appointed and what authorities should be given.
The final matter that we wish to discuss, as we propose to make a direction about this in the orders, concerns a restriction in relation to authority to make treatment decisions. We accept that the daughters, LE, JS, and RS are suitable to act as guardians in that respect. That is because they have demonstrated through their conduct over eight months that they have been able to make appropriate healthcare decisions for their mother.
We hesitated before indicating we would appoint them as decisionmakers in relation to treatment, because of the ongoing and historical conflict with the husband. Under s 43(3) of the GA Act, an appointment of a guardian 'may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit'. We consider that it is in the represented person's best interests for us to make a direction that supports the guardianship order appointing the daughters as the guardian for treatment that requires them to consult with and inform the husband in respect of any significant healthcare matters and decisions that are made. Subject to that condition, we are satisfied that it is in the represented person's best interests for her daughters to be appointed as treatment decision-makers as guardians.

Orders

For these reasons, we make the follow declaration and orders:
1.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; and
(d)is in need of a guardian,
and the Tribunal orders that the guardianship order as amended on 27 April 2018 is varied as follows:
2.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, 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)To determine what contact, if any, the represented person should have with others and the extent of that contact;
(d)To determine the services to which the represented person should have access; and
(e)To determine whether the represented person is to travel outside of Western Australia and the terms and conditions upon which travel is to take place.
3.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
4.[The daughters] are appointed joint and limited guardians for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person.
5.The guardianship orders are to be reviewed by 11 December 2018.
6.The Tribunal directs that the limited guardians for treatment decisions are to consult with and inform the represented person's husband in respect of any significant health matters or decisions to be made by the limited guardians.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
ASSOCIATE
27 JUNE 2018