TAF and VAS
[2008] WASAT 139
•20 JUNE 2008
TAF and VAS [2008] WASAT 139
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 139 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:789/2008 | 14 MAY 2008 | |
| Coram: | MS S GILLETT (SENIOR SESSIONAL MEMBER) | 20/06/08 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for the appointment of a guardian dismissed | ||
| B | |||
| PDF Version |
| Parties: | TAF VAS |
Catchwords: | Guardianship and Administration Act 1990 (WA) Need for guardian Contact |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43(1) |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : TAF and VAS [2008] WASAT 139 MEMBER : MS S GILLETT (SENIOR SESSIONAL MEMBER) HEARD : 14 MAY 2008 DELIVERED : 20 JUNE 2008 FILE NO/S : GAA 789 of 2008 BETWEEN : TAF
- Applicant
AND
VAS
Represented Person
Catchwords:
Guardianship and Administration Act 1990 (WA) - Need for guardian - Contact
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43(1)
Result:
Application for the appointment of a guardian dismissed
(Page 2)
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
(Page 3)
Summary of Tribunal's decision
1 The Tribunal considered an application by a daughter for the appointment of a guardian for her 78-year-old mother who suffered with Alzheimer's disease and resided in a secure wing of an aged care facility. The daughter sought the appointment of a guardian specifically to provide the authority to limit contact between her mother and a volunteer visitor to the aged care facility. The daughter believed that her mother was at risk of financial exploitation by this volunteer visitor who was considered by staff at the facility to have been behaving inappropriately.
2 The proposed represented person executed an enduring power of attorney in 2004 by which she appointed her daughter, TAF, and her son-in-law, TAF's husband, as her attorneys. TAF proposed that she be appointed as guardian for her mother.
3 It was not in dispute, and the Tribunal found on the evidence, that the proposed represented person was a person in respect of whom guardianship orders could be made. Nevertheless, the Tribunal was satisfied that her needs could be met by other less restrictive means. In particular, the authority provided in the enduring power of attorney enabled the protection of the proposed represented person's estate.
4 Accordingly, the Tribunal found the proposed represented person not in need of a guardian and dismissed the application.
Background
5 These proceedings concern an application lodged by TAF on 4 April 2008 for the appointment of a guardian for her mother (the proposed represented person or VAS), pursuant to the provisions of the Guardianship and Administration Act 1990 (WA) (the GA Act).
6 TAF asks the Tribunal to appoint a guardian for the proposed represented person who has Alzheimer's disease and suffers with short and long term memory loss, confusion, and language breakdown. VAS has resided in the secure wing of an aged care facility in a small country town for the past four years. These proceedings are brought by TAF, with the support of family members, due to concerns that VAS is at risk of financial exploitation from a volunteer visitor to the aged care facility who has "targeted her mother" and who is behaving inappropriately.
(Page 4)
7 The application also referred to the need for a guardian to make medical treatment decisions but in fact the existing informal arrangements are sufficient to deal with medical treatment and healthcare decisions. The aged care facility has contact details for both TAF and PB, VAS's two daughters, and there is no conflict or any difficulties in respect to healthcare decisions.
8 The hearing was held on 14 May 2008. The proposed represented person was not able to attend; her treating general practitioner Dr HW advised that attending would be detrimental and not in her best interest due to her "lack of understanding and disorientation". The hearing was attended by the applicant TAF, who is VAS's daughter, the applicant's son TL, VAS's sister LL, VAS's brother-in-law WLL, and VAS's older daughter PB.
9 TAF proposed in her application that she be appointed as limited guardian for VAS.
Relevant legislation
10 Section 43(1) of the GA Act provides that the Tribunal may appoint a guardian for a person if it is satisfied that the person concerned:
"(a) has attained the age of 18 years;
(b) is -
(i) incapable of looking after her own health and safety;
(ii) unable to make reasonable judgments in respect of matters relating to her person; or
(iii) in need of oversight, care or control in the interests of her own health and safety or for the protection of others;
and
(c) is in need of a guardian,
..."
(Page 5)
Principles to be observed
11 The principles to be observed by the Tribunal in dealing with proceedings commenced under the GA Act are set out in s 4 of that Act.
"(1) In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in subsection (2).
(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 her own health and safety;
(ii) making reasonable judgments in respect of matters relating to her person;
(iii) managing her own affairs; and
(iv) making reasonable judgments in respect of matters relating to her 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."
The proposed represented person's capacity (evidence and submissions)
12 The Tribunal has a completed Doctor's Guide from Dr HW, VAS's general practitioner for the past four years, dated 7 April 2008. In that report, Dr HW states that VAS suffers with Alzheimer's disease and that her impairment due to this condition is "progressively getting worse". Further, Dr HW sets out that VAS is incapable of making reasonable decisions about her personal healthcare, her living situation and her financial affairs, and that she does not have the capacity now to execute a valid enduring power of attorney.
13 The Tribunal was also provided with a copy of the Aged Care Client Record completed by the Aged Care Assessment Team in Mandurah on 11 June 2004. At the time of this assessment, VAS was still residing at home with her husband; she had been diagnosed with Alzheimer's disease and was exhibiting short term memory problems, depressive symptoms, confusion and disorientation to time and place on a regular basis. This report set out a score of 19/30 in a Mini Mental State Examination and approved the proposed represented person for low level residential care and low level respite care.
14 SW, the Manager of the Aged Care Facility where VAS resides, completed a Primary Carer Guide on 4 April 2008 in which she states that the proposed represented person "shows obvious confusion, short term memory loss. Will follow only simple instructions - one at a time" and that she "lives in a secure wing due to wandering problems".
15 No issue is taken by any party and the Tribunal is satisfied that VAS is incapable of looking after her own health and safety, unable to make reasonable judgements in respect to matters relating to her person and in need of oversight, care and control in the interests of her own health and safety.
(Page 7)
The need for a guardian (evidence and submissions)
16 In her written application to the Tribunal, TAF states that she was notified by staff at the aged care facility where her mother resides that a volunteer visitor to the dementia wing was overheard questioning her mother about her power of attorney and her jewellery, and that she had sought unsuccessfully to limit the contact between her mother and the volunteer visitor.
17 In her oral evidence, TAF states that she was contacted by SW and advised of her concerns about the volunteer visitor. TAF states that she asked SW to curtail any further contact between the volunteer visitor and her mother, but was told that, without a guardianship order, she did not have the authority to restrict the contact between the volunteer visitor and her mother. TAF advises that the volunteer visitor is not a person known to herself, her family or to her mother prior to her moving into the aged care facility.
18 TAF states that she wishes to have the authority to protect her mother by limiting any contact with both the volunteer visitor who has been identified and anyone else who may wish to exploit her mother's vulnerability. TAF states that there are no valuables in her mother's possession or at the aged care facility, as she has removed VAS's rings for safekeeping. TAF advises, however, that she remains concerned that her mother may be exploited financially.
19 TAF states that whilst her mother has appointed her and her husband (VAS's son-in-law) as her joint attorneys under an enduring power of attorney executed in 2004 and she has provided a copy of this document to the bank, the bank staff have advised that VAS can "still sign a cheque and take out as much as she wants". TAF advises that her mother does not have a chequebook at present; however, she is concerned that a chequebook could be readily provided by the bank simply by someone getting her mother to sign the necessary documentation.
20 TAF advises that she was further alarmed when the volunteer visitor recently telephoned her and advised that she had informed the aged care facility that she would be happy to be the emergency contact for VAS.
21 VAS's older daughter PB, and her sister LL, indicated at the hearing that they shared TAF's concern that steps needed to be taken to safeguard her interests and her estate.
(Page 8)
The proposed represented person's wishes
22 In the absence of the proposed represented person attending the hearing or having the capacity to express her wishes at the present time, the Tribunal noted VAS's prior actions in appointing her daughter, TAF, as one of the donees of her enduring power of attorney. This action demonstrates the trust that VAS has placed in TAF and her wish that TAF be responsible (together with her husband, VAS's son-in-law) for managing her financial affairs.
The need for a guardian (the decision of the Tribunal)
23 The basis of TAF's application seeking the appointment of a guardian for her mother is primarily to safeguard and protect VAS's estate through the provision of an authority to restrict the contact between VAS and a volunteer visitor to the aged care facility. Given that there is a valid enduring power of attorney in place, it is the Tribunal's view that adequate steps can be taken by TAF and her husband, in their function as VAS's attorneys, to protect her estate.
24 Given that VAS resides in the secure wing of an aged care facility, the environment is relatively controlled in respect to contact with persons who are not staff of the facility. Other than the stated concerns in respect to the safeguarding of VAS's estate, there is no evidence before the Tribunal that there is any distress caused to VAS through contact with the volunteer visitor. On the balance of the evidence before me, the Tribunal is not satisfied that VAS is in need of a guardian within the meaning of the GA Act.
Conclusion
25 For the reasons set out above, I find VAS is incapable of looking after her own health and safety, unable to make reasonable judgements in respect to matters relating to her person, and in need of oversight, care and control in the interests of her own health and safety within the meaning of s 43(1)(b) of the GA Act. However, I am not satisfied that she is in need of a guardian with formal legal authority to make decisions and act on her behalf.
Orders
1. The application for the appointment of a guardian is dismissed.
(Page 9)
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS S GILLETT, SENIOR SESSIONAL MEMBER
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