TC and Z
[2007] WASAT 36
•9 FEBRUARY 2007
TC and Z [2007] WASAT 36
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 36 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2067/2006 | 24 NOVEMBER 2006 & 4 DECEMBER 2006 | |
| Coram: | MS V O'TOOLE (SESSIONAL MEMBER) | 8/02/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Public Trustee appointed plenary administrator Public Advocate appointed limited guardian | ||
| B | |||
| PDF Version |
| Parties: | TC Z |
Catchwords: | Guardianship and administration Need for orders Enduring power of attorney revoked Need for a guardian and administrator Public Advocate appointed as limited guardian Public trustee appointed as plenary administrator cognitive capacity |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 64, s 119(b), s 119(c) |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : TC and Z [2007] WASAT 36 MEMBER : MS V O'TOOLE (SESSIONAL MEMBER) HEARD : 24 NOVEMBER 2006 & 4 DECEMBER 2006 DELIVERED : 9 FEBRUARY 2007 FILE NO/S : GAA 2067 of 2006
- GAA 2065 of 2006
- Applicant
AND
Z
Proposed represented person
Catchwords:
Guardianship and administration - Need for orders - Enduring power of attorney revoked - Need for a guardian and administrator - Public Advocate appointed as limited guardian - Public trustee appointed as plenary administrator - cognitive capacity
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 64, s 119(b), s 119(c)
(Page 2)
Result:
Public Trustee appointed plenary administrator
Public Advocate appointed limited guardian
Category: B
Representation:
Counsel:
Applicant : Self-represented
Proposed represented person : Self-represented
Solicitors:
Applicant : Self-represented
Proposed represented person : Self-represented
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 An order was made appointing the Public Trustee as plenary administrator. The administrator was directed to investigate the represented person's financial situation retrospective to the time a criminal compensation payment was made in 2005. The Tribunal is to commence a review of this order by 24 November 2007.
2 An order was made appointing the Public Advocate as limited guardian to decide where and with whom the represented person is to live and to consent to treatment or health care and to determine what contact, if any, the represented person should have with others and the extent of that contact. The Tribunal is to commence a review of this order by 4 December 2007.
Background
3 A Senior Social Worker from the Emergency Department at a metropolitan hospital (the hospital) made an application to the State Administrative Tribunal for both Administration and Guardianship orders in respect of Mr Z.
4 Mr Z is a divorced man in his late 60's who has re-established a living arrangement with his ex-wife, Mrs Z, to whom he had been married for 38 years. Mrs Z has taken on the role of primary carer for Mr Z and the role of managing Mr Z's finances.
5 The application was made because of Mr Z's multiple hospital admissions, linked to Mrs Z insisting Mr Z leave her house. Mrs Z would then relent and pick him up from hospital or he would self discharge.
6 Mr Z has a range of health problems including frontal lobe syndrome, dementia, diabetes, myelitis, continence and hypertension. There is also a history of alcohol abuse which exacerbates Mr Z's health problems.
7 Mr Z received $38 000 in a criminal compensation payment in August 2005. Mrs Z was paid $16 000 of this amount at the time of the divorce. The residual money has since disappeared.
8 Reports were provided to the Tribunal by:
• Senior Social Worker at hospital;
(Page 4)
- • Office of the Public Advocate;
• Doctor from the Emergency Department at the hospital;
• Mr Z's general practitioner; and
• ACAT assessment.
9 These reports confirm frontal lobe syndrome and dementia. There is an inconsistency in the reports regarding Mr Z's capacity to make health decisions and his capacity to make decisions as to where he wants to live. There is no inconsistency as to Mr Z's incapacity to manage his money. Mr Z's general practitioner reported, in November 2006, that Mr Z was capable of executing an enduring power of attorney which was inconsistent with the assessment of the doctor from the hospital.
The November 2006 hearing
10 A hearing on 24 November 2006 was attended by Mr Z and his ex-wife, two Senior Social Workers from the hospital, a friend of the proposed represented person, and a representative of the Office of the Public Advocate.
11 The Tribunal was informed that Mr Z had not managed his funds for some time. Mr Z himself did not understand what had occurred with his money, nor how much he had received from his criminal compensation payment.
12 There was an incident where Mr Z lost $2 800 in a taxi. He had also lost or misplaced his bank cards.
13 Mr Z had very recently executed a new enduring power of attorney, with the donee being Mrs Z. This occurred due to problems with the effectiveness of an earlier power of attorney. There was some medical evidence that Mr Z would not have had the capacity to execute an enduring power of attorney at this time. He stated that he did not understand this document.
14 Concerns were raised about the erosion and/or loss of Mr Z's money. At the end of June 2006 Mr Z had $9 200 in his account. In August 2006 there was approximately $5 500, and at the time of the hearing there was $400 – the latest pension payment. How, when and by whom this money was accessed and used was not clear, and an investigation as to where the funds have gone was recommended. These funds were Mr Z's only asset.
(Page 5)
15 Mr Z was very clear that he did wish to continue to reside with his ex-wife.
16 Mrs Z was inconsistent in her statements about her wish to have Mr Z reside with her. Evidence given to the Tribunal was that the frequent hospital admissions were related to her vacillation on his residing with her. The Public Advocate associated some of the vacillation with carer stress.
17 The Public Advocate questioned the effectiveness of a guardian, when Mr Z discharges himself from hospital and returns home against advice. Any proposal for alternative accommodation would not be in a locked residential facility at this time.
18 Mrs Z was quite reluctant to allow Mr Z to remain with her unless she could continue to manage his funds. Mrs Z did not understand the implications and working of an administration order. Considerable discussion occurred in the Tribunal to assist her with her understanding.
19 Finally Mrs Z agreed to see how the administration order affected her over a two month period, and to allow Mr Z to continue to reside with her during this period.
20 In this period, a substitute decision-maker regarding where and with whom Mr Z is to live should not be needed.
21 Medical reports and evidence provided by the Office of the Public Advocate were consistent, stating that Mr Z is capable of making decisions regarding his health. Section 119(b) and (c) of the Guardianship and Administration Act 1990 (WA) would be relevant and would protect him.
22 Substitute decision-making regarding access to services whilst Mr Z resides with his ex-wife should not be needed.
Findings and reasons: administration application
Capacity
23 With regard to Mr Z's capacity to make reasoned decisions in relation to financial issues, the Tribunal considered the evidence provided in the application, the written reports submitted and oral evidence. The Tribunal was satisfied that Mr Z is a person for whom administration orders could be made.
(Page 6)
- Need
24 In making a determination about the need for an administration order, the Tribunal looked at the issue of the loss or uncertain whereabouts of Mr Z's financial assets, and was satisfied that an investigation was needed into this. An administrator was also needed to manage the day to day management of Mr Z's estate whilst this investigation is being carried out.
Views and wishes of the proposed represented person
25 Although Mr Z had executed an enduring power of attorney with Mrs Z as the donee, it is clear that he did not have the capacity to understand what he was doing. This was however an indication of his wishes that his ex-wife manage his estate. It was not clear however to what extent this was done to ensure he could remain residing with his ex-wife.
Decision on appointment of an administrator
26 From the information provided in the written reports and the material provided by parties at the hearing, the Tribunal was satisfied that Mr Z was unable to make reasoned decisions in respect of any of his estate and was, therefore, in need of an administrator to take on the role of decision-maker in this regard.
27 There was also a need for an investigation to occur as to how the loss of all Mr Z's financial assets had occurred since his payment for criminal compensation in 2005.
28 In making a decision as to who should be appointed administrator, the Tribunal considered all the evidence provided at the hearing, including Mrs Z's wish to remain in control of Mr Z's finances. However the Tribunal considered that Mrs Z would not be in a position, nor would she have the capacity, to carry out an investigation.
29 In considering the wishes of Mr Z to continue to reside at home with his ex-wife, the Tribunal recognised that the appointment of the Public Trustee as administrator could jeopardise this living arrangement.
30 Extensive explanations were provided to Mrs Z as to how the administration order could work for her and the limited duration of the order, to minimise the likelihood of breakdown of this living arrangement.
31 The administration order was for a period of 12 months, being sufficient time for the investigation to be complete and to enable a review
(Page 7)
- as to whether this was the most suitable and least restrictive arrangement thereafter.
32 As the existing power of attorney would conflict with the operation of the administration order, the enduring power of attorney was revoked.
Interim findings and reasons: guardianship application
Capacity
33 Reports and evidence provided to the Tribunal regarding Mr Z's cognitive capacity stated there were clear deficits in Mr Z's cognition and conflicting assessments about his capacity to make decisions regarding his living situation and health. The fact that Mr Z was compliant with Mrs Z moving him to hospital, his dementia and disorientation in time and place, convinced the Tribunal that Mr Z was a person for whom an order could be made.
Need
34 Since Mrs Z did agree that she would allow Mr Z to remain at home for a limited period, the Tribunal reserved its decision regarding a guardianship order until 1 February 2007. In this intervening period, it was considered that there should be no need for a guardianship order to be made if Mr Z remained living with Mrs Z, and if there was a cessation of inappropriate hospital admissions.
Emergency hearing in December 2006 to address guardianship application
35 An emergency hearing was requested by the Public Advocate, following new admissions to hospital by Mr Z since the previous hearing on 24 November 2006. This hearing took place on 4 December 2006, and the original date for the resumed hearing on 1 February 2007 was vacated.
36 Parties attending were the applicant the Senior Social Worker from the hospital, the proposed represented person, Mrs Z, the Office of the Public Advocate (two representatives) and a friend/neighbour.
37 The Office of the Public Advocate explained that the agreed arrangement had not endured in a satisfactory manner and the arrangement was not in Mr Z's interest.
38 Mr Z was physically threatened by his ex-wife, as reported by the neighbour, immediately following the previous hearing.
(Page 8)
39 Mrs Z declared she did not want him to remain at home any longer and sent him to the hospital on 27 November 2006, where he was later discharged. He was again admitted on 29 November 2006 and discharged himself on 30 November 2006.
40 Mr Z was confused, distressed and crying during these episodes, and vulnerable.
41 There was a suggestion that alcohol was a trigger for these episodes, but this could not be confirmed.
42 The workability of a guardianship order was discussed, as any organised accommodation would not be locked, and Mr Z would be likely to leave.
43 The Public Advocate stated that there was respite available in a local hostel for Mr Z from 6 December. This would enable time for consideration of long term options for Mr Z and what service supports may be necessary or beneficial.
44 There was discussion as to the need for a substitute decision-maker regarding health. Medical assessment was inconsistent. Whilst at home Mrs Z assists, however if Mr Z was living elsewhere, a substitute decision-maker would be necessary.
Findings and reasons
Capacity
45 The Tribunal considered Mr Z's capacity to make reasoned decisions regarding his living situation, his health and access to services. The pattern of recent hospital admissions, and his distress and vulnerability in managing these events, convinced the Tribunal that Mr Z is a person for whom an order could be made.
Need
46 In making a determination about the need for a guardianship order, the Tribunal considered the continuing hospital admissions with their consequent distress, and the vulnerability of Mr Z. The Tribunal was satisfied that his current living situation was not a supportive and safe environment for him. This environment had impacted negatively on his health and well being. The Tribunal was convinced that Mr Z is in need of oversight, care and control.
(Page 9)
Decision
47 From the information provided in the written reports and the material provided by parties at both hearings, the Tribunal was satisfied that Mr Z was unable to make reasoned decisions and judgments in terms of his own person and was in need of a guardian to take on the role of substitute decision-maker.
48 In making the decision as to who should be the appointed guardian, the Tribunal considered that there was no other option than the Public Advocate.
49 In considering the duration of the order, the Tribunal aligned the time frame with the duration of the administration order – one year. The reason for this time frame was that it would provide an opportunity to review whether the changed living circumstances had created more stability, and whether a less restrictive option would then be available.
Orders
50 On 24 November 2006 the Tribunal issued an administration order as follows:
1. The Public Trustee of 565 Hay Street, Perth, Western Australia be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2. The enduring power of attorney dated 25 July 2006 by which Mr Z appointed Mrs Z to be his attorney, be revoked.
3. The Public Trustee investigate what has occurred regarding the represented person's estate from the time he received a substantial damages payment in 2005 until the present where there appears to be nothing left in the estate.
4. This order is to be reviewed by 24 November 2007.
51 On the question of guardianship determined on 4 December 2006, the Tribunal orders as follows:
1. The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited
- guardian of the represented person with the following functions:
- (a) To decide where the represented person is to live, whether permanently or temporarily;
(b) To decide with whom the represented person is to live;
(c) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person;
(d) To determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e) To determine the services to which the represented person should have access.
- 2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3. This order is to be reviewed by 4 December 2007.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS V O'TOOLE, SESSIONAL MEMBER
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