VF and MLW
[2015] WASAT 97
•27 AUGUST 2015
VF and MLW [2015] WASAT 97
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 97 | |
| 02/09/2015 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2071/2015 | 27 AUGUST 2015 | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) MR P DE VILLIERS (MEMBER) MS H LESLIE (MEMBER) | 27/08/15 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Represented person's daughter appointed limited guardian for represented person in relation to accommodation, treatment and services Public Advocate appointed limited guardian for represented person in relation to contact with applicant | ||
| B | |||
| PDF Version |
| Parties: | VF MLW |
Catchwords: | Guardianship Review of limited guardianship order by Full Tribunal Represented person's daughter appointed as his limited guardian to make decisions in relation to accommodation, treatment, services and contact Applicant and represented person had close relationship before represented person went into care Limited guardian did not allow any contact between represented person and applicant since her most recent appointment Whether represented person is acting in best interests of represented person in relation to contact with applicant Best interests requires objective determination Whether limited guardian lacks objectivity in relation to applicant |
Legislation: | Guardianship and Administration Act 1990 (WA), s 17A, s 43(1), s 44(1), s 44(2), s 44(5) |
Case References: | Nil |
Summary | The applicant, Ms VF, had a close relationship with the represented person, a 74yearold gentleman who suffers from advanced dementia, for three years before he went into care. The represented person's daughter was appointed as his limited guardian to make decisions in relation to accommodation, treatment, services and contact. The limited guardian did not allow any contact between her father and the applicant since her most recent appointment. The applicant sought review of the limited guardianship order by a Full Tribunal and, in particular, sought the appointment of the Public Advocate as limited guardian in relation to contact.,The Full Tribunal determined that, in the best interests of the represented person, there should be an independent decisionmaker appointed to make objective decisions about whether there should be contact between the represented person and the applicant, and if so, the extent of that contact and how it is to be regulated. The Full Tribunal determined that the represented person's daughter was not acting in the best interests of the represented person in relation to decisionmaking as to contact with the applicant and was not suitable to act as limited guardian in relation to contact with the applicant, because she lacks objectivity in relation to the applicant.,The Full Tribunal emphasised that 'best interests' decisionmaking involves and requires an objective determination to be made.,The Full Tribunal appointed the Public Advocate as limited guardian to make decisions in relation to whether there should be contact between the represented person and the applicant and the extent and regulation of any such contact and reappointed the represented person's daughter as limited guardian to make decisions in relation to accommodation, treatment and services. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : VF and MLW [2015] WASAT 97 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT)
- MR P DE VILLIERS (MEMBER)
MS H LESLIE (MEMBER)
- Applicant
AND
MLW
Represented Person
Catchwords:
Guardianship Review of limited guardianship order by Full Tribunal Represented person's daughter appointed as his limited guardian to make decisions in relation to accommodation, treatment, services and contact Applicant and represented person had close relationship before represented person went into care Limited guardian did not allow any contact between represented person and applicant since her most recent appointment Whether represented person is acting in best interests of represented person in relation to contact with applicant Best interests requires objective determination Whether limited guardian lacks objectivity in relation to applicant
Legislation:
Guardianship and Administration Act 1990 (WA), s 17A, s 43(1), s 44(1), s 44(2), s 44(5)
Result:
Represented person's daughter appointed limited guardian for represented person in relation to accommodation, treatment and services
Public Advocate appointed limited guardian for represented person in relation to contact with applicant
Summary of Tribunal's decision:
The applicant, Ms VF, had a close relationship with the represented person, a 74yearold gentleman who suffers from advanced dementia, for three years before he went into care. The represented person's daughter was appointed as his limited guardian to make decisions in relation to accommodation, treatment, services and contact. The limited guardian did not allow any contact between her father and the applicant since her most recent appointment. The applicant sought review of the limited guardianship order by a Full Tribunal and, in particular, sought the appointment of the Public Advocate as limited guardian in relation to contact.
The Full Tribunal determined that, in the best interests of the represented person, there should be an independent decisionmaker appointed to make objective decisions about whether there should be contact between the represented person and the applicant, and if so, the extent of that contact and how it is to be regulated. The Full Tribunal determined that the represented person's daughter was not acting in the best interests of the represented person in relation to decisionmaking as to contact with the applicant and was not suitable to act as limited guardian in relation to contact with the applicant, because she lacks objectivity in relation to the applicant.
The Full Tribunal emphasised that 'best interests' decisionmaking involves and requires an objective determination to be made.
The Full Tribunal appointed the Public Advocate as limited guardian to make decisions in relation to whether there should be contact between the represented person and the applicant and the extent and regulation of any such contact and reappointed the represented person's daughter as limited guardian to make decisions in relation to accommodation, treatment and services.
Category: B
Representation:
Counsel:
Applicant : In Person
Represented Person : N/A
Solicitors:
Applicant : N/A
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Application for review by Full Tribunal
1 The following are the Tribunal's reasons for decision in relation to proceeding GAA 2071 of 2015, involving an application by Ms VF (applicant) for review by a Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) concerning a limited guardianship order made in relation to Mr MLW (represented person) on 13 May 2015.
2 The represented person is a 74yearold gentleman who suffers from advanced dementia. Unfortunately, it appears that his dementia is progressing quite rapidly. In May 2014, a medical report indicates that he had a mini mental score of 15/30. By November 2014, that score had declined to 10/30 and although there was some improvement in a further assessment in February 2015, the represented person developed behavioural problems which caused hospitalisation at that time and which has caused him to have to move twice since then from a nursing home. The represented person's daughter, Ms JW (represented person's daughter), gave evidence that her father has recently 'stopped communicating' and is unable to put a whole sentence together. She also said that he 'wanders'. The represented person currently resides at Selby Lodge where he is being assessed, in particular to determine what triggers have caused behavioural problems as well as for the purpose of seeking to improve his mental and physical health.
3 The hearing before the Full Tribunal on 27 August 2015 is the fourth guardianship hearing in relation to the represented person in less than a year. On 7 October 2014, the Tribunal appointed the represented person's daughter as his limited guardian to make decisions in relation to accommodation, treatment, services and contact, and appointed the Public Trustee as his plenary administrator. Those orders were made reviewable within five years.
4 However the applicant sought review of that order under s 17A of the GA Act and a review was conducted by a Full Tribunal on 3 February 2015. The Full Tribunal affirmed the order appointing the represented person's daughter as his limited guardian, but removed authority to make decisions in relation to contact. The Full Tribunal made the order reviewable within three months.
5 In accordance with that review requirement, on 13 May 2015, Member Dr Bertus De Villiers conducted a statutory review of the guardianship order under s 84 of the GA Act. Dr De Villiers confirmed the order appointing the represented person's daughter as his limited guardian and added the authority to make contact decisions to the authorities specified by the Full Tribunal. The order was made reviewable within five years.
6 There was also discussion at the hearing by Dr De Villiers as to contact that might be allowed by the represented person's daughter as limited guardian between her father and the applicant. The member observed at page 22 of the transcript that it was not his role to make a decision about how the limited guardian would exercise her power in relation to regulating contact with other people and, in particular, in relation to the applicant. However, the member observed that 'there's clearly, according to the evidence before me, a close relationship between your father and [the applicant]'.
7 The member acknowledged incidents to which we will refer shortly, involving the applicant leaving the nursing home facility with the represented person on two occasions, without the approval of the represented person's daughter as guardian and without the knowledge of the facility. The member acknowledged that he understood the significant concerns that those incidents gave rise to. However, the member went on to say the following to the represented person's daughter:
What I do encourage you is once the nursing facility have proper arrangements in place so that you as guardian can be satisfied that a visitor would not abscond with your father, that you do consider allowing [the applicant] to visit your father. That relationship that they have had, regardless of how one classifies it, was a close relationship and for them to meet onsite in a secure area, I think, is in his interests and not detrimental to him. (T: 13/5/15 22.522.7)
8 Finally, the member observed that:
On the other hand, if there's a risk of him being removed or if there's a risk of him being upset by the visitation, then obviously you have a discretion to stop that, but all I'm saying is don't close your mind to visitation rights because that may cause a review of my decision and then I might, in fact, appoint the Office of the Public Advocate if I'm of the view that there was just a blanket refusal[.] (T: 13/5/15 22.822.9)
9 In the current review application, the applicant describes her relationship with the represented person as having initially been a carer, but subsequently becoming a de facto domestic partner. She says that the de facto domestic relationship lasted for about two and a half years before the represented person went into care in late 2014.
10 Other than the applicant's assertion, there is in fact no evidence that there was a de facto relationship between them. Indeed, the objective evidence indicates that they maintained separate units. However, the evidence does establish, as Dr De Villiers observed in his reasons, that there was a close and caring relationship between the represented person and the applicant. That has been confirmed in, for example, a submission from Ms CA, a nurse who had close contact with both of them, who described them as 'friends' and their relationship as 'significant, supportive, caring'. The Full Tribunal also heard evidence from Ms AR, a social worker who had contact with both the applicant and the represented person when he lived in the community, which was essentially to the same effect.
Is the represented person a person for whom a guardianship order can be made?
11 The first question the Tribunal has to consider is whether, in fact, any guardianship order can be made for the represented person. Every person is presumed to be capable of making reasonable decisions for themselves in relation to matters to deal with their personal circumstances unless the Tribunal is satisfied on the basis of evidence that the contrary is the case.
12 In particular, the Tribunal cannot make any guardianship order for a person unless it finds under s 43 of the GA Act that the person is incapable of looking after his or her own health and safety, or unable to make reasonable judgments in respect of matters relating to his or her person, or in need of oversight, care or control in the interests of his or her own health and safety or for the protection of others, and is in need of a guardian.
13 In the circumstances of this case, we are certainly satisfied that the presumption of capacity, as it is called, is displaced, unfortunately by overwhelming medical evidence. The represented person is in fact incapable of looking after his own health and safety, is unable to make reasonable judgments in respect of matters relating to his person, and is in need of oversight, care or control in the interests of his health and safety and for the protection of others, in consequence of his progressive and advanced Alzheimer's type dementia.
14 The medical evidence in this case is provided in two medical reports. The first is by Dr MT who, in the report dated 9 April 2015, confirms that the represented person has a diagnosis of mixed dementia, which includes Alzheimer's disease and also vascular dementia, and expresses the opinion that he is unfortunately incapable of making reasonable decisions in relation to his personal health care and living situation as well as financial affairs. By way of comment, Dr MT notes that the represented person has no real awareness of his care needs and is no longer capable of continuing to live at home independently. Furthermore, Dr GW provides a report dated 27 April 2015 confirming the same diagnosis and expressing the same opinion.
Is there a need for the appointment of a guardian?
15 The next question the Tribunal has to consider is whether there is a need for the appointment of a guardian.
16 We are certainly satisfied that there is a need for the appointment of a guardian in relation to each of the authorities that were conferred in the order under review.
17 There is a need in relation to accommodation as the represented person is in, at the moment, a temporary form of accommodation at Selby Lodge.
18 There is a need for decisionmaking in relation to treatment decisions because, in addition to Alzheimer's disease and other dementia, he suffers from a number of health issues.
19 There is a need for the appointment of a guardian to determine what contact, if any, the represented person should have with the applicant given that there is evidence, which is not questioned, of two incidents in April and May 2015, in which the represented person left the nursing home facility with the applicant without the knowledge and approval of the represented person's daughter as the guardian and without the knowledge of the facility. That led to not only considerable distress on the part of the represented person's family, but also on one occasion, to the police having to be called and ultimately the represented person being found in the building where he had his unit, on one occasion near his former unit and on the other occasion in the applicant's unit. There are differences between the applicant, on the one hand, and the represented person's daughter and her brother, Mr TW, on the other hand, about the extent to which the applicant was a moving party in causing the represented person to leave the facility. It is unnecessary for us to make a finding in that regard. It is sufficient to note that he left the facility to the applicant's knowledge and without the knowledge of the guardian or the facility. It is therefore necessary for there to be a guardian to make decisions about contact with the applicant.
20 In making that decision we take into account and find that there certainly was a close relationship between the applicant and the represented person and that it is appropriate for there to be objective determination in the represented person's best interests as to whether there should be contact between them. It is also necessary for there to be objective determination, if there is to be contact, as to how that should be regulated in the best interests of the represented person, which may require it to be closely supervised.
21 Finally we consider that there is a need for the appointment of a guardian to determine the services to which the represented person should have access, given that although many of the services he has access to now are in the facility where he lives, there may be a need for external services to be provided now or in the future.
Who should be appointed as guardian?
22 The third question that we need to decide is who should be appointed as guardian. The applicant, who has sought review of the guardianship order proposes that the Public Advocate should be appointed as limited guardian to make decisions in relation to contact. That is because she considers that she has not been 'treated fairly' by the represented person's daughter as the guardian, in relation to contact. Ms VF does not question, nor is there any basis on the evidence to question, the decisionmaking of the represented person's daughter in relation to any other aspect of the guardianship.
23 The represented person's daughter puts herself forward for continuing appointment as his guardian. Her appointment is supported by her brother and her mother, the represented person's former wife. They each oppose the appointment of the Public Advocate as limited guardian to make decisions in relation to contact, as these decisions should be made within the family.
24 Section 44 of the GA Act concerns who may be appointed as guardian. Section 44(1) states that:
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.
25 Section 44(2) gives further considerations that the Tribunal is required to have regard to in relation to whether a person is otherwise suitable to act. Those considerations are:
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.
26 Section 44(5) is relevant. It states as follows:
Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
27 We are satisfied that the represented person's daughter is a person who is not only willing to act but suitable to act as limited guardian in relation to each of the powers conferred by Dr De Villiers with the exception of contact with the applicant. That being the case, in consequence of s 44(5) of the GA Act, the Tribunal cannot appoint the Public Advocate as limited guardian in relation to any of those authorities other than contact. We are satisfied that the represented person's daughter's appointment would preserve existing relationships within the family, namely, the relationships between her father, herself, her brother and her mother. We are also satisfied that there is a high compatibility of Ms JW with her father. On the evidence we have, she has taken an active interest in his welfare for many years. In relation to the wishes of the represented person, we have no direct evidence. However, we have evidence that the represented person's daughter together with the applicant took the represented person to medical appointments. Finally, in relation to whether she would be able to perform the functions to be vested in her, the evidence indicates to us that she has done so in her father's best interests now for almost a year.
28 We now turn specifically to the question of decisionmaking in relation to contact. The represented person's daughter gave evidence that, following the first Full Tribunal hearing on 3 February 2015, she allowed contact between her father and the applicant within the nursing home facility. However, the two incidents in April and May 2015 caused considerable distress as well as shock to the family. Ms JW said that she 'can't be 100 percent sure' that she will not allow contact between her father and the applicant if she were appointed. However, in light of the incidents in April and May 2015, she said that she is 'too nervous about it' and she has in fact not allowed any contact between the applicant and her father since her most recent appointment three and a half months ago. (The applicant had contact with the represented person most recently on 30 May 2015 when he absconded from a nursing home and walked to the applicant's home where he was found by the represented person's daughter).
29 The concern that the represented person's daughter expressed and was echoed by her brother is that if there were contact now between the represented person and the applicant, the represented person is likely to see the applicant, as the represented person's daughter described it, as 'a way out of where he is' and that seeing the applicant is likely to unsettle him at a time when his mental health requires, and the nature of his Alzheimer's requires, routine.
30 The Tribunal certainly understands those concerns. The Tribunal also understands the concerns expressed by the represented person's daughter and her brother that they wish to be given the opportunity to spend time with their father without disruption.
31 It appears to the Tribunal from the way in which the applicant conducted herself at the hearing, as well as evidence given by Ms AR that squarely informed the Tribunal that the applicant has had mental health issues, that the applicant does have mental health issues and that that in itself has caused disruption and distress to the represented person's family. In addition to that there is evidence that we have referred to of the two incidents, where the applicant was directly or indirectly involved in the represented person leaving the facility in circumstances where the family was not informed and understandably felt devastated and distressed by not being informed and ultimately in one case having to call the police.
32 Nevertheless, the evidence before us, as before the single member, indicates that there was a close relationship between the represented person and the applicant.
33 The primary and overriding concern of the Tribunal is and must be the best interests of the person in relation to whom an application is made, namely the represented person. It is not for the Tribunal, as Dr De Villiers correctly observed, to determine whether there should in fact be contact. The Tribunal is not the guardian. However, in the best interests of the represented person, the Tribunal considers that there should be an independent decisionmaker to make objective decisions about whether there should be contact between the represented person and the applicant, and if so, the extent of that contact and how it is to be regulated.
34 In the circumstances, we consider that in relation to decisionmaking about contact, although the represented person's daughter has put herself forward and is willing to act, she is not acting in the best interests of her father in relation to decisionmaking as to contact with the applicant and is not suitable to act as limited guardian in relation to contact with the applicant, because for perfectly understandable reasons, she lacks objectivity in relation to the applicant.
35 We say we certainly understand how that has come about. It is a perfectly understandable subjective reaction to the applicant's conduct and the way she has behaved. However, in the represented person's best interests, an objective decision needs to be made about contact. 'Best interests' decisionmaking involves and requires an objective determination to be made.
36 For those reasons we consider that the Public Advocate should be appointed as limited guardian to make only decisions relating to whether there should be contact with the applicant and the extent and regulation of any such contact.
37 We wish to make it clear to the Public Advocate and her officers and to the parties that when an objective decision is made, it may be that no contact should be allowed. And even if contact is allowed, the objective decision may be that it is to be significantly regulated. The evidence before us indicates not only that there were two incidents in which the represented person left the facility with the applicant, but that even without her, more recently, he has left another facility pretending to be a family member. And although his Alzheimer's disease is advanced, the evidence seems to indicate that he can be clever in that respect and seek to leave facilities. It would certainly not be in his best interests and indeed it would be manifestly contrary to his best interests to leave a secure facility given that he has wandered and given the fact that it appears on one occasion he climbed levels to get to his former home.
Conclusion
38 For these reasons, we will revoke the current guardianship order and we will make a fresh guardianship order appointing Ms JW as limited guardian in relation to accommodation, treatment and services and we will make a limited guardianship order appointing the Public Advocate as limited guardian, only in relation to determining whether there should be any contact, and if so, how that should be regulated between the represented person and the applicant.
39 Both of these orders, in our view, should be made reviewable within five years of the date of the order made by Dr De Villiers. That is because the condition unfortunately is progressing and it will not improve and there is no need for the matter to come back for a review before that time.
Declaration and orders
40 For these reasons, the Tribunal makes the following declaration and orders:
The Tribunal declares that the represented person;
(a) is incapable of looking after his own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to his person;
(c) is in need of oversight, care or control in the interests of his own health and safety; and
(d) is in need of a guardian
and the Tribunal orders that:
1. The application for review is allowed in part.
2. The guardianship order made on 13 May 2015 is revoked and the following guardianship orders are substituted for it.
3. [Ms JW] of [address] is 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 make treatment decisions for the represented person; and
(d) To determine the services to which the represented person should have access.
4. The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a) To determine what contact, if any, the represented person should have with [Ms VF] and the extent and regulation of any such contact.
5. 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.
6. This order is to be reviewed by 13 May 2020.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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