| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : VM [2013] WASAT 154 MEMBER : MR M ALLEN (SENIOR MEMBER) HEARD : 24 JANUARY AND 2 MAY 2013 DELIVERED : 4 JULY 2013 PUBLISHED : 12 SEPTEMBER 2013 FILE NO/S : GAA 3844 of 2012 GAA 4610 of 2012
GAA 1623 of 2013
GAA 1624 of 2013
BETWEEN : VM Catchwords: Guardianship and administration - Represented person with early onset dementia living in a nursing home - Review of guardianship order - Applications for administration order and orders in respect of an enduring power of attorney - Consideration of whether appointed guardian (for all matters except contact with other persons) and enduring attorney had acted in the best interests of the represented person - Findings that guardian and enduring attorney had so acted, but that there was a need to make directions requiring the guardian and enduring attorney to provide information to the adult children of the represented person and to consult them in relation to significant decisions to be made regarding the represented person's financial and personal affairs - Finding that the Public Advocate should be reappointed as a limited guardian to make decisions
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regarding the represented person's contact with others, including to inquire into the circumstances of a sexual relationship in which the represented person was involved and whether the represented person is capable of consenting to such a relationship Legislation: Criminal Code Act 1913 (WA), Chapter XXXI
Guardianship and Administration Act 1990 (WA), s 43, s 44(5), s 51, s 51(2), s 64, s 84, s 107, s 109 Result: Application for administration order dismissed
Directions made regarding enduring attorney's management of the represented person's financial affairs
Guardianship order revoked and a new guardianship order made subject to conditions and directions
Summary of Tribunal's decision: The represented person, VM, is a 58yearold woman suffering from early onset dementia and is now severely impaired. The Tribunal reviewed the management of VM's financial affairs by her sister, LM, as enduring attorney under an enduring power of attorney and whether an existing guardianship order, under which LM was appointed as VM's plenary guardian except in relation to issues of contact with other persons, the Public Advocate being appointed to determine contact issues, should be varied or revoked.
VM's three children and another sister, SM, sought changes to the current arrangements on the basis that LM was not providing the children with information or involving them in decisionmaking about VM's financial and personal affairs. The children proposed that there be an administration order made and that the administrator and guardian both be independent persons who would provide information to the children and involve them in decisionmaking.
The Tribunal concluded that VM's financial affairs were being managed appropriately by LM under the enduring power of attorney, but that directions should be made requiring the enduring attorney to provide sixmonthly reports to the children regarding VM's financial affairs and to consult them in relation to significant decisions. The enduring attorney was also authorised to contribute to the cost of the children travelling from interstate to visit VM. An administration order was not required.
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In relation to personal affairs, the Tribunal determined that LM was acting appropriately and should continue to be plenary guardian (with the exception of contact decisions), but should provide information regularly to the children regarding their mother's welfare and should involve them in decisionmaking. In addition, the guardian should authorise staff at the nursing home in which VM resides, and private carers retained to provide extra services, to provide information to the children in response to any reasonable request.
The Tribunal determined that the Public Advocate should continue to be VM's guardian in relation to contact matters because there were ongoing issues between SM and staff at the nursing home and the private carers that could escalate at any time. There was also an issue that had arisen in the course of the hearings involving VM's involvement in a sexual relationship with another resident of the nursing home and whether she was capable of giving informed consent for this or not. The Tribunal considered that the Public Advocate should enquire into this matter and report to LM, the children and nursing home staff on the outcome of the enquiry.
The guardianship order is to be reviewed in two years.
Category: B
Representation: Counsel:
Solicitors:
Case(s) referred to in decision(s):
VAM [2010] WASAT 183
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REASONS FOR DECISION OF THE TRIBUNAL:
1 These reasons were delivered orally on 4 July 2013 and have been edited from the transcript.
Introduction and background 2 These proceedings, under the Guardianship and Administration Act 1990 (WA) (GA Act) concern the represented person, VM. Before delivering the decisions that I have made with the reasons for them on the various applications that have been made to the Tribunal, I wish to make some opening comments, namely: a) These proceedings are quite unfortunate for several reasons: firstly, because of VM's circumstances and deteriorating mental state and, secondly, because what seemed at first to be a good relationship between VM's family members now seems to have deteriorated for reasons that are not entirely apparent ‑ to the point where communication between them seems more or less impossible, making the overall situation go from bad to worse. b) The case is one of a kind that is difficult for the Tribunal to determine. It involves personal conflicts, events over a considerable period of time, and perceptions of events and motives of the parties that differ greatly. Added to this is the problem that VM's three children, who are vital participants in the matter, live outside Western Australia and have to participate by telephone, which is never entirely satisfactory. c) My general approach to the case has been not to try to resolve the conflicting versions of facts or motives of the players, for a couple of reasons. First, the exercise of doing that would not be proportionate to the benefit to be gained, given that it seems to me that the differences are considerable and are unlikely to be easily reconcilable ‑ and dwelling on the factual history may well inflame the conflict that clearly exists. My second reason for that approach is that my focus is on the present needs and best interests of VM ‑ and to a considerable (Page 5)
extent that focus does not require me to resolve all the various conflicting factual claims. 3 VM is presently aged 58 years and she has a diagnosis of early onset Alzheimer's dementia. She is now severely impaired in her cognitive abilities, and for the last few years ‑ since December 2010 – she has lived in a nursing home. Before I set out the precise matters that are before the Tribunal, I need to set out some of the background to the case because VM's personal history and the history of previous proceedings in the Tribunal are relevant to the issues in these current proceedings. Necessarily, this history is brief and touches on only the important points and events. 4 Prior to 2009 VM lived in New South Wales. She was divorced with three children ‑ two daughters (R and L) and one son (J) ‑ who in 2009 were aged 17 to 21 years. She also has three sisters ‑ SM and LM (who live in Perth) and K - who lives in England and who has not participated in these proceedings. 5 From about 2006 VM lived in a de facto relationship with a Mr J and it appears that by about 2007 signs of cognitive deterioration were noticeable to family members. After her father's death in 2007, and whilst she was in Western Australia, VM made an enduring power of attorney (EPA) on 7 November 2007 in which she appointed LM as her enduring attorney and two other persons, an accountant and a friend, as substitute attorneys. I note that VM also executed a power of attorney under the laws of New South Wales at the same time in similar terms. 6 By October 2009 VM's cognitive state had deteriorated further and the relationship with Mr J appears to have been in difficulties. SM and her husband brought VM to Western Australia ‑ ostensibly to obtain a second opinion but perhaps with a view to her being here for a longer period of time. Prior to that, some of VM's children had lived with her at times but the relationships seem to have been affected by issues concerning Mr J. 7 In late 2009 Mr J commenced proceedings in the Guardianship Tribunal of New South Wales seeking a guardianship order and orders in respect of the power of attorney that had been made. He also commenced proceedings in this Tribunal at the same time, seeking a guardianship order under the GA Act. I note that at that time a report from a geriatrician, Dr C, mentioned that he was confident that a diagnosis of Alzheimer's dementia of moderate to severe degree (Page 6)
was indicated, and he noted at that stage that VM was totally reliant on family members. 8 The proceedings commenced by Mr J in this Tribunal were opposed by family members. It appears that eventually Mr J tried to withdraw the proceedings in New South Wales and in Western Australia. The proceedings in New South Wales did not proceed but those in this Tribunal did and a hearing was held in February 2010 ‑ at which time LM was appointed as VM's limited guardian with powers to make treatment decisions and decisions in relation to contact and services. The contact issue at that stage was to deal with issues concerning Mr J. 9 No orders were made regarding VM's financial affairs at that time because, firstly, there had been no application but, secondly, everybody agreed that the EPA was operating effectively. At that stage VM was living with LM and said she was happy doing so. LM proposed herself as the guardian and it is apparent from all the written material lodged with the Tribunal that the relationship between VM and LM was supported by all family members in the sense that everybody was happy that VM should continue to live with LM. 10 It was also apparent that the relationship between VM and her children had been a troubled one in the previous few years. It is possible to speculate as to what the causes of that were, but I note that it was, no doubt, affected by the approach that Mr J had taken to the three children, the effect of VM's cognitive decline, the impact of an unhappy divorce a few years before and, indeed, the impact of the incidents a few years previously that had resulted in VM being unable to work as a nurse and a midwife. 11 In the 2009 proceedings the three children proposed that they would apply to be a guardian for VM, but only if LM was not appointed as guardian and on the basis that VM would stay in Perth with LM. The children provided statements to the Tribunal to the effect that VM had said she wanted to stay in Perth with LM and wanted LM to look after her. 12 L's statement was to the effect that she visited Perth in late 2009, when VM had said that she wanted to stay in Perth. The best thing about VM being cared for by LM, according to L, was that LM was going to great lengths to acknowledge VM's history and to keep her in touch with activities and people that she was familiar with. (Page 7)
13 R's statement was to the effect that she was happy that VM was in Perth, that there was regular contact with VM, and that VM was enjoying activities with LM. R thought LM was doing a great job and, although R agreed with the proposal that the three children might be appointed as guardian, this was on the basis that LM was not and that LM would continue to do everything regarding both finances and personal affairs. 14 K lodged a statement at that time supporting LM as the person who looked after VM's guardianship matters and financial matters. K emphasised the need for VM to have contact with her children throughout her life. 15 I pause here to note a submission that was lodged by LM with the New South Wales Guardianship Tribunal in January 2010, because it summarised the position regarding the three children in what seems to me to have been a perceptive manner. It emphasised the need for VM to maintain links with her children because, LM said, she knew how much VM loved her children, that the children had been through the divorce and did not understand VM's condition in the past, and that they were, or might have been, under the influence of a hostile ex-husband. LM spoke of VM's great joy in having J and L visit at around that time. LM made a statement that is worth quoting because I will come back to it later. The quotation is this: Specialists in [the town in New South Wales where VM lived] expressed to me their concerns about the children not getting the chance to re-connect with their mother before this disease took her further. At the time, I was more concerned with VM than what appeared to be torn and poorly-behaved children having closure. It's critical for them to have this connection restored. 16 The result of that 2010 hearing was as I outlined above. 17 The next event that occurred was that in September 2010 SM applied for an administration order for VM and to have the guardianship order varied. She referred to longstanding sibling rivalry with LM and proposed that some third party be appointed to make decisions for VM. SM said that LM had made it hard for VM's children to communicate with her and SM wanted VM's money to be used to allow her three children to travel to Western Australia regularly. 18 The Public Advocate was asked to investigate and provided a report to the Tribunal in which the Public Advocate reported that VM had been interviewed, that the application made by SM was causing VM distress, (Page 8)
that she had concerns regarding contact with SM, and that she thought LM was doing a great job. 19 R made a submission in those proceedings in which she opposed SM's applications and supported LM continuing as guardian. She said LM had done a great job organising care and activities, and that LM supported VM staying in touch with old friends. She quoted VM as saying that she did not want to see SM. R thought there was no need to change the arrangements because she wanted to uphold VM's choices. 20 L lodged a statement in which she said LM had worked tirelessly to see VM got the best care and activities, that LM had made an effort to keep the three children informed about VM's care, and that it was in the best interests of VM to keep LM as guardian because that is what VM would want. 21 LM informed the Tribunal at the time that she had made a decision to deny SM contact with VM at that stage, that she had taken extensive advice and consulted with all concerned, and that it was in accordance with VM's wishes. 22 The Tribunal decided, in November 2010, that the application for an administration order would be dismissed and there would be no change to the guardianship order. The Tribunal published written reasons for that decision: VAM [2010] WASAT 183. In essence, the conclusion was that there was no evidence of anything other than appropriate financial management and appropriate decision-making regarding personal matters. 23 SM applied for that decision of the Tribunal to be reviewed by a Full Tribunal and, in December 2010, the Full Tribunal confirmed the dismissal of the administration application but adjourned the hearing in relation to guardianship because there was some suggestion that, in fact, SM had been able to have satisfactory contact with VM and the matter was referred to the Public Advocate to look into that aspect. 24 The result was that in March 2011, LM was appointed as VM's plenary guardian except for the issue of contact with others, and the Public Advocate was appointed for that purpose ‑ which brings me to the current proceedings. (Page 9)
Current proceedings 25 In October 2012 L applied to the Tribunal for a review of the guardianship order on the basis that LM was not including VM's three children in important decisions, and for orders under s 109 of the GA Act in relation to the EPA on the basis that LM was not supporting financially the children seeing their mother, that certain aspects of physical care were not appropriate, and that the children were concerned regarding the management of finances and questioned VM's capacity to execute the EPA in 2007. 26 The application sought that the guardianship order require LM to produce regular reports regarding VM's progress and for the three children to be included in the decision‑making. The children wanted six‑monthly or annual audits of investments and their management of money, starting prior to LM starting to manage VM's affairs. 27 The Tribunal made some programming orders and there was a hearing on 24 January 2013. The only substantive order made at that hearing was that, pending a final determination of the matters, LM, as attorney under the EPA, was authorised and directed to meet from VM's funds the costs of the three children travelling to Perth once, and associated costs. 28 There was a second hearing on 2 May 2013 but, in the meantime, L had applied to the Tribunal in April 2013 for administration and guardianship orders, again citing a lack of communication about the cost of future care, the travel to see VM, and concerns regarding investment of funds. It was proposed that a non‑family member be appointed, that there be involvement by the three children in the major decisions regarding VM's health, and that the children be kept informed of any significance events concerning VM. 29 By the time of that hearing, copious submissions had been lodged by all of the parties, and some new evidence was adduced. Orders were made that all parties would be provided with copies of the documents lodged and would be able to lodge further submissions on certain specified points. The Tribunal would then determine whether a further hearing was needed or whether a decision could be made on the material available to the Tribunal. In the event, I consider that further hearings are not needed, that there is sufficient material before the Tribunal, and that all the parties have had a sufficient opportunity to present their points of view so a decision can be made on the material that I have now. (Page 10)
Issues to be determined 30 I note that there is already a guardianship order in existence and, on a review, it can be amended in any way, so there is no need for the lodgement of fresh applications for a guardianship order. Regarding the guardianship order, on review, I need to consider whether the grounds for making the order still exist, these going to the capacity of VM to make decisions for herself, and whether there remains a need for someone to be appointed as VM's guardian. If an order is needed, then the issues are who should be appointed and with what powers. 31 In the case of the applications for an administration order, whether an administration order can and should be made must be addressed and, again, that involves the issues of VM's capacity to manage her financial affairs and whether there is a need. In particular, in relation to need, I must consider whether there is a less restrictive means by which the need can be met; for example, the EPA under which VM's affairs have been managed for some time. 32 Regarding the applications made under s 109 of the GA Act for orders relating to the EPA, the issue is whether there is any reason for the Tribunal to intervene, having regard to whether or not it appears that the attorney, in this case LM, is meeting her obligations under the EPA and whether the EPA is operating in VM's best interests. 33 As can be seen, the issues regarding the administration order and the EPA are connected. If the EPA was validly made, is operating in VM's best interests, and the attorney has adequate powers to manager her affairs, then an EPA will usually be a less restrictive alternative to an administration order. I note that if an administration order were to be made, I can, and in some cases must, revoke an EPA. 34 The GA Act sets out some principles that must be observed when determining issues such as these, and I will briefly summarise them as they apply to VM - that the primary concern of the Tribunal shall be the best interests of VM; that VM is to be presumed to be capable of looking after her own health and safety, making reasonable judgments about matters relating to her person and managing her own affairs, and making reasonable judgments about her financial affairs unless the contrary is proved to the satisfaction of the Tribunal; that any orders that are made should be as limited as possible; that orders should not be made if VM's needs could be met by less restrictive means; and that, in considering any matter, I should as far as possible seek to ascertain VM's views and wishes as expressed now or as gathered from her previous actions. (Page 11)
VM's capacity 35 I turn then to the question of the capacity of VM to make reasonable judgments or decisions about her affairs. The specific matters are set out in s 43 and s 64 of the GA Act. I will not set them out, but they go to VM's capacity to make decisions, to make reasonable judgments, and to look after her own health and safety. In none of the past proceedings, or in these proceedings, has anyone contended that VM is now capable of doing these things. 36 It is necessary to refer only to a couple of matters to support why I consider that VM is incapable of doing any of those things. First is Dr C's report from November 2009, referred to above. Second, in the current proceedings, Ms C (who is the manager of the nursing home in which VM lives) provided a report in which she referred to a mini mental state examination score, when VM was admitted to the nursing home in December 2010, of 10 out of 30, and a psychogeriatric assessment score in August 2012 of 19 out of 21. Both of these scores would indicate severe cognitive impairment. 37 In addition to that, there is the oral evidence from Ms C and other parties that VM has lost most of her communication skills except in relation to very basic things; that she cannot understand anything except very simple things; that there has been significant deterioration of her cognitive abilities since admission to the nursing home, and that she now has no or very little decision‑making capacity. My conclusion is that I am in no doubt that the presumptions of VM's capacity to do the things mentioned in s 43 and s 64 of the GA Act are displaced. 38 VM is not able to do any of those things by reason of the mental disability from which she suffers; namely, Alzheimer's dementia.
Need for guardianship or administration orders 39 I turn then to the question of whether there is a need for a guardianship order or an administration order. Regarding her financial affairs, VM has substantial assets that need to be managed to ensure her future care. Somebody has to do it for VM, either under the existing EPA or, if that is not appropriate, an administration order. (Page 12)
40 As regards VM's personal affairs, there is a current order in existence. It is clear that VM is incapable of making any decisions for herself regarding these matters, so whatever personal matters are relevant, they will need to be determined for her by somebody ‑ so a guardianship order is needed. 41 That brings me to the issues that were the most contentious in these proceedings, namely: who should be the substitute decision‑maker, whether under an EPA or an administration order regarding finances, or a guardianship order regarding personal affairs, what powers those persons need, and whether there should be any directions or conditions attached to the performance of those functions.
Financial affairs 42 I deal first with the question of VM's financial affairs. This involves, in essence, determining whether it will be in VM's best interests to leave the management of her financial affairs to LM under the EPA. The first issue that I will address is VM's capacity to make that document at the end of 2007. Apart from it being raised in L's current application, it had been raised by Mr J, but not pursued by him, in 2009. 43 There is a presumption that VM was capable of making this document at the time, so what evidence is there that suggests she was not capable, contrary to the presumption? The evidence is that by 2007 there were signs of memory impairment emerging. There are several possible explanations for this, apart from dementia - which had not been diagnosed at that stage. These include the trauma of the death of the child in her care as a midwife and the subsequent investigation and disciplinary proceedings; the death of her father; and the deterioration of her relationship with Mr J. I also note a report from 2009, from the Greater Western Area Health Service in New South Wales, that VM had been known to mental health services in that State in 2002 and 2005 with issues regarding anxiety, situation crisis, job loss and bereavement. 44 It was also evident, in particular from a statement by K in 2009, that in 2007 it was apparent that there would be a need to help VM secure her inheritance from her father ‑ in particular, from any attempt by Mr J to access it ‑ and that this led to VM's sisters in Perth discussing these issues and deciding, with VM's agreement, that there should be an EPA made in favour of LM. Various reports from 2008 and later show that there were cognitive impairments apparent, but they also refer to VM being capable of many day‑to‑day activities at that time. (Page 13)
45 Overall, I am not prepared to conclude that there is evidence at this late stage to rebut the presumption of capacity in 2007. I am comforted in that view by the fact that family members have not raised this capacity issue in the past ‑ even SM did not raise it when she sought to change the arrangements in 2010. 46 That being so, the next question to focus on is whether LM, as attorney, is exercising the powers under the EPA in VM's best interests. In the 2010 proceedings LM provided the Tribunal with comprehensive documents regarding VM's estate. In summary, at the end of October 2010, VM had cash in term deposits of $565,000 (some of which was in a superannuation fund), a share portfolio of $89,000, and a house in New South Wales valued at $320,000. 47 Apart from SM, no one had concerns about how VM's financial affairs were being managed at that time, and SM's concerns were, at least in part, more to do with the perceived delay in LM's finalisation of their father's deceased estate. 48 Similarly, in these proceedings, LM has provided a statement of VM's assets (there are no liabilities) with supporting documents. As at January 2013, VM had bank accounts totalling $102,000, a nursing home bond of $271,000, a superannuation fund of $552,000, and shares of $115,000, totalling approximately $1,041,000. By this time the house in New South Wales has been sold and the proceeds invested. LM also provided documents setting out all VM's income and expenditure since 2011. During that time, of course, all of VM's expenses had to be met from her income. It is important to note that included in the expenses is the cost of private carers engaged by LM who take VM out of the nursing home on various outings and provide other personal services on a more or less daily basis. 49 Overall, I can see no evidence of mismanagement or unwise management of VM's financial affairs by LM. The only possible areas of complaint were made in a submission from J and were that the house in New South Wales could have been rented rather than sold (although J acknowledged that he could understand why a sale was preferred) and that the proceeds should have been invested in shares that would have generated a greater return, given recent increases in stock market prices. I place little weight on those criticisms; investment decisions for persons such as VM will always require a careful consideration of risk versus possible return. As more recent events on the stock market have shown, prices can go down as well as up. (Page 14)
50 I will address briefly some other issues raised by the three children. The first issue concerns some trust accounts which appear to be matters of considerable concern to the children and which involve some bank accounts that VM previously held in her name, but as trustee for the children. There were three bank accounts with various amounts in them which, it appears, VM closed, and the children are concerned that LM, as attorney, has not responded adequately to their concerns about these accounts. 51 I note from documents lodged by LM, and which I understand were previously provided to the three children, that the account for L was closed in April 2001, the account for R was closed in January 2005 and the account for J was closed in August 2007. There are documents to show that the proceeds of J's account were paid to his father in June 2008. The amounts for L and R together total approximately $11,000 and it is not clear what happened to those funds when the accounts were closed; where those funds came from and what the proceeds were used for is now impossible to ascertain. 52 Whether VM has any liability to her daughters for the proceeds is also impossible to ascertain. What is clear is that all of this occurred prior to LM's involvement and that LM is entitled to take the view that she should not pay anything from VM's estate unless she is satisfied that there is a legal obligation to do so. Nevertheless, the issue has become an irritant and, presumably, it reinforces L and R's perceptions that LM has not acted reasonably. I cannot conclude that she has acted unreasonably although, of course, it is a matter of regret that it resulted in exchanges of letters from lawyers. 53 The next issue that I want to focus on involves travel costs, which is the issue about whether any of VM's funds should be used to pay for her three children or her grandchildren to travel to Perth. LM has, on occasions, organised such trips ‑ not all of which have actually occurred because of intervening circumstances. LM says that she is willing to finance such trips in future, but the children will have to organise trips for themselves now that they are adults. I note that since the orders were made in January 2013, J has made a brief visit and R is due to make a trip in the near future with her children. 54 This issue, in my view, reflects primarily a breakdown in communication of the kind that I have referred to earlier. If VM's estate can afford it and the three children need financial assistance to travel to see their mother, then it is entirely appropriate for an attorney, (Page 15)
such as LM, to utilise a reasonable amount of VM's estate to assist in that regard. It is especially important to do this whilst there is some chance that VM recognises her children. There is already evidence that this recognition may be going, or may have gone. 55 The next issue I want to focus on concerns the provision of information to the three children, and their involvement in decision‑making, about financial matters. It seems to me that problems about information and decision‑making are inevitable where: • VM has considerable funds, but is completely without decision‑making capacity herself and is totally reliant on others; • VM has very large and costly care needs; • there are adult children who are naturally interested and concerned for VM's wellbeing, but who are by distance prevented from having regular physical contact and unable to have meaningful discussions with VM due to the deterioration in her cognitive functioning; • the substitute decision‑maker has firm views about the importance of putting VM's interests first, ahead of all others; and • there seems to be personal factors at play that hinder personal communication. 56 Having said that, and despite my earlier conclusion that there is nothing to indicate the EPA is not being operated by LM in VM's best interests, it does seem to me that in a situation such as this a couple of things should happen. VM's three children should have access to information about their mother's financial affairs on a regular basis and they should be consulted whenever significant financial decisions need to be made. Overall, they should be encouraged and permitted to be involved in and knowledgeable about their mother's affairs. Lack of information breeds suspicion faster than anything else. 57 I propose to deal with this need in the following way. I will not make an administration order because the EPA is a less restrictive alternative and is operating satisfactorily, and is also what VM wanted when she was able to express her views. I will, however, direct LM, as attorney, to do a number of things. (Page 16)
a) First, LM should provide the three children with reports about VM's assets and liabilities as at 30 June and 31 December of each year, and her income and expenditure for each six month period. The first statement should be as at 30 June 2013, and the income and expenditure for the six months to that date. Financial assets, including shares held, are to be specified. This information will enable the children to understand better the financial arrangements and will allow them to communicate with LM on an informed basis. b) The second direction will be that LM is to consult and take into account the views of the three children in relation to any material financial transaction to be undertaken. I would not expect this to occur frequently, as VM's situation appears relatively stable. It also needs to be understood by all that LM retains the final ability to make decisions after consulting the children, consistent with her obligations under s 107 of the GA Act to exercise her powers as attorney with reasonable diligence to protect VM's interests. 58 If, as I hope will not be the case, significant issues arise on which LM and the three children disagree, then it will be open to the children to apply to the Tribunal, and they will be able to do so, on the basis of specific matters where they consider LM's decisions are not in VM's best interests. 59 I will also authorise LM, as attorney, to pay or contribute to the reasonable costs of the three children, and any grandchildren, in travelling to Western Australia once per calendar year and return, including any reasonable expenses for transport and accommodation in Perth. If, having regard to LM's assessment of the nature and extent of VM's estate, including any estimated future care costs, LM considers the estate cannot reasonably afford to meet such costs, then LM is to provide to the children her reasons for forming that view.
Personal affairs 60 I turn then to the question of guardianship. The current order gives LM the power to make all kinds of decisions concerning VM's personal affairs and wellbeing, apart from the issue of contact with other persons ‑ where the Public Advocate has the role. The Public Advocate's (Page 17)
appointment was primarily to deal with issues arising from SM's attempt to have contact with VM. 61 I have already concluded that a guardianship order is needed. The issues at this point to focus on are whether LM has acted in VM's best interests and, if not, whether a new guardian should be appointed or directions given to LM regarding the role, and whether it is still necessary for the Public Advocate to be guardian for contact decisions. 62 I turn to address the question of whether LM has acted in VM's best interests in relation to her personal affairs. Section 51 of the GA Act specifies that a guardian must act according to his or her opinion of what would be in the best interests of the represented person. In other words, the issue is a subjective one ‑ it is the guardian's opinion as to what would be in the represented person's best interests. 63 The same section of the GA Act provides guidance as to what is involved in the concept of acting in a person's best interests. The factors are set out in s 51(2) of the GA Act and I will not set them out in full because not all of them are relevant, especially in the light of VM's progressive illness. Issues such as encouraging and assisting VM to become capable of caring for herself and making decisions for herself have become increasingly less relevant. 64 I will focus on some specific issues below but, overall, I consider from all the evidence and material that LM has been an advocate for VM, and she has encouraged and helped VM to live and participate in the community by way of caring for her in her own home and by arranging private carers to provide VM with activities outside the nursing home. LM has taken account, as far as possible, of VM's wishes and she has generally acted in a manner that has been least restrictive of VM's rights but consistent with VM's proper protection. 65 Some concerns have, nevertheless, been expressed, particularly in relation to whether LM has done all that she could have done in maintaining any supportive relationships that VM may have. This, of course, is a reference to whether there was something she should have done to facilitate a better relationship or more frequent contact with the three children. The criticisms of LM's role as guardian by the children centre on similar issues as those relating to financial affairs, namely: • the lack of information and the inability to get information when asked for - and this is contrasted to the information that is perceived by the children to be (Page 18)
provided to others, such as a former partner of VM's and LM's current partner; • the non-involvement of the children in decision‑making; • a failure to respond adequately to requests for items of sentimental value that are now of no practical use to VM, such as an address book; and • some concerns expressed about VM's physical healthcare which, it is said, may not have been addressed as well as it could have been. I must say, I do not see any evidence of this and I accept that VM receives regular medical attention and treatment where it is necessary, so I will say no more about that particular point. 66 There were also a number of issues regarding SM's access to VM, which I will deal with below. 67 Regarding the information that may be given to the three children and their involvement in decision-making, my comments above regarding the children's involvement in financial affairs are equally applicable. The comments made by LM in the January 2010 submission to the New South Wales Tribunal that I referred to above puts that need for connection between VM and her children as well as, or better than, I can. 68 Despite what seemed to be the good intentions and goodwill of LM and the three children, it has not quite worked out in that way, and it is not clear why. There have been some things done to facilitate information and contact, and I mentioned these in passing without passing any kind of judgment about them. LM has provided periodic reports of what carers are doing with and for VM, and there have been some visits by the children to Western Australia - but I consider that those visits have not been enough - although I make no judgment about why they have not happened more frequently. 69 I was told that Skype had been tried fairly recently to facilitate 'face-to-face' contact - but this failed as it was too confusing for VM - and that a mobile telephone had only very recently been provided. The main value of this telephone, it seems to me, would be so that the three children could talk to the carers, given VM's reduced communication abilities. (Page 19)
70 Some of these things will have been useful and helpful but, in many ways, it seems to me that some of them are too late now that VM's ability to remember or recognise the three children and to communicate with them is doubtful. 71 I accept Ms C's evidence that it was not clear whether VM remembers the three children, as she does not speak about them. I also accept J's evidence that, on a recent visit, it was not clear whether his mother actually remembered who he was or whether she might have confused him with his father or, indeed, whether she thought he was a stranger. It seems to me that the crucial years were 2010 and those immediately following when great efforts should have been made to maintain contact. 72 It seems that the three children were relatively happy with LM's role until at least the end of 2010. It is not clear when things went wrong to the extent that applications were made to the Tribunal in October 2012. I note that, by then, VM had been in the nursing home for nearly two years. It needs to be remembered that when VM moved to Western Australia, J was just finishing school and L and R were in their early to mid‑20s. In other words, they were very young, apparently without significant financial resources and, no doubt, they were still struggling to fully appreciate the extent of VM's illness and the progressive nature of it. 73 The three children needed, in my view, considerable assistance to maintain ‑ perhaps even to re‑establish ‑ their relationship with VM. My conclusion is that LM may have, as she said in the January 2010 submission and in these proceedings, put her concern for VM's welfare and needs ahead of everything else. That was not wrong, but perhaps greater effort could have been made to inform and involve the children. She may also have been a little too suspicious of the children's motives, thinking that they were too interested in accessing VM's money. 74 I do not want to overstate this, as VM's needs were obviously great and increasing and LM has, in my view, sought to do all the things that seemed to be needed back in 2009/2010 and which earned her the support of family members at that time. 75 As regards provision of information specifically, I would make several comments. The first is that there seems to have been, perhaps, too much emphasis on protecting personal information by both LM and the nursing home. Clearly, the confidentiality of personal information (Page 20)
should be maintained and should not be disclosed. It cannot be disclosed to anybody without authority. VM could, if she were capable, instruct the nursing home to convey to the three children what would otherwise be confidential information. The nursing home has obligations of confidentiality arising from both common law and the aged care legislation under which they operate. Those things would not, in my view, override VM's ability, if she were capable, of authorising disclosure to others. 76 Because VM is not capable, the whole point of guardianship law is to authorise another person ‑ in this case LM ‑ to make the decisions and give the kinds of authorities to third parties that VM cannot herself do. In other words, LM, as guardian, could give otherwise confidential information to third parties such as the children if she thought it was in VM's best interests to do so. Similarly, LM could give authority to the nursing home to do the same thing. 77 It seems to me, in circumstances where VM has largely lost the capacity to communicate, particularly by telephone, and her three children live in other places and cannot see her often, that it would usually be in VM's best interests for information about her welfare and care to be communicated to the children ‑ because that would be part of maintaining that supportive relationship. This would not be hour‑by‑hour or even day‑by‑day information, but it would be sufficiently detailed information as would enable the children to feel a sense of understanding of what VM is doing, how her illness is progressing, and of any medical issues or other welfare issues that may be emerging. 78 Without that information, it is not hard to see how the three children may develop a sense of being excluded from involvement in their mother's welfare and decision‑making, or of having to fight for any information that can be obtained. That sense of frustration will, I consider, be exacerbated if the children believe that information they want, but do not have, is known by others who are not family members (reference in this context was made to the former partner of VM and to LM's partner). 79 An example of this type of information that emerged during the hearing was that VM has commenced a sexual relationship with another resident of the nursing home, and I will return to that later in these reasons. I would not necessarily criticise LM for providing personal information about VM to people such as the ones I have just mentioned, (Page 21)
or enabling them to obtain it. I note LM's partner attended the hearings and heard all the evidence tendered. 80 Ms C made the point that, even if the guardian consented, it would not be appropriate for the nursing home to pass on personal information ‑such as that relating to a sexual relationship ‑ because of the separate obligations of confidentiality under aged care legislation. I doubt that is correct but, even if it is, the nursing home would have an obligation, in my view, to inform the guardian, and the guardian should, in my view, convey it to the children of a person such as VM as part of keeping them informed. For a person in VM's position, I find it hard to identify information that should not be passed on to her three children. 81 Having said all of the above and notwithstanding the concerns that I have highlighted, I do not consider that I can conclude that LM has acted in her role as guardian in ways that were not, in her opinion, in VM's best interests. I am satisfied ‑ and the evidence supports this ‑ that VM's care is excellent and that the extra services arranged by LM have been to VM's great assistance. 82 I therefore propose that LM should continue to be VM's guardian ‑ but subject to the matters I now address. Firstly, should there be a joint appointment, as proposed by R in a recent submission ‑ either herself or L jointly with LM? The proposal was made by R on the basis that LM had '... lied to us from the word go in relation to promises she made to us for our support in being appointed originally', and on the basis of LM's failure, so it is said, to keep her promises regarding returning VM to New South Wales to live, involving the three children in choosing a nursing home, and fostering a relationship with the children that had not been possible when VM lived with Mr J. 83 Where two persons are appointed jointly as guardians, all decisions must be made jointly, failing which a decision cannot be made. A joint appointment of LM and one of VM's daughters would certainly force a sharing of information and decision‑making ‑ but any appointment has to be an arrangement that has a reasonable prospect of working. It seems to me that the level of distrust and suspicion between LM and the three children is now so great that a forced joint activity in this way is likely to be a recipe for decisions not being able to be made, with the inevitable consequence that the parties would be back before the Tribunal before long to have the joint arrangements reviewed. (Page 22)
84 In any event, I believe I can modify the current order in a way that addresses some of the concerns. As was the case in relation to VM's financial affairs, I consider that LM, as guardian, should be directed to do the following: a) authorise the management of the nursing home to nominate one or two staff members who can deal with enquiries from the three children regarding VM's welfare and who are authorised by LM to provide information regarding VM's care and wellbeing in response to any reasonable request from any of her children; b) authorise any private carer engaged to provide services to VM to provide information regarding VM's activities in response to any reasonable request from any of the children; c) provide the children with a written report, not less than monthly, containing information regarding VM's activities, care, and welfare generally; d) inform the children as soon as practicable of any absence of VM from the nursing home for more than 24 hours for medical treatment or other healthcare, and of any material change in VM's physical or mental health or cognitive state; and e) consult, and take into account, the views of the children in relation to any significant decision to be made concerning VM's accommodation, physical or mental health, and services to be provided to her. 85 Subject to those matters working satisfactorily, it seems to me that LM can be seen as a suitable person to be appointed as guardian. As a result, it is not possible to do what R suggested as an alternative to a joint appointment; namely, the appointment of a neutral party. The only prospect for such an appointment would be the Public Advocate, but s 44(5) of the GA Act specifies that the Public Advocate cannot be appointed if some other person is suitable and willing to act. Another reason why it is not appropriate to appoint the Public Advocate as a sole guardian is that it is clear that whoever the guardian is will need to communicate and consult a great deal with VM's children ‑ and the Public Advocate is simply not resourced to be involved in that way and to that extent. (Page 23)
86 The next issue that I need to address is whether there is still a need for the Public Advocate to be appointed as a decision‑maker in relation to the contact VM has with other persons. As noted above, this provision was originally inserted to deal with issues regarding SM's ability to have contact with VM. Initially, LM had made a decision to prevent that contact. 87 The Public Advocate has provided reports to the Tribunal making the following main points. A contact plan was developed in April 2011 after consulting VM and other family members, nursing home staff, and VM's general practitioner. I do not know the details of that plan, but the Public Advocate has advised that the three children were not happy with that plan. The plan was reviewed in January 2012 and, at that stage, it was decided that there was no ongoing need for restrictions, and the result was that from that time forward, SM has had unrestricted contact. The Public Advocate did provide SM and LM with structured arrangements for the Christmas/New Year period. No concerns have been raised with the Public Advocate regarding contact by anybody else. The point is made that Ms C has facilitated contact with SM, and provides an independent view of whether VM is physically and psychologically well enough to have visitors or outings from time to time ‑ and that the Public Advocate, as guardian, would not want to differ from the recommendations provided by the facility. As result, the Public Advocate supported revocation of this part of the guardianship order. 88 I have considered that carefully, and there are two reasons why I do not propose to accede to that request. The first reason is that it is obvious, from the emails and other documents lodged at the Tribunal ‑ including very recently ‑ that issues frequently arise between the nursing home staff and SM regarding visits – in particular, regarding concerns, justified or not, about SM's conduct when visiting and how that is perceived to be adverse to VM's interests and welfare. 89 It is not necessary for me to try to resolve such claims and counterclaims. It is sufficient to say that SM should be able to visit VM if possible, but it is apparent that the issues could escalate at any time. Somebody should be available to step in to deal with any impasse, and, in my view, it should not be a representative of the nursing home who determines contact arrangements. I say that without meaning any criticism of Ms C or anybody else associated with the nursing home. (Page 24)
90 The fact is, however, that it is evident that there is a degree of suspicion and distrust in both directions ‑ between the nursing home staff and SM ‑ and it would be better if a neutral party such as the Public Advocate were to be involved. 91 I should record that, shortly before delivering these reasons, I was made aware of recent exchanges of emails regarding arrangements for a visit by R and her children shortly after 4 July 2013. First, issues were raised regarding where an outing with grandchildren could be held, because of transport concerns raised by the private carer who is to be involved and who was concerned about SM's involvement. Then, most recently, I understand that the nursing home staff member who was to be involved has also withdrawn due, it seems, because SM was to be involved in the outing and wanted the carer to take VM to S's house. 92 I make no judgments about any of this, but it confirms my view that the Public Advocate, as a limited guardian regarding contact, has an ongoing role to play. Hopefully, the Public Advocate can be involved in sorting out this particular contact issue in time for R's visit. 93 The second reason why I do not intend to revoke the Public Advocate's appointment as guardian to determine contact matters relates to an issue that I referred to earlier in these reasons; namely, the issue of VM's sexual relationship with another resident at the nursing home. I must say I was surprised to hear, at the last hearing, of this relationship and the view expressed by Ms C that, in her opinion, VM retained the capacity to consent to the sexual relationship. 94 My surprise stemmed from the fact that I had, only shortly before, heard evidence, which I accept ‑ including evidence from Ms C ‑ of how VM's cognitive abilities had deteriorated in recent times and how she is now severely impaired in decision‑making by her dementia. 95 I know almost nothing about the circumstances of this relationship and I emphasise at this point that I make no judgment about the desirability or otherwise of it. I am well aware that issues surrounding sexual activity of the elderly and of those with dementia have been the subject of discussion and debate in the media and the academy in recent times. I am also aware that sexuality has been described as one of the last domains of activity and decision‑making to be lost. So I am not, by any means, inferring that VM should not be involved in a sexual relationship, if she has the capacity to give informed consent for it. (Page 25)
96 Other considerations do, however, arise if she lacks that capacity. For a start, criminal offences may be involved where consent is not given or where VM would, or might, be regarded as an incapable person for the purposes of Chapter XXXI of the Criminal CodeAct 1913 (WA). I express no view about any of this and I know nothing about the mental capacity of VM's sexual partner. In my view, if VM is as mentally impaired as I am given to understand in relation to her financial and personal affairs, then there must be, at least, a question mark over her capacity to consent to a sexual relationship. 97 I consider that the Public Advocate should be authorised, as limited guardian, to enquire into the circumstances of the relationship and to consider whether VM is capable of consenting to it ‑ and, if not, what action should be taken in her best interests. The result may or may not require a further application to the Tribunal regarding this issue. I should note, for the sake of completeness that, in my view, a guardian ‑ even a plenary guardian ‑ would not be able to provide a substituted consent for a person, such as VM, to engage in a sexual relationship, if she lacks the capacity to give that consent herself. 98 I propose that the Public Advocate be appointed as limited guardian with powers to determine what contact, if any, VM should have with others and the extent of that contact, making clear that the scope of that authority extends to the Public Advocate, as guardian, inquiring into the circumstances of any sexual relationship VM may have and her capacity to give informed consent to such a relationship. The Public Advocate should also be directed to report on the findings of such an inquiryto the other guardian (LM), VM's children, and to the managementof the nursing home. 99 There is a final issue to mention. The Public Advocate has recommended that LM's functions as guardian need not be plenary (apart from contact), given the likelihood that VM is unlikely to move from her present residence and that there seems to be few treatment or other decisions to be made. It was suggested that LM's powers, perhaps, could be limited to accommodation, treatment, and services. The making of such a limited order would be consistent with the principles of the GA Act that I have referred to; namely, that an order should be as limited as possible to meet the needs. (Page 26)
100 On balance, I have decided that I will not restrict LM's powers in this way. I cannot predict what decisions might need to be made in the future for VM and, for the time being, I consider that LM's powers should remain as plenary, subject to the powers of the Public Advocate in relation to contact. 101 The final question is when the guardianship order should be reviewed under s 84 of the GA Act. The order can be reviewed at any time on the application by LM or the Public Advocate as of right. The three children or the nursing home personnel can apply at any time to have the guardianship order reviewed with the leave of the Tribunal. The orders concerning the EPA are not reviewable under s 84 of the GA Act, but any of the parties can make any kind of application at any time regarding the EPA. So, the matter could be back in the Tribunal sooner rather than later if the orders I will make do not work out in practice. However, if they do work, then I do not want to force the parties to another hearing if that is not absolutely necessary. So, I propose that the guardianship order is to be reviewed in two years' time ‑ by 4 July 2015 ‑ subject, of course, to any other review that might occur in the meantime.
Orders 102 In relation to the applications for an administration order and for orders concerning the EPA made by VM on 7 November 2007, orders to the following effect will be made: (Page 27)
b) To consult, and take into account the views of the children, in relation to any material financial transaction to be undertaken on behalf of VM. c) To pay, or contribute to, the reasonable costs of the children, and any grandchildren of VM, for return travel to Western Australia once per calendar year for the purpose of visiting VM, including reasonable expenses for accommodation and transport in Perth. 3. The applications under s 109 of the Guardianship and Administration Act 1990 (WA) are otherwise dismissed. 103 In relation to the review of the existing guardianship order, orders to the following effect will be made: 1. On review of the guardianship order dated 3 March 2011, that order is revoked and the following orders substituted for it. 2. Subject to order 4, LM is appointed as plenary guardian of VM with all the powers and functions conferred by the Guardianship and Administration Act 1990 (WA) save for the functions to be exercised by the Public Advocate pursuant to order 3. 3. The Public Advocate is appointed as limited guardian of VM with the function of determining, from time to time, what contact, if any, VM is to have with others and the extent of that contact. For the avoidance of doubt, the Public Advocate is directed that the scope of her appointment as limited guardian extends to her: (Page 28)
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