VW
[2016] WASAT 119
•29 SEPTEMBER 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: VW [2016] WASAT 119
MEMBER: MR J MANSVELD (SENIOR MEMBER)
HEARD: 22 JULY 2016
DELIVERED : 29 SEPTEMBER 2016
FILE NO/S: GAA 2192 of 2016
BETWEEN: VW
Represented person
Catchwords:
Guardianship and administration - Review of guardianship and administration orders - Leave required - Contact decision - Change of circumstances - Leave granted for review of guardianship order - Leave refused for review of administration order
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 17A, s 84, s 86, s 87, s 87(1), s 87(5), s 97(1)(b)(iii)
Result:
Leave granted to apply for review of guardianship order
Leave refused for review of administration order
Summary of Tribunal's decision:
VW, a 78yearold woman, was diagnosed with Alzheimer's disease. She lived in a nursing home.
VW was the subject of guardianship and administration orders pursuant to the Guardianship and Administration Act 1990 (WA).
VW had four children, two daughters and two sons. There was a history of conflict and disagreement between some of VW's children. This was reflected in the orders made by the Tribunal. The Tribunal had appointed different combinations of VW's children as her guardian and administrator since March 2014.
The most recent orders from March 2015 had appointed a son as administrator of VW's estate and he and a daughter of VW as her joint guardians.
The joint guardians had decided not to allow VW to visit any of her children for overnight stays but did permit day outings.
The other son of VW, who had previously been her guardian and administrator, disagreed with that decision and contended that the joint guardians had formed a negative view of him because of a false report of a care provider from 2014.
This son also alleged that the joint guardians and administrator were not providing him and his partner with information about VW's health and the state of her financial affairs.
The son and his partner sought review of the guardianship and administration orders.
The Tribunal decided to grant leave for the guardianship order to be reviewed but not the administration order.
The Tribunal found that the decision of the joint guardians concerning overnight stays was a change in VW's circumstances and that there was insufficient evidence before the Tribunal to determine whether on medical grounds she could or could not sustain overnight stays.
The Tribunal decided to refer the matter to the Public Advocate for investigation as to whether the decision of the joint guardians was in VW's best interests.
The Tribunal found that the son and his partner had not presented evidence to suggest that the administrator was acting inappropriately. The Tribunal also found that the joint guardians and administrator provided information to other family members on an ad hoc basis.
Category: B
Representation:
Counsel:
Represented person : N/A
Solicitors:
Represented person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
VW is a 78yearold woman diagnosed with Alzheimer's disease. She lives in a nursing home.
VW is currently under guardianship and administration orders pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
VW has four children, her sons PK and MK and her daughters RW and VK.
There has been and continues to be significant conflict between some of VW's children. This is reflected in the orders made by the Tribunal since early 2014.
On 24 March 2014, the Tribunal appointed MK and RW as joint plenary administrators of VW's estate and MK as her limited guardian (March 2014 orders). An enduring power of attorney made by VW appointing MK as her attorney was revoked.
The March 2014 orders were the subject of a review by the Full Tribunal. The Full Tribunal consists of a judicial member and two other members (s 3 of the GA Act).
The review was sought by VK and is available to any party who is aggrieved by a decision of a single member of the Tribunal (s 17A of the GA Act).
On 30 September 2014, the Full Tribunal revoked the March 2014 orders and made new orders. MK and PK were appointed joint limited guardians and joint plenary administrators (September 2014 orders). The orders were set for review by 30 March 2015.
In January 2015 MK sought review of the administration order (September 2014 orders) and in February 2015, the Public Trustee also applied for a review of the administration order (s 86 and s 87 of the GA Act).
A review of the guardianship order (September 2014 orders) was initiated by the Tribunal pursuant to s 84 of the GA Act.
The review of the September 2014 orders were heard by a single member on 24 March 2015 and the orders revoked. The following new orders were made (March 2015 orders).
PK was appointed the plenary administrator of VW's estate and PK and RW appointed joint limited guardians to make VW's treatment (medical) decisions and to determine what contact, if any, she should have with others and the extent of that contact.
The current application
MK and his partner, ML (applicants) are seeking review of the March 2015 orders. They require leave to apply for the review: s 87(1) of the GA Act.
Leave may be granted by the Tribunal if it is satisfied that because of a change of circumstances or for any other reason a review should be held. The Tribunal may place conditions on any grant of leave: s 87(5) of the GA Act.
The hearing for the grant of leave was held on 22 July 2016. The hearing was attended by MK, ML PK and a family friend. VK advised the Tribunal she was unable to attend and provided a brief written submission.
The decision was reserved.
Decision
I have decided to grant the applicants leave to apply for review of the guardianship order but not the administration order (March 2015 orders). The reasons for my decision follow.
The applicants' case
The applicants disagree with the decision of the guardians that VW is not well enough to be taken from the nursing home for overnight and weekend stays. MK states that he works with people who suffer from dementia and is able to determine from that experience whether, in the case of VW, she can sustain an outing or needs to be returned to the nursing home.
The applicants want the opportunity, denied them by the guardians, to have VW stay overnight at their home. They give as a reason for allowing an overnight stay as enabling them to assist VW to visit an old friend. They envisage VW visiting the friend, staying overnight with them and then spending the next day with their family before returning her to the nursing home.
The applicants state that they do not receive information from the guardians about VW's health and medical needs and recently found out, indirectly, that she had been admitted to hospital.
The applicants maintain that the guardians are biased against them in part because of a purported negative report from November 2014 by the coordinator of home care services of the agency providing in-home support to VW when she was in the primary care of the applicants (SCC report).
The applicants have filed the SCC report (email to PK dated 14 November 2014 titled 'SCC Statement for [VW]', together with a written submission from MK responding to the allegations raised.
The SCC report is a collection of diary notes of the coordinator of home care services for the period 25 August 2014 to 27 August 2014. Among the notes are references to the care provided at that time to VW by the applicants. These references include MK allegedly advising that he was giving VW her 'old medication' and a comment by the coordinator of home care services that this was contributing to VW's increased levels of anxiety and that ML was considered one of the main triggers of VW's anxiety which had been witnessed on numerous occasions by care staff.
In their written submission, the applicants deny the allegations and state that their reputation has been tarnished unfairly leading to a refusal by the guardians to allow VW to stay with them on overnight stays.
The applicants state that the coordinator of home care services should be made to attend the Tribunal to explain the contents of the SCC report.
As regards the management of VW's estate under the administration order, the applicants state that they do not receive any information about VW's financial affairs and are concerned that she has sufficient funds to meet her ongoing needs.
The applicants understand that VW's motor vehicle was to be sold but they are unaware of the outcome of the transaction.
Finally, the applicants state that they hold VW's will in a bank safety deposit box which they say PK attempted to remove without authorisation.
In MK's written submission, he states:
I would like to make clear I am not wishing to apply for guardianship or administration rights in regard to my mum, only to sort out allegations towards my partner and I and to have more access to my mum. I am also concerned about not receiving mum's financial details for approx. 12 month. And not being notified when mum has been ill and taken to hospital.
MK submits that the Public Advocate should be appointed as VW's guardian in place of PK and RW.
The response of the guardians and the administrator
In her written submission RW states that VW has settled very well in the nursing home and that she and PK have been working closely as joint guardians.
RW says that PK has emailed all family members regarding VW's care on an as needed basis.
In respect to overnight stays, RW states:
With the application of allowing mum to stay overnight. There is a concern on [MK]'s Health and issues from previous past in which Police were called to check on his wellbeing and also other concerns which have been stated in the last meeting. [The facility manager] from [the nursing home] has also discussed concerns around overnight stays which we have agreed that taking mum overnight is not in her best interest and places a lot of anxiety on her, however day outings are encourage[d] which all family members are very aware of including [MK] and no restrictions have ever been placed on any family member not to take mum out on these day outings. As mum was very familiar with my home I was taking her every [third] week and unfortunately it was becoming apparent that mum was very distressed on her return and also more aggressive due to the confusion and I have ceased these overnight stays to day outings only.
RW submits that the March 2015 orders should remain in place.
PK states that he and RW frequently discuss the ongoing needs of VW which has included the issue of overnight stays. RW was finding it increasingly difficult to manage the overnight stays because of VW's deterioration and after discussing the matter with the facility manager of the nursing home, it was decided that such outings should stop.
As regards MK's query about the sale of VW's motor vehicle, PK confirms that it was sold for $4,800 and the proceeds credited to VW's bank account.
Concerning VW's will, PK says that MK signed an authority to allow him to have access to it but the bank ultimately refused access. PK says that he has not pursued the matter but remains of the view that the will should be in the safekeeping of the Public Trustee.
PK states that he is willing to provide family members with the yearly accounts that as administrator he must file with the Public Trustee, once the accounts have been approved.
PK states that he regularly updates family members with information about the wellbeing of VW including any hospital admission. He says that he uses the email address he currently has on his computer for MK but is aware that MK has more than one email address (MK says that he has not been receiving these emails).
PK submits that the applicants should not be granted leave to have the March 2015 orders reviewed.
Other reports
The Tribunal was provided with a report from the facility manager of the nursing home. Relevantly, the facility manager states that VW is frequently confused and suffers from delusions. She is disorientated to time and place and has mistaken another resident as a family member. VW is said to be able to converse sensibly only for short periods.
The facility manager is aware of the disagreement between the guardians and MK about overnight stays. She says that PK has described MK as unstable and that he has concerns for VW's wellbeing if in the care of MK for a prolonged period. The facility manager also states an allegation that MK's home environment is reported to be unstable and unsafe.
The facility manager states her view that PK and RW perform their role as guardians and as administrator responsibly and with regard to VW's wellbeing. She says that the guardians have considered the relationship VW has with MK, however have decided that the length of time VW can leave the facility should be restricted to prevent her from harm.
Discussion
On the evidence, I accept that the decision to stop VW from visiting family members to include overnight stays is a change in circumstances which warrants a review of the guardianship order.
The report of the facility manager of the nursing home indicates that PK and RW, as joint guardians, have formed a view as to the suitability of MK to care for VW in an overnight stay.
It is not clear as MK contends that the joint guardians have been influenced in their view by the SCC report or by other matters.
The evidence of RW is that she was finding it too difficult to have VW stay with her and that after the matter was discussed with PK and the facility manager, overnight stays were stopped.
However, the facility manager does not make explicit in her report whether VW is well enough to sustain an overnight stay, nor is there any medical opinion on the issue before the Tribunal. The main reference is to MK's purported instability.
These are matters that should be tested at a review hearing in answer to the question whether the joint guardians have made a decision in the best interests of VW.
I accept that PK emails family members on an ad hoc basis to update them on VW's health needs. It would be useful, I think, for MK to make very clear to PK the email address he wishes information to be sent to.
The review of the guardianship order will be referred to the Public Advocate for investigation and report (s 97(1)(b)(iii) of the GA Act) and the facility manager will be asked to attend the review hearing to give evidence.
I have decided not to grant leave to review the administration order (March 2015 orders). MK has not provided evidence to suggest that PK is acting inappropriately, his only concern being a perceived lack of information. There is nothing on the face of the administration order that requires PK to disclose the state of VW's financial affairs. I note, however, that he is willing to provide family members with the annual accounts he submits to the Public Trustee.
Orders
1.Leave to apply for review of the guardianship order made on 24 March 2015 is granted.
2.The review of the guardianship order is referred to the Public Advocate pursuant to s 97(1) of the Guardianship and Administration Act 1990 for investigation and report to the Tribunal on the following:
a)Whether the joint guardians are acting in the best interests of [VW] in their decision to not permit [VW] to have contact with [MK] and [ML] in overnight stays.
3.The facility manager [of the nursing home] is required to attend the review hearing.
4.The review of the guardianship order is listed for a final hearing on a date to be advised.
5.Leave to apply for review of the administration order made on 24 March 2015 is refused.
I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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