WP and CK - [2013] WASAT 145

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: WP and CK [2013] WASAT 145

MEMBER: MS S GILLETT (MEMBER)

HEARD: 14 MAY 2013

DELIVERED : 3 SEPTEMBER 2013

FILE NO/S: GAA 1406 of 2013

BETWEEN: WP
Applicant
AND
CK
Represented person

Catchwords:

Guardianship - Leave to apply for review granted on condition - Review limited to question of who is to be appointed guardian Suitability for appointment - Continuing family conflict

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 44, s 86, s 87
State Administrative Tribunal Act 2004 (WA), s 35

Result:

Order confirmed
Public Advocate appointed limited guardian

Summary of Tribunal's decision:

The youngest son of an elderly woman with advanced cognitive impairment was granted leave to review the guardianship order made by the Full Tribunal which had appointed the Public Advocate limited guardian to determine where and with whom the elderly woman was to live, and to make treatment decisions. The leave was granted on condition that the review was limited to the question of whether the appointed guardian, the Public Advocate, should be removed and replaced by the applicant or some other person.
The son of the elderly woman said the Public Advocate had been negligent in her duty as guardian, and proposed himself as guardian. He also said that he no longer had any problem communicating with his sister about issues concerning his mother. The elderly woman's daughter disagreed with the applicant and made reference to the ongoing resentment and antagonism between herself and her brothers. She supported the continued appointment of the Public Advocate as guardian. The eldest son supported the proposed appointment of his brother as guardian.
The Public Advocate's view was that there remained a need for an independent guardian to determine the elderly woman's accommodation and that any appointment of a family member or members to make treatment decisions was conditional upon them being able to communicate effectively.
The Tribunal found the younger son was not suitable to act as guardian, given his inability to maintain effective and respectful communication with all family members. Having found there is no other person suitable and willing to act, the Tribunal confirmed the appointment of the Public Advocate.

Category: B

Representation:

Counsel:

Applicant: N/A
Represented person : N/A

Solicitors:

Applicant: N/A
Represented person : N/A

Case(s) referred to in decision(s):

CK [2012] WASAT 189

REASONS FOR DECISION OF THE TRIBUNAL:

Background and history of orders

The history of proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act) in respect of CK, (represented person) has been protracted and has occurred in the context of ongoing conflict and poor communication between family members. Whilst this application is limited solely to the question of who should be appointed guardian of the represented person, it is relevant to set out the background to the present application, much of which is contained in CK [2012] WASAT 189 (CK).
The represented person is an 80‑year‑old widow with a diagnosis of dementia and advanced cognitive impairment. She has three children; her sons, (RP, being the elder, and WP), and her daughter, (SL). Until June 2011, the represented person was living in her own home with services and the support of her daughter, sons and long‑term friends. An Aged Care Assessment Team (ACAT) assessment dated 20 December 2010 reports that she was, at that time, eligible for services as a 'low care recipient'. An enduring power of attorney (EPA) was executed by the represented person on 13 December 2010, appointing SL as sole attorney.
WP made applications to the Tribunal on 29 April 2011 in respect to his mother for guardianship and administration orders and for intervention in the EPA. The Tribunal convened a hearing on 23 June 2011, which all three of the represented person's children, RP, WP and SL, attended. The represented person did not attend the initial hearing or subsequent hearings.
The earlier decision, CK, at [8], sets out events prior to the hearing in June 2011:
… In early June 2011, WP reports that he became more concerned about his mother's inability to care for herself at home. He took her to his own home overnight, but, because of her disturbed sleep pattern and behaviour, arranged for her admission to a care facility in an area close to his home the next day. WP apparently did not consult with his siblings about the move, and they were advised of the placement once it had occurred. SL objected to the placement on the basis that it was, she believed, not a respite placement but a permanent high care placement. She also said that she had identified other aged care accommodation, either closer to where their mother had lived, at which she might be able to keep her pet dog and enable her elderly friends to visit, or in the metropolitan area where both other children of the represented person lived. Once placed in the nursing home, the represented person reportedly became distressed and agitated. The records show that she was given significant sedating medications to manage aggressive and agitated behaviour. She was later reassessed by ACAT as a high care recipient.
Following the hearing on 23 June 2011, the Tribunal appointed SL limited guardian to make treatment decisions, and appointed the Public Advocate limited guardian for accommodation decisions. The appointment of the Public Advocate was made as, although there was agreement that the represented person needed residential care, there wasconflict about the location of that care. SL's appointment as limited guardian to make treatment decisions was supported by WP who said at that hearing that he would 'prefer' his sister to his brother, RP, 'simply because of her background' (T:67; 23.06.11). Whilst RP had earlier supported the appointment of independent decision‑makers, he said later he would 'probably support' his sister's appointment as guardian (T:67; 23.06.11). The support of the brothers for SL's appointment was conditional on SL's consultation with them. The guardianship orders were set for review by 23 June 2012.
The applications for the appointment of an administrator and intervention in an EPA were adjourned to mediation on 30 June 2011, and to a subsequent hearing on 12 August 2011, at which time the Tribunal revoked the EPA executed by the represented person on 13 December 2010 and appointed the Public Trustee plenary administrator, with review by 23 June 2012, in line with the guardianship orders. In respect to the remaining applications seeking intervention in the EPA, orders were made directing the Public Trustee to review the management of the estate by the attorney and to make recommendations in respect to the applications following which the hearing was adjourned to 14 February 2012.
The Public Advocate subsequently determined that it was not appropriate for the represented person to be moved from the facility, despite the distance from her other children, because of the likely disruption to the represented person.
On 16 August 2011, WP filed an application, pursuant to s 17A of the GA Act, for review of the order appointing the Public Trustee as administrator of the estate. At the hearing of that application by the Full Tribunal on 26 October 2011, the administration order was confirmed. In the oral reasons given for the decision by the Full Tribunal, reference was made to the Tribunal's need to consider compatibility between a proposed administrator and any appointed guardian (T:40; 26.10.11). Noting the 'animosity' between WP and SL, the Full Tribunal concluded that it could not appoint WP as administrator.
On 4 November 2011, WP filed an application for leave to apply for review of the guardianship order dated 23 June 2011, by which SL was appointed limited guardian. In his application for leave and for review, WP asserted that he and his brother were 'extremely unhappy with the job' that their sister was doing as their mother's limited guardian. He said that '[t]here has been a total lack of communication between our sister and mum's doctor and our sister and ourselves, which has caused much concern'.
Leave was granted in December 2011, on the condition that the only question to be determined on review was who should be appointed the represented person's guardian to make treatment decisions. The review was listed for hearing on 14 February 2012 to be heard together with the adjourned s 109 applications.
In respect of the applications seeking intervention in the EPA, the Public Trustee had filed, as ordered, a report of the findings of the investigation of the management of the estate by SL, as donee of the EPA, in January 2012. In summary, the Public Trustee reported that, although SL had not provided receipts for the period, the unaccounted for expenditure appeared reasonable for the represented person's needs over that time and an audit of accounts was not warranted.
At the February 2012 hearing, WP challenged the report and said that the investigation had been incomplete, as expenditure he had made with his mother's funds had not been examined and that the investigation was deficient overall. Further programming orders were made, including a further investigation and report by the Public Trustee. Representatives of the Public Trustee attended the subsequent hearing on 1 May 2012 and spoke to their report. WP subsequently sought leave to withdraw the applications seeking intervention in the EPA at the hearing on 18 July 2012 and leave was granted.
In respect of the application for review of the guardianship order, the Public Advocate's representative (Public Advocate) recommended at the February 2012 hearing that there be no change to the order appointing SL as 'medical guardian'. The Public Advocate reported having spoken directly with Dr G, the general practitioner managing the represented person's care:
… [Dr G] said that he had been in contact with [SL], that she did contact him and he has contacted her on occasion. There seems to be ongoing consultation about medication and the Public Advocate understands that [SL] is involved in this with the staff at [facility name deleted]. (T:22; 14.02.12).
WP did not accept the position as reported by the Public Advocate of her conversations with Dr G. He said '… without some sort of evidence of that contact, I do not believe there has been ongoing regular contact between the doctor and my sister' (T:25; 14.02.12).
The applications were adjourned to 1 May 2012. At this hearing, the Public Advocate reported on the contact between SL, as the 'medical guardian', and the doctor as follows:
[Dr G] reports that he has spoken to [SL] on numerous occasion[s] regarding geriatrician appointments, referral to a geriatrician to which [SL] supported that referral. [Dr G] said that he didn't have any concerns with [SL] acting as [the represented person]'s medical and treatment decision‑maker. He found it easy to contact her and he didn't identify any issues there. (T:58; 01.05.12).
The Public Advocate reported that in January 2012, a speech pathologist referral was made, as the represented person had a choking incident at the facility. The Public Advocate said that Ms W (clinical nurse manager) could not confirm whether SL's consent for the referral for a speech pathologist assessment was obtained. The Public Advocate reported that Ms W had indicated that there might be some communication difficulties between staff and SL, and this could be attributed to the geographical distance between SL and the facility, or 'it might simply just come down to a personality clash' (T:59; 01.05.12). Ms W is reported to have said that WP 'gets things done for [the represented person]' and, again, 'she feels that this is a result of him being close by'.
The Public Advocate submitted that SL was making medical decisions appropriately for the represented person. She said that the general practitioner was reported to be comfortable with the communication between himself and SL. The facility indicates that it does have some 'small issues', but that is mainly about staff seeing WP, rather than having to contact SL to talk to her about the represented person. She went on to say:

… The Public Advocate would only recommend changing the current order to appoint the Public Advocate as medical decision‑maker and that would be to minimise further conflict between family members that could eventually result in [the represented person]'s health care and treatment being jeopardised. (T:59; 01.05.12).

WP did not accept that contact had occurred with the doctor, and made allegations about SL's relationship with staff at the facility.
Because of the continued conflicting assertions about the contact SL had had with the doctor and the facility, the application was again adjourned for the production of the integrated progress notes (notes) from the facility, pursuant to s 35 of the State Administrative Tribunal Act 2004 (WA).
The notes produced by the facility were considered, and further submissions were made by WP, SL and the Public Advocate. Following the 18 July 2012 hearing, which dealt with the statutory review of both the guardianship and administration orders made on 23 June 2011 and 26 October 2011 respectively, in addition to WP's application for review of the guardianship order, the Tribunal reserved the decisions in respect to review of both guardianship and administration orders.
The Tribunal made orders on 18 July 2012 confirming the appointment of the Public Trustee as plenary administrator and revoking the guardianship order and substituting an order appointing the Public Advocate limited guardian to decide where and with whom the represented person is to live, and appointing SL limited guardian to make treatment decisions and to consent to the use of chemical or physical restraint. The orders were set for review by 18 July 2017. Written reasons were published on 10 September 2012: see CK.
On 6 August 2012, WP filed an application, pursuant to s 17A of the GA Act, for review of both the guardianship and administration orders made on 18 July 2012, and proposed himself as both guardian and administrator. At the hearing of the application by the Full Tribunal on 26 November 2012, the guardianship order was revoked and the Public Advocate was appointed limited guardian to decide where and with whom the represented person is to live, to make treatment decisions, and to consent to the use of chemical or physical restraint; and the administration order was revoked and WP was appointed plenary administrator.
The orders made by the Full Tribunal were set for review by 26 November 2017. The oral reasons given for the decision by the Full Tribunal, set out the Tribunal's finding that neither SL nor WP are suitable to be appointed guardian for their mother given the 'fundamental conflict between [SL and WP] making it incapable for them to civilly and meaningfully discuss their mother's medical care'.
WP filed an application under s 86 of the GA Act on 25 January 2013 seeking review of the guardianship order. As an application under s 86 could only be made by WP with leave of the Tribunal under s 87 of the GA Act, a letter was sent to WP informing him and inviting him to file an application under s 87. WP filed the s 87 application on 11 February 2013, which states in part: 'It is my belief … that the limited guardian for medical treatment, the Public Advocate, has been negligent in their duty of care towards my mother and has lied to me ...'. Determination of the s 87 application was deferred for one month following receipt of written advice from the Public Advocate that an internal grievance procedure within the Office of the Public Advocate had commenced and that further reports were being sought from a geriatrician and pharmacist that would be of benefit to the Tribunal, should the Tribunal decide to proceed with a review.
The Tribunal determined the s 87 application on 16 April 2013 and made orders granting leave to WP to make an application under s 86 of the GA Act for review of the guardianship order dated 26 November 2012 on the condition that the review is limited to the question of whether the appointed guardian, the Public Advocate, should be removed and replaced by the applicant or some other person.
The hearing of the application was convened on 14 May 2013. A representative of the Public Advocate and the represented person's two sons, RP and WP, and daughter, SL, all attended. At the conclusion of the hearing, the Tribunal reserved the decision.
These written reasons are of the decision made on review of the guardianship order limited to the consideration of the person to be appointed guardian of the represented person.

Legislation

Section 44 of the GA Act relevantly provides:
Who may be appointed guardian
(1)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.
(2)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.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)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.
These provisions are subject to the principles in the GA Act, set out at s 4. Given the limited issue under review, the principles relevant in this matter are contained in s 4(2) of the GA Act that the primary concern of the Tribunal is the best interests of the represented person and in s 4(7) of the GA Act that the Tribunal shall attempt to ascertain the views and wishes of the represented person.

WP's submissions

In his written application, WP contends that the Public Advocate has been negligent in her duty as guardian and that she has not carried out her duties in a diligent manner. In other written submissions to the Tribunal, WP alleges that the Public Advocate has mismanaged his mother's care arrangements and discharge from hospital after she was admitted with a fractured hip, and he refers to 'lies, misinformation and lack of action taken by the Public Advocate'.
WP provided copies of emails he has sent to both the guardian and senior staff in the Office of Public Advocate which detail his allegations in respect to the guardian failing to act promptly to clarify his mother's prescribed medications, fabricating and making misleading statements to family members, and taking steps to replace his mother's doctor contrary to his mother's best interests. WP contends that he 'made an attempt to resolve my complaint with the Public Advocate and had absolutely no satisfaction'.

In addition to the specific criticisms of the Public Advocate made by WP, he submitted that it is in his mother's best interests to have a family member, as the delegated guardian from the Public Advocate's Office is available only during working hours and the on‑call guardian is not familiar with his mother's history and particular circumstances. WP also says issues have arisen between himself as administrator and the Public Advocate as guardian; in particular, he says that, as administrator, he was responsible for dealing with the higher than anticipated charges related to a private physiotherapist whose services were engaged by the guardian.
WP further submits that the two reasons given by the Tribunal in November 2012 for the decision not to appoint him as guardian, which he understood to be the lack of agreement amongst family members as to where their mother should be accommodated and the 'perceived lack of communication' between SL and WP; have now been addressed. WP says he is now in agreement with his siblings that the represented person should be moved to the metropolitan area and his communication with SL has improved considerably, as evidenced by his telephone records. He undertook to communicate regularly with both RP and SL if he was appointed guardian.

SL's submissions

In the hearing, SL said that she does not support the proposal that the Public Advocate's appointment as guardian be revoked and that WP be appointed guardian. She says, in response to WP's criticism of the Public Advocate:
… Like I said, I don't think anything [the Public Advocate] has done has been detrimental. Perhaps, you know, [WP] ‑ unfortunately [WP], who's been at each of the hearings, obviously, because they're his proposals, basically – criticised ‑ has criticised everybody. Everybody on every level, … (T:38; 14.05.13)
In respect to whether WP would act in their mother's best interests, SL said in the hearing:
… you know, that both [RP] and [WP] are advocating that they have always worked in mum's best interest[s]. I think the proof's ‑ the records ‑ you know, the proof is in what's happened to her so far. Everything that's been done to her is not in her best interests. She's been denied everything that she's ever wanted. (T:36; 14.05.13)
SL says that she visits her mother on a fortnightly basis, as this is as often as she could manage given the distance and travel time involved. Although she is grateful that there is now agreement between family members that their mother be relocated to a facility in the metropolitan area, SL expressed her regret that WP agreed to this move only after his relocation to the metropolitan area.
Although SL does not propose herself as guardian, she says she still believes that she was the ideal person to be guardian for treatment decisions. In respect to WP's contention that his communication with his sister has improved considerably, SL agreed that he had communicated more with her, but makes the following comments in respect to the nature of the interaction:
… you can produce phone records and say how many times you've rung somebody, but that doesn't display what the actual phone call was. I was given information but always felt that it was very one‑sided-which is how it's always been[.] (T:40; 14.05.13)

RP's submissions

RP says he fully supports WP's application to be appointed guardian given WP's ability to put in the time and effort. He acknowledges that he had issues with his brother 12 to 18 months ago, but now says that WP and he are communicating. RP confirms that he has no communication with his sister. Despite his improved communication with his brother, RP said in the hearing:
I still firmly believe the biggest problem we have, the three of us, is communications or communication. (T:82; 14.05.13)

Public Advocate's submissions

The Public Advocate provides in her written report to the Tribunal details of recorded contact with family members and/or service providers since 26 November 2012. These records reflect a significant amount of contact with family members, service providers and medical professionals, particularly from January 2013 onwards.
In her written report to the Tribunal, the Public Advocate does not support WP's proposal that he be appointed guardian for treatment decisions, due to concerns as to his suitability. The Public Advocate identifies effective communication to be an essential element in the interactions that a guardian has with family members, medical and allied health professionals and with day‑to‑day carers, and expresses her view that WP is not able to maintain appropriate communication with those involved in his mother's care.
In the hearing, the Public Advocate confirms her support for family appointments where they are considered to be appropriate; however, she qualifies her support of a family appointment for the represented person:
… but there continues to be conflict within the family. The communication, it appears, is not working in a way that's conducive to communicating [the represented person's health needs. … If the family were able to negotiate and compromise about a facility that was considered appropriate and supportive of her high level care needs, our office would absolutely support the family making that decision, but I don't think that that can happen. WP has indicated to me that he ‑ as administrator for [the represented person], he would not support her relocation to the facility that SL had recommended[.] (T:43; 14.05.13)
In the hearing, the Public Advocate confirmed her view that a family member would not be suitable for appointment as a guardian responsible for deciding where the represented person is to live; however, she proposed that consideration be given to either a joint appointment of WP and SL as guardians responsible for treatment decisions, or to an appointment of either SL or WP conditional on the provision of an undertaking that they would contact their siblings weekly or fortnightly.
The Public Advocate set out her view that once the represented person moves to a facility in Perth, there may be an opportunity for communication between family members to improve; however, she notes the longstanding nature of the communication problems within the family.

Views and wishes of represented person

Although the represented person is no longer able to express her wishes, the Tribunal found that 'it was consistent with the reported previous actions of the represented person that SL is involved in decisions about medical treatment and care. The original support of her brothers, albeit on the proviso that she consulted with them, supports this to some extent ...': see [108] of CK.

Written submissions received after hearing

WP filed further written submissions with the Tribunal immediately following the hearing in May 2013, and later in July 2013. These submissions reiterate WP's view that it is in his mother's best interests that he be appointed her guardian rather than the Public Advocate. In respect to SL's opposition to his proposed appointment as guardian, WP says that he has 'no doubt that SL will come around' as she has to his appointment as administrator.
The Public Advocate wrote in July 2013 to advise of recent changes to the represented person's circumstances. In particular, the Tribunal is advised that the represented person moved to a facility in the metropolitan area in early July and that prior to this move, consent was given by the Public Advocate to medication changes as recommended by the represented person's doctor.

The decision on who should be appointed guardian

When appointing a guardian, the Tribunal must be satisfied the person will act in the best interests of the represented person, not be in a position where his or her interests conflict or may conflict with the represented person, and is otherwise suitable to act as guardian (s 44(1) and s 44(2) of the GA Act).
WP is proposing himself as guardian and his appointment is now supported by his brother, RP. The appointment of WP is not, however, supported by SL, the represented person's daughter, whose appointment as limited guardian for treatment decisions was revoked by the Full Tribunal on 26 November 2012. It is the decision of the Full Tribunal to appoint the Public Advocate limited guardian of the represented person that WP seeks to have revoked.
The Full Tribunal found neither SL nor WP to be suitable to be appointed guardian for their mother given the 'fundamental conflict between them making it incapable for them to civilly and meaningfully discuss their mother's medical care' which would preclude 'the medical decision making from being informed by all relevant considerations'.
WP submits that the appointment of the Public Advocate is contrary to his mother's best interests, and his submissions to the Tribunal set out numerous allegations as to the Public Advocate's failure to properly fulfil her obligations as the represented person's guardian.
The question to be addressed by this Tribunal is not, however, the question of whether the Public Advocate is properly performing her duties as guardian. The GA Act is very clear that the Public Advocate is guardian of last resort and other than where she is appointed to act jointly with another person, the Public Advocate can only be appointed if there is no other person who is suitable and willing to act.
WP is willing to act and I accept that he has no conflict of interest which would preclude his appointment. I also accept that WP is a strong advocate for what he believes to be in his mother's best interests; however, it appears that this is, not infrequently, expressed in a manner that is highly critical, combative and accusatory. I accept that WP's communications with his sister are more frequent that previously occurred. I am not satisfied, however, given the ongoing communication problems between WP and SL that were observed in the hearing and characterised by a lack of respect and a significant level of distrust between the parties, that WP would properly consult all family members and fully consider their views as to what may be in the represented person's best interest.
Taking into account the factors in s 44(2) of the GA Act, the Tribunal is not satisfied that WP is suitable for appointment as guardian for treatment or accommodation decisions. It appears evident to the Tribunal that the proceedings, which have involved a significant number of hearings and a considerable amount of time, have not lessened the sense of distrust and conflict between family members. For the reasons given, the appointment of the Public Advocate is confirmed. It remains appropriate that the guardianship order be reviewed at the same time as the review of the administration order.

Order

For these reasons, the Tribunal makes the following orders:
1.The appointment of the Public Advocate as limited guardian is confirmed as follows:
The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia 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 consent to the use of chemical or physical restraints in respect of the represented person and to decide matters incidental thereto.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.This order is to be reviewed by 26 November 2017.

I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS S GILLETT, MEMBER