WS v NSW Trustee and Guardian
[2011] NSWADT 138
•08 June 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: WS v NSW Trustee and Guardian [2011] NSWADT 138 Hearing dates: 24 February 2011 Decision date: 08 June 2011 Jurisdiction: General Division Before: S Leal, Judicial Member Decision: 1. The decision of the Public Guardian dated 9 September 2010 providing consent for ADE to accept an offer of permanent residency at Beaumont Terrace Aged Care Facility is varied as follows: The Public Guardian is to make arrangements for ADE to be accommodated in an accredited aged care facility in Queensland which is within close proximity to the residence of WS and which the Public Guardian deems to be suitable for ADE.
2. The decision of the Public Guardian dated 9 September 2010 providing consent for ADE to accept an offer of permanent residency at Beaumont Terrace Aged Care Facility is to lapse only upon the acceptance by the Public Guardian (or its Queensland equivalent) of a permanent placement for ADE in an accredited aged care facility within close proximity to the residence of WS that the Public Guardian (or its Queensland equivalent) deems to be suitable.
Catchwords: Catchwords: Public Guardian - Accommodation function - dementia - re-location Legislation Cited: Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
Guardianship Regulation 2005Category: Principal judgment Parties: Applicant - WS
Respondent - NSW Trustee and GuardianRepresentation: Applicant - in person
Respondent - Ms C Phang
File Number(s): 103275 Publication restriction: Section 126 of the Administrative Decisions Tribunal Act 1997 applies
REasons for decision
Introduction
ADE is an 80 year old woman currently residing at Beaumont Terrace Aged Care Facility in Tuncurry.
In a Guardianship Order dated 28 April 2010, the Public Guardian was given the authority to make decisions on behalf of ADE in relation to the function of accommodation, namely to determine where ADE may reside. On 28 April 2010, an order was also made by the Guardianship Tribunal revoking the appointment on 1 August 2002 by ADE of her son, ADF, as her enduring guardian. A further order was made on 28 April 2010 by the Guardianship Tribunal that ADE's estate be subject to management under the provisions of the NSW Trustee and Guardian Act 2009 and that the management of ADE's estate be committed to the NSW Trustee. The evidence before the Guardianship Tribunal was that ADE has moderate dementia and has problems with orientation and short-term memory.
On 19 July 2010, the Public Guardian made a decision to accept respite care for ADE at Beaumont Terrace Aged Care Facility with a view to permanency. Prior to this date, ADE had been living at her home together with her son, ADF. The decision to place ADE in respite care was made when it was discovered that ADE had been left alone for long periods of time.
A further decision was made by the Public Guardian on 9 September 2010, this time 'providing consent for ADE to accept an offer of permanent residency at Beaumont Terrace Aged Care Facility in Tuncurry effective 13 September 2010.'
WS, who wishes his mother to be relocated to an aged care facility in Queensland where she will be closer to WS and his family, sought an internal review of the decision to accept an offer of permanent residence at Beaumont Terrace on behalf of ADE.
In requesting an internal review of the decision, WS submitted that he believed that it was in his mother's best long-term interest to relocate to an aged care facility closer to WS and his family. The internal review, completed on 28 September 2010, affirmed the original decision of the Public Guardian.
On 5 November 2010, WS applied to this Tribunal for a review of the internal review decision. In his application, WS claimed that his mother had been denied the right to decide where she wishes to live; that his brother, ADF, had attempted to prevent visits to ADE by family members and that the decision was based on incorrect information, namely that ADF had lived with ADE both recently and in the long term and that she had a social network in the Tuncurry area.
Jurisdiction
Section 80A of the Guardianship Act 1987 ('Guardianship Act') provides that an application may be made to this Tribunal for a review of a decision of the Public Guardian that is made in connection with the exercise of the Public Guardian's functions under the Guardianship Act as a guardian, and is of a class of decision prescribed by the Regulations.
Regulation 17 of the Guardianship Regulations 2005 provides that all decisions of the Public Guardian made in connection with the exercise of its functions are prescribed for the purposes of section 80A of the Guardianship Act. Hence the decision made by the Public Guardian in relation to the accommodation of ADE is a decision in respect of which an application may be made for review to the Tribunal.
Applicants who may apply to the Tribunal under s80A of the Guardianship Act include the protected person, the spouse of that person, a carer, and 'any other person whose interests are, in the opinion of the ADT, adversely affected by the decision' (s80A(2)(d)). I accept that WS is ADE's son who has remained in regular contact with her. The decision to accept a permanent residency at Beaumont Terrace in Tuncurry on behalf of ADE will make it harder for WS to visit his mother than were she to be relocated to an aged care facility in Queensland where WS lives. I also accept that WS has concerns that his brother, ADF, has tried to prevent ADE from having access to family members apart from himself. On that basis, I am satisfied that WS's interests are adversely affected by the Public Guardian's decision and that he is therefore able to apply to this Tribunal for review of the Public Guardian's decision.
In conducting the review, it is the role of this Tribunal to conduct a merits review to determine whether the Public Guardian's decision that ADE be accommodated on a permanent basis at Beaumont Terrace Aged Care Facility is the correct and preferable one having regard to the material before the Tribunal including any relevant factual material and any applicable written or unwritten law. (section 63 of the Administrative Decisions Tribunal Act 1997). In making its decision, the Tribunal is to have regard to the principles set out in section 4 of the Guardianship Act.
Evidence
In making the original decision that ADE should become a permanent resident at Beaumont Terrace Aged Care Facility, the Public Guardian gave paramount consideration to the interests of ADE and recognised the importance of preserving ADE's family relationships. In reaching its decision, the Public Guardian took into account the medical views provided in relation to ADE, including Dr McClean's view that due to their fluctuation, ADE's views in this matter should be a minor consideration. The Public Guardian further took into account the fact that:
- ADE had chosen to live in the Foster/Tuncurry area for many years, choosing to remain there after the death of her husband;
- to the Public Guardian's knowledge, ADE had never considered relocating to Queensland;
- following WS's relocation to Queensland six years earlier, ADE sees WS less face-to-face but stays in regular telephone contact with him and has been able to spend holidays with him and his family in Queensland;
- ADE enjoys attending bingo on Fridays and will be able to continue to do so as a permanent resident of Beaumont Terraces;
- ADE has developed friendships with other residents in Beaumont Terrace and is able to receive visits from her former neighbour, Andree.
WS wrote a lengthy letter to the Public Guardian in support of his request for an internal review. This letter, dated 20 September 2010, has been included by WS in the documents provided to this Tribunal. Relevantly, WS made the following submissions in his letter:
- ADE's wishes were being ignored with her dementia being used as an excuse. According to WS, ADE indicated that her first preference was to live in her own home and her second preference was to relocate to Queensland. These preferences have, according to WS, been expressed by ADE to WS, to Dr McClean and to the Director of Nursing at Beaumont Terrace;
- WS will be able to ensure that ADE will have a long-term stable and familiar environment, with regular visits from WS and his family, including his young daughter;
- ADE was first placed in respite care on 19 July 2010 due to abuse and neglect by ADF, who was her carer;
- ADE only has one acquaintance, Andree, living in Tuncurry. She has telephone contact with another friend, Lisa, who lives in Gosford;
- Upon the sale of ADE's house, WS feels that it is unlikely that his brother, ADF, will continue to live in Tuncurry. This would, according to WS, leave ADE alone in Tuncurry;
- WS will find it difficult to visit ADE in Tuncurry given that his ex-wife, with whom he has an acrimonious relationship, also lives in Tuncurry;
- WS owns his own home on acreage 'with a daughter who loves her Grandma very much and goes to school in the same town that we had already found a place in an Aged Care Facility. We are both employed and work from home so have ample time and resources to offer ADE what she needs in her final years.'
- If ADE has settled into Beaumont Terrace, there is no reason she will not settle equally well in an Aged Care Facility in Queensland. This is especially so when all the confusion and angst of where she is living disappears. She is confused about why she cannot just move if she wishes;
- If ADE is allowed to relocate she will also have the support of the family of WS's wife, ADG. According to WS, ADE gets on very well with ADG's retired parents, Marie and Gary, her sister, Kathy, a Disability Carer, and her family. ADE is considered to be a member of Carolyn Robin's family who all live close to WS and Carolyn Robins.
Contained on the Tribunal file is a chronology of communication between WS and ADF in relation to ADE. The chronology documents an increasingly acrimonious relationship between the brothers and notes that ADE spent Christmas at WS' home in Queensland in 2009.
In his report for ADE dated 3 September 2010, Dr William McClean, Consultant Physician in Geriatric Medicine writes that ADE
is easily influenced and tends to fluctuate in her ideas. When I spoke to her she was indicating that she would like to move to Queensland to be with her family and see the grandchildren. However she did not remember how many grandchildren there were, their ages or names. [ADE] has a routine in the Aged Care facility and is settled in that routine. It's my opinion that her indicating a desire to be in Queensland is not based on a realistic thought process and that her views in this matter should be a minor consideration in making the decision regarding her placement.
ADE's general practitioner, Dr Islam, expressed the view that she requires 24 hour care and that due to her advancing dementia, would be better off in a familiar environment where she can continue to see familiar people and participate in familiar routines as much as possible. This includes seeing her son ADF regularly, attending bingo on Fridays, having her friends visit, remaining in the same area and retaining the same medical practitioner.
In a letter to the Public Guardian dated 23 August 2010, Ms Vikki Morrison, Clinical Nurse Consultant Psychogeriatric, supports ADE remaining at Beaumont Terrace and becoming a permanent resident there. According to Ms Morrison:
[ADE] has lived in this area for many years and during that time has gathered a social network that she still relates to. She easily recalled that she goes to Bingo weekly with [ADF] and she enjoys meeting with her friends there.
[ADE] has a diagnosis of Dementia and as such she has significant memory problems. She has problems recalling recent memories and difficulty retaining new information so her older or long term memories become more important and more easily recalled.
People with dementia has a greater need of routine and structure in their day to cope with their once familiar world becoming familiar. At this stage of her dementia, it is important that [ADE]'s life has familiarity and her current accommodation has become so. Her dementia will progress to a point where familiarity is less important and change less catastrophic. Her accommodation needs may need reviewing at that time.
In affirming the original decision of the Public Guardian, the internal reviewer took into consideration the fact that ADE had chosen to live in the Foster/Tuncurry area for many years and had given no indication of having considered relocating to Queensland. She also considered ADE's relationship with her son, ADF, and the fact that her son, WS, had relocated to Queensland six years earlier, since when he had maintained irregular face to face contact but regular telephone contact with his mother. The internal reviewer also noted that ADF takes his mother to bingo on a weekly basis, an activity she enjoys, and that ADE has developed friendships at Beaumont Terrace, both with staff and other residents.
In affirming the original decision of the Public Guardian, the internal reviewer noted Dr McClean's view that 'ADE has fluctuating views, and that her views in this matter should be a minor consideration.' In conclusion, the internal reviewer found that 'It is the Public Guardian's view that the above available facts indicate that ADE, prior to her dementia, chose to reside in the Tuncurry area. It is also the Public Guardian's view that this indicates her acceptance of the limited physical contact she would have with her son,[WS] as a consequence of his move to Queensland. The Public Guardian has no information to indicate ADE expressed a desire to reside in Queensland prior to the onset of her dementia. It is not the role of the Public Guardian to justify reasons for ADE's previous actions, however it is apparent she had chosen to spend the latter part of her life in Tuncurry which included being with or near her son, Michael. In keeping with the general principles of the Guardianship Act, the welfare and interests of ADE have been given paramount consideration and the importance of preserving the family relationships of ADE have been recognised.
At the request of WS, a comprehensive geriatric assessment was prepared for ADE on 14 January 2001 by Associate Professor David Fonda, Consultant Geriatrician and Rehabilitation Specialist. Professor Fonda made the following assessment:
I agree with Dr McClean that [ADE] is impressionable and could be easily influenced in her decision making. What appears to be true is that in the month that she has been on the Sunshine Coast, she has enjoyed immensely being with her family and particularly her granddaughter (which she articulated on a number of occasions) who gives her enormous pleasure and joy.
It is my belief that she would settle in easily and fairly quickly into another accommodation if she were to relocate to the Sunshine Coast. I feel therefore that a decision by her Guardian whether to relocate should not be based on whether she currently is settled in her current accommodation in Tuncurry, as I expect she will settle well if she were to relocate close to her caring and loving family environment.
If it can be shown that the care and love and support that she would receive in Tuncurry from her son, [ADF], is likely to be greater than what she would receive from her son [WS], his wife [ADG], then that would be the major consideration in her staying in Tuncurry. Otherwise, I believe her best interests would be served by her relocating at this stage, while she still has a very sociable and engaging manner, to the Sunshine Coast.
Whilst I agree with Dr McClean that she can be influenced in the decision she makes, I think it is particularly relevant to take the interests and involvement of her family as a major consideration at this point in time. I could see no potential vested interest that [WS] and his family would gain by her relocating to the Sunshine Coast, as her financial affairs are not held by them.
Contained on file is a statutory declaration by Marie Robins, mother-in-law to WS, dated 2 February 2011. In her declaration, Ms Robins states, in part:
During her holiday in Queensland, [ADE] Kreutz visited our home on several occasions for family gathering. She told me about the home where she is living, - including her room, the meals etc. She also told me that there is a lady at the home who calls out to her all the time. The lady calls her a Nazi. She said I try to show that it doesn't hurt me but it does very much. She said the other ladies tell her not to take any notice but she gets very upset about it.
Also contained on file is a statutory declaration by WS' wife, ADG. In part, her declaration states as follows:
ADE, my partner's mother, arrived at my house on 16 December 2010 for a month long holiday. She was carrying a small red bag of clothes packed for her by the nurses at Beaumont Terrace Aged care containing...three pairs of shoes and a pair of slippers. [ADE] was unable to fit her feet into any of the shoes. I purchased a new pair of shoes that she was able to wear. I noticed [ADE] was having problems walking in her slippers so I inspected them. The soles were completely worn through in the ball of the feet and heels. I also inspected [ADE] s feet and toe nails and noticed the nails were exceedingly long and her feet were covered in sores. This was causing her considerable discomfort as the sores were from the ill-fitting shoes.
In support of her statutory declaration, ADG annexed a photograph said to be a photograph of ADE' feet and her old slippers. The feet photographed have long, unclipped toenails and are dotted with red marks.
A further document provides a summary of expenses for ADE's trip to Queensland from 16 December 2010 to 16 January 2011 which, according to WS, totalled $1361.54 (including WS's expenses in accompanying ADE to Queensland.)
Tribunal hearing
On 24 February 2011, this Tribunal held a hearing into this matter. Ms Phang appeared for the Public Guardian while WS was self-represented. Neither ADE nor ADF participated in the hearing.
The original decision-maker for the Public Guardian, Ms Patricia Davidson, gave evidence before the Tribunal. Ms Davidson confirmed that the Public Guardian retains the accommodation function in relation to ADE. She also confirmed that ADE travelled to Queensland to stay with WS from 16 December 2010 to 16 January 2011 and that the trip went well with no re-settlement issues for ADE on her return. In managing the accommodation function held by the Public Guardian for ADE, Ms Davidson told the Tribunal that ADE is visited on a three monthly basis. She denied that there were any problems between ADE and other residents and stated that ADE had made friends with a group of female residents at Beaumont Terrace. She confirmed that ADF continues to visit his mother at least once a week and that a former neighbour of ADE, Andree Hemingway, visits her on a fortnightly basis. She also gave evidence that ADE receives some visits from her granddaughter who lives in Newcastle. Ms Davidson conceded under cross examination that ADF had advised her of the visits from ADE's granddaughter and that she hadn't spoken to the granddaughter directly. She agreed that ADF is no longer taking his mother to bingo on Fridays 'because he cannot afford for them both to go in.'
Ms Davidson confirmed that the NSW Trustee, who is ADE's financial management, has begun steps to sell ADE's house. ADF has told the Public Guardian of his intention to rent in the Foster/Tuncurry area to enable him to continue visiting his mother. Ms Davidson advised that ADF is not currently employed.
In cross examination, WS put to Ms Davidson that his mother had been placed into care because ADF had not been able to cope with looking after her. Ms Davidson described it as 'carer's stress'.
Ms Davidson confirmed that she had received a copy of ADG's statutory declaration in relation to the state of ADE's feet and had raised the issue with Beaumont Terrace but had not heard back from the facility about it. She noted that Beaumont Terrace is an accredited aged care facility.
In deciding on the suitability of Beaumont Terrace as an aged care facility for ADE, Ms Davidson advised that the Public Guardian had taken into consideration the fact that the facility was accredited and affordable and would enable ADE to keep in contact with her social network. In making its decision, the Public Guardian also took into consideration ADE's wishes. Ms Davidson agreed that in light of the Christmas holiday taken to visit WS, ADE had proved herself to be adaptable.
WS put to Ms Davidson that in packing for ADE, staff at Beaumont Terrace had packed insufficient clothes and quantities of medication to last during ADE's month long visit to Queensland from December 2010. Ms Davidson was unable to comment on this.
In his own evidence before the Tribunal, WS stated that he had sought a review in this matter because 'the decision is detriment to my mother and doesn't take into account the abuse by my brother, the benefits of a larger family and the financial implications of the situation.'
WS told the Tribunal that his mother had lived with ADF until 2009. During this time, WS stated that his mother had often been left alone and as a result of this, had been placed in Alma Place Aged Care Facility. WS was happy with the care his mother had received at this facility.
Because of his concerns at how his brother was using their mother's money, by means of the power of attorney he held for her, WS sought an order from the Guardianship Tribunal that his mother's estate be subject to financial management. The Guardianship Tribunal appointed the NSW Trustee as ADE's financial manager on 9 May 2010.
WS spoke of his concern at his brother's aggressive and abusive treatment of their mother while ADE and her son, ADF , were living together. In support of his evidence, WS referred to a file note taken by Ms Wendy Kemp of the Office of the Public Guardian on 19 July 2010 which states:
Police called over weekend. [WS] advised that he had been speaking to his mother on the telephone on Saturday as it was [ADE]'s 80th birthday. [ADF] l returned home and Inge became frightened and hung up the phone. Subsequent calls to [ADE] resulted in [ADE] crying and [WS] overhearing [ADF] yelling and screaming at [ADE] in the background. [WS] telephoned Forster police who attended and calmed the situation down.
[WS] wants [the Public Guardian] reconsider [ADE] being at home and organise residential placement for her. Further, [WS] stated he and [ADG] would consider [ADE] moving up to QLD to be closer to them.
WS also referred to a further file note dated 18 August 2010 by Ms Kemp which states in part '[ADE] also acknowledged, and spoke freely about, the fact that [ADF] loses his temper and yells at her. She agreed that this was not appropriate, but continued to blame herself for [ADF]'s temper, stating that she forgets things and must be hard to live with.' A further file note by Ms Kemp dated 8 September 2010 states that 'ADE provided a view to the Public Guardian that she wished to return to her home in Tuncurry. When reminded that this was not an option, ADE provided a view that she wished to relocate to Queensland to live closer to [WS]. She again stated that she has made this decision because [ADF] does not visit her often and she is left on her own in her home.'
WS told the Tribunal that he loves his brother, ADF - 'he has problems and I've tried to help him.' He told the Tribunal that his brother has been unemployed for most of his life and that their mother had helped to set him up in a lawn mowing business that was unsuccessful. WS told the Tribunal that his mother would have moved to Queensland had ADF stayed there. Instead, when it 'became too much', his brother returned to NSW to live with their mother.
WS gave evidence that he intends to make peace with his brother. Should their mother be relocated to Queensland, he undertook to pay for his brother's airfares to enable him to visit their mother.
WS told the Tribunal that both he and his wife do a lot of their work from home which would give them both the flexibility to take ADE on regular outings including bingo. He also spoke of being able to take his mother to stay with him and his family on weekends and holidays. Given that WS and his family are financially stable, they would make sure that ADE always has money available to buy things she likes to have.
WS also gave evidence that contrary to his brother's statements to the Public Guardian, WS' older daughters from his first marriage don't visit their grandmother at Beaumont Terrace. This is due to a conflict between WS' family and his former wife. It is this conflict that also makes it difficult for WS to visit Tuncurry.
WS told the Tribunal that he has information about aged care facilities that are within 30 -40km of WS' rural property. His preference would be for his mother to move to an aged care facility in Keroy, where his daughter goes to school. He told the Tribunal that he had no intention of moving from his property in Queensland.
WS spoke of his regret at not being aware that his mother had taken a reverse mortgage out against her property and that it was his intention to 'properly plan for the future for my mother and to work with the Public Guardian and the Financial Manager to look after her well-being.' He was not confident that his brother would be able to do that. He would like his mother to be surrounded by family: by him, his wife and their daughter in addition to his wife's immediate and extended family. He acknowledged his mother's connection to Tuncurry, in particular the fact that WS' and ADF's father is buried there and undertook that his mother also be buried with him.
Ms Phang, for the Public Guardian, submitted that, looking at ADE's previous lifestyle choices, the Tribunal should find that she had made a decision to remain in Tuncurry: her family home is there, her social contacts are there and her husband is buried there. She submitted that ADF is a regular visitor to his mother and that, apart from suffering carer stress, there is no evidence of any problems caused by him.
Findings and reasons
For the reasons that follow, I am varying the decision of the Public Guardian on 9 September 2010 providing consent for ADE to accept an offer of permanent residency at Beaumont Terrace Aged Care Facility in Tuncurry effective 13 September 2010. This decision is to be varied as follows: The Public Guardian is to make arrangements for ADE to be accommodated in an accredited aged care facility in Queensland which is within close proximity to the residence of WS and which the Public Guardian deems to be suitable for ADE.
On the basis of the decisions made by the Guardianship Tribunal on 28 April 2010 and the reports of Dr McClean and Associate Professor Fonda, I am satisfied that ADE suffers from moderate dementia (Alzheimer's' disease).
The Public Guardian has conceded and I accordingly accept that adaptability is no longer a concern for ADE. On this basis and on the basis of the report of Associate Professor Fonda dated 14 January 2011, I find that a move by ADE to a suitable aged care facility close to WS and his family would not be detrimental to ADE's well-being.
I have considered the statutory declaration and photographs provided by ADG in relation to the state of ADE's feet when she left Beaumont Terrace in December 2010 to visit WS and his family. I accept that this evidence is consistent with ADG's view that ADE's feet had not been well cared for and that she had been wearing ill-fitting and worn shoes. No evidence was provided to rebut these views. Ms Davidson's evidence was that the issue had been raised with Beaumont Terrace but that no response had been received and that a representative visits ADE on a three monthly basis to check her welfare.
On the evidence before me, I find that despite regular visits by ADF and monitoring by the NSW Public Guardian, ADE's feet had not been adequately treated and she had been left to wear broken slippers. I accept the opinion of Associate Professor Fonda that although he has 'no information to suggest that [ADE's] current care in residential care is inadequate...it should be noted that in the absence of family being there to regularly monitor her, it is possible that things could get missed.' On the evidence before me, I find that this is one instance of 'things getting missed', namely the care of ADE's feet.
I accept that ADF has been and continues to be a regular visit for his mother. On the basis of Ms Davidson's evidence, I find, however, that Bingo, the weekly activity particularly enjoyed by ADE and undertaken with ADF, has now stopped. On the evidence before me, I accept that the cessation of bingo has been for financial reasons. I accept the evidence of WS that, were his mother to move to an aged care facility close to him and his family, either he or his wife would regularly accompany ADE to a local Bingo session. I accept the evidence of WS that both he and his wife work predominantly from home and could, therefore, take ADE to Bingo on a regular basis. I accept that WS and his wife have the financial security to ensure that any costs related to Bingo could be met by them without recourse to the NSW Trustee.
I accept that ADE has a close relationship with her son, ADF, and that a decision for her to move to Queensland to be closer to WS will inevitably mean less contact with ADF. In considering this, I have been guided by the opinion of Associate Professor Fonda, namely that 'if it can be shown that the care and love [ADE] would receive in Tuncurry from her son, [ADF], is likely to be greater than what she would receive from her son, [WS], his wife, [ADG] and their daughter, then that would be the major consideration in her staying in Tuncurry. Otherwise, I believe her best interests would be served by her relocating at this stage, while she still has very sociable and engaging manner, to the Sunshine Coast.'
As ADF did not participate in the Tribunal hearing, I have not heard his views on this matter. On the evidence before me, I accept that ADF regularly visits his mother and that they have a close relationship. I accept, however, that he no longer takes his mother to Bingo and that, according to the Public Guardian, proceedings are underway to sell his mother's house where ADF now lives. Although I note the evidence from Ms Davidson that ADF has expressed an intention to continue living in the Forster/Tuncurry area, I am concerned that in light of ADF's apparent financial constraints, this may not be possible and may impact on the regularity of his visits to his mother.
I note the submissions of the Public Guardian that ADE has previously chosen to remain in the Forster/Tuncurry area and that weight should be given to this in deciding where she should now be accommodated. I accept that ADE has previously stayed in this area where she has lived with ADF and that a former neighbour, Andree Hemingway visits her at Beaumont Terrace. I do not accept, however, that ADE's familiarity with the Tuncurry area should outweigh the physical, emotional and financial care that can be offered to her by WS and his family in Queensland. The evidence from both WS and Ms Davidson is that ADE benefited from time with WS and his family during her visit there from December 2010 to January 2011. The advantage of ADE being accommodated in an aged care facility in close proximity to WS and his family is that she will be surrounded by a large social network including the family of ADG. As appropriate, she will also be able to stay with WS and his family on their rural property on weekends and holidays. WS and his family will also be in a position to more closely monitor the care being given to ADE by the relevant aged care facility.
On the basis of the evidence set out above, I find that it would be in ADE's best interests to relocate to an accredited aged care facility in Queensland that is in close proximity to WS and his family, such as to enable regular visits to ADE to ensure she has company and her care is well monitored.
I accept that such a re-location will mean that Mrs K will have less contact with her son, ADF. I note that WS has undertaken to financially assist his brother, ADF, to travel to Queensland to visit ADE. This undertaking has factored in my decision and I expect that WS will make the appropriate arrangements in this regard to ensure that ADE retains regular contact, both in person and by telephone, with ADF.
Contrary to WS' suggestion and in light of the views of the Public Guardian that ADE required 24 hour care, I find that is would be in ADE's best interests to be relocated to Queensland only upon a position in an appropriate aged care facility becoming available, rather than ADE being first relocated to the home of WS and family pending the availability of such a place.
For the reasons set out above, I am satisfied that it is the correct and preferable decision that once a placement becomes available that the NSW Public Guardian (or its Queensland equivalent) deems suitable, ADE be relocated from Beaumont Terrace Aged Care Facility to an accredited aged care facility in Queensland, in close proximity to her son, WS.
Accordingly, I vary the decision of the Public Guardian dated 9 September 2010 providing consent for ADE to accept an offer of permanent residency at Beaumont Terrace Aged Care Facility as follows: The Public Guardian is to make arrangements for ADE to be accommodated in an accredited aged care facility in Queensland which is within close proximity to the residence of WS and which the Public Guardian deems to be suitable for ADE. I have made this decision having considered all the evidence available to me and in light of the principles set out in s4 of the Guardianship Act.
Orders
The decision of the Public Guardian dated 9 September 2010 providing consent for ADE to accept an offer of permanent residency at Beaumont Terrace Aged Care Facility is varied as follows:
The Public Guardian is to make arrangements for ADE to be accommodated in an accredited aged care facility in Queensland which is within close proximity to the residence of WS and which the Public Guardian deems to be suitable for ADE.
The decision of the Public Guardian dated 9 September 2010 providing consent for ADE to accept an offer of permanent residency at Beaumont Terrace Aged Care Facility is to lapse only upon the acceptance by the Public Guardian (or its Queensland equivalent) of a permanent placement for ADE in an accredited aged care facility within close proximity to the residence of WS that the Public Guardian (or its Queensland equivalent) deems to be suitable.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
Decision last updated: 08 June 2011
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