DGE v Public Guardian

Material before the Tribunal

1. There was a large bulk of material relied on by the parties: some filed very late, including at the hearing. It included: 1. submissions/statement from DGE filed 15 January 2018 (16 pages with 6 pages of attachments); 2. submissions from DGT filed 15 January 2018 (4 pages); 3. statutory declaration of DGE declared 31 January 2018 with attached photographs showing the environment at the aged care facility and at the retirement village, and a document showing monthly activities at the retirement village from December 2017; 4. statement of DGT dated 30 January 2018 (4 pages); 5. statutory declaration of DGU declared 29 January 2018. (52 pages with annexures); 6. submission and bundle of documents filed by DGU on 15 January 2018 (46 pages); 7. bundle of photographs of the mother at the aged care facility produced by DGU; 8. affidavit the Residential Services Manager of the aged care facility ('the ACF Manager') dated 31 January 2018 - filed by the Public Guardian; 9. statement of the Complex Care Co-ordinator (the Co-ordinator) from the at home care service, which it was proposed would provide 24-hour care for the mother at the residential village, dated 31 December 2018. 10. uncompleted form entitled "Key to me" tendered in the course the ACF Manager's evidence which set out questions asked of resident's family members, by the aged care facility, in order to know and personalise the care offered to individuals; 11. respondent's submissions filed 25 January 2018; 12. s 58 documents filed by the Respondent (401 pages).
2. It is not possible in these reasons to deal with every point and contention raised by the parties in their evidence and submissions. Indeed, much of the material filed deals with disputes about the past, which are only of marginal relevance and do not require determination in order to decide this matter. There is little point in revisiting the vast bulk of those communications, other than to express dismay at the vitriol, hostility and suspicion found in some of them.
3. I have sought to address the issues of substance.
4. During the hearing I heard sworn evidence from DGE, DGT and DGU, and from the Coordinator and the ACF Manager.

The proposal that the mother return to live in her unit at the retirement village

1. Essentially, the proposal put by DGE and DGT, involves the mother returning to live in her own home unit at the retirement village, with 24-hour live in support. That support would be provided by two workers from the home care service, who would each work a three-day shift, in which they would sleep over at the unit, thereby provided six days full time care each week. The seventh day of cover would be provided by DGE. The carers provided by the home care service have a Certificate 3 or 4 in aged care, but are not qualified nurses. DGE works as a carer for the home care service.
2. The retirement village is agreed to be nicely located, with beautiful gardens and close to shops, restaurants, libraries and other places of interest. The mother's unit has a view. The village has communal areas, including dining areas, and offers many activities to residents. There is disagreement between the daughters as to how much the mother took advantage of those facilities in her time living there, including: 1. how often the mother walked in the gardens; 2. how many friends she had at the village; 3. her level of participation in group activities; 4. how often she took advantage of the meals offered at the village; 5. how frequently she painted and/or sewed and embroidered while living there; and 6. how often she went out. It is not necessary for me to resolve all those differences, in order to determine this matter.
3. The major point to be made is that DGE and DGT say that returning to live at the retirement village would enable their mother, with the assistance of a paid carer or visiting family members, to enjoy all of the benefits that the village offers, in an environment which would offer her greater freedom than is available at the aged care facility.
4. The care coordinator from the home care service("the Coordinator"), gave evidence of a meeting she had with DGE, DGT and the mothers at the unit. She described the mother as being "relaxed and happy." The apartment is a one-bedroom apartment, consisting of the bedroom, a kitchen, dining room and lounge, with a bay window. The Coordinator said a divider would have to be put into the lounge to create a private, single-bed set up for the carers.
5. Carers are in attendance twenty-four hours a day for their three-day shifts. During that time, they sleep over and are entitled to breaks. Clients having visitors is encouraged, because it provides time in which the carers can take a break. The Coordinator explained that the carers routine is based on the client's routine, with clients being encouraged to be as independent as possible. Carers seek to give clients space and time, so that that they do not feel intruded upon. Flexibility is also offered to clients, with carers able to take them out for walks or outings as they wish. With the effluxion of time, the at home care service can partner with a palliative care team, if required.
6. The Coordinator acknowledged that some clients feel trapped and to be losing control, or demonstrate behaviours which interfere with their care. The home care service considers that such behaviours reflect their inherent needs, and seeks to address those behaviours and feelings of loss of control using the Montessori method. Carers try to develop a personal relationship with clients.
7. The Coordinator said that she had spoken with the mother when they met at the unit in the presence of DGE and DGT. The mother was not agitated and told the Coordinator that she did not want to live in a nursing home. She did not say that she was then living in a nursing home. When asked what would happen if the mother wandered, she said that, "we would have to look at doors" and "aids to protect against dangers."
8. In her statement the Coordinator described the following discussion that occurred during that meeting: 3. [DGE] asked [the mother] something to the effect of where would she prefer to live and [the mother] replied something to the effect that she wanted to stay in her unit and she never wanted to live in a Nursing Home. [The mother] said words to the effect that she had a beautiful place to live there at [the retirement village] with all her things around her and everything she needed to live comfortably.
9. There was no clear evidence before me of the cost of provision of care from the at home care service, or of maintaining the mother and a carer living in the unit (together with the costs associated with owning and maintaining it). The Coordinator did say that government funding should pay the cost of one day of such care a week, with the balance to be paid by the mother. She also explained, in response to a question from DGU, that two "get ups" in the middle of the night are allowed for in the costs of care, indicating that more than two, on a regular basis, would incur greater costs.
10. A letter from the mother's solicitor ("the Attorney") indicated that paying for her care in the unit would consume her assets at a greater rate than care in the aged care facility. In an email dated 30 June 2017 to the Public Guardian the Attorney indicated that the home care services fees appeared to be $3,394.40 per week, less a subsidy of $700, and commented that with these fees "[the mother's] funds would soon be depleted."

The situation at the aged care facility

1. DGU proposed to the Public Guardian that her mother remain living at the aged care facility. It is a well-known facility, where the mother has a small room of her own, with facilities. It has a window which overlooks a part of the garden and a fence.
2. In his evidence the residential services manager of the aged care facility, said the mother could move to a larger room at the facility if one became available and the necessary increase in refundable accommodation bond was paid. He said that the mother had been told that she was free to paint on the porch, if she wished to do so.
3. The mother's room is in the general section of the aged care facility, not the dementia specific part of the facility. She is free to wander around the facility, but cannot leave it. How much advantage she takes of this is unclear given that she still has to rely on a walker or a stick to get around. There is 24-hour nursing care available at the aged care facility, with staff awake and active at all times.
4. In a letter dated 24 January annexed to the ACF Manager's statement, the Acting Clinical Care Manager, wrote: Over the last month, Dr Wilton has visited [the mother] 3 times at [the aged care facility]. Outside these visits, the on-duty RN would call Dr Wilton with any concerns relating to [the mother's] care. [The mother] attends hydrotherapy once a week which is 30-40 minutes per session. Our in-house physiotherapist attends to [the mother] for therapeutic massage 4 times a week for 20 minutes per session. Heat pack therapy sessions are once a week for 20 minutes per session. Care staff take [the mother] for daily walks along the corridors at [the aged care facility]. Staff ask [the mother] where she would like to sit for her meals as there is a choice of levels for [the mother] to choose. This allows [the mother] to choose which residents she would like to dine with. Staff then escort [the mother] back to her suite or to watch and chat with other residents. During the day, staff assist [the mother] with all her toileting, showering and daily hygiene. [The mother] also has the choice to attend the in-house hairdresser on Tuesday and Thursday should she so wish. Night duty staff check [the mother] every 2 hours during the evening along with the room in [sic]ensures [her] safety. There is also a call button which the mother] can access during the day or night whilst in her suit should she require any assistance. Each month, staff changed the activity calendar in [the mother's] room and goes through with her to let her decide which activities she prefers to attend. Staff also remind her in the morning if she has an activity to attend on the day, and escort her to the activity and escort her back when it is finished. [The mother] enjoyed the activities and interacted well with other residents.
5. Both DGU and DGE visit their mother regularly at the aged care facility. DGT is a less frequent visitor because of her country location.
6. The Attorney noted in an email to the Public Guardian that the aged care facility is very expensive, especially because the Refundable Accommodation Deposit (RAD) of $936,000 is unpaid, and interest is being paid on it at a rate of $5.76% ($53,936.60 a year). The daily accommodation payment is $164.19. The Attorney was anxious for an accommodation decision to be made so that he could work out how to fund it, most likely by the sale of property, including the unit at the retirement village.

The mother, her health, and her views (as expressed to people other than her daughters)

1. The mother is a 90-year-old woman. She has been a widow since 1996. It is apparent that she has lived a full and vibrant life, and has for many years maintained wide interests, including a love of painting, art, sewing, embroidery and gardening.
2. The mother dementia. Dr Ahmed, Geriatrician, characterised this, in her report of 14 December 2016 as "moderate dementia, predominantly in the Alzheimer's disease pattern."
3. At that time Dr Ahmed was aware of the mother's circumstances at the retirement village, but recommended that she be placed in high level residential care. She noted that the mother, as a result of her Alzheimer's disease, had been experiencing a number of difficulties at home in the retirement village, including leaving the stove on with a packet of cereal on top, with the result that the stove had to be disabled for safety reasons. The mother was also making distressed calls to her daughters regarding matters that were long passed, and was sleeping a lot, including 2-hour afternoon naps.
4. In discussions with the Public Guardian the manager of the retirement village advised that, when living at the village, the mother usually stayed "mainly in her unit", rather than the common areas. In the period before she moved to the aged care facility, her short-term memory had deteriorated, and she was unable to recall discussions. Occasionally, she would become disoriented to place and require an escort back to her unit.
5. Dr Ahmed reviewed the mother on 10 May 2017, while she was recovering from her hip injury and had returned to the aged care facility. She made no recommendation regarding a change to her care arrangements.
6. In a phone call with the Public Guardian's officer on 27 July 2017 Dr Ahmed stated that the mother requires "high level 24-hour care" and that "her care need will likely increase." While both proposals for her ongoing care could meet her needs, whether a move would cause her distress was yet to be seen. "Any person with dementia a [sic] will experience a level of disruption and a period of adjustment, ultimately the person will settle."
7. Dr Wilton, was the mother's GP at the retirement village, before she moved to the aged care facility. In a letter, dated 13 August 2017, to the Public Guardian he wrote: [The mother] managed to successfully live in the retirement village for the 2 years I cared for her. During this time she had gradually declining cognition. She had mild dementia of either Alzheimer's or vascular form from the outset which was the reason that she decided to move into the retirement village. As she became more frail and forgetful she took on additional services at home that came each clay to assist her with food preparation and. general care should she require it. She remained happy throughout all this time and at no time became agitated. She enjoyed the additional care provided by carers after they gained her trust who she then got to know and enjoyed their companionship. [The mother] was aware she was becoming frail and forgetful but had minimal insight about her illness and expected that she would always be able to be as bright and active as previously. She found her mental and physical frailty distressing but continued to wish to remain independent all the time I knew her. She was always a very independent lady and her greatest fear was that she would lose this independence. I discussed her ongoing needs on many occasions and she always was resistant to the idea of placement and wished that she could be cared for as long as possible in the retirement village.
8. After she moved to the aged care facility the mother was cared for by Dr Walker for some time, before he became embroiled in the conflict and ultimately withdrew from treating her. In an email to the Public Guardian dated 21 July 2017 he wrote: Shortly after [the mother's] arrival at [the aged care facility], she accidentally fell in the bathroom and sustained a fractured hip. She was promptly transferred to hospital and the hip was surgically repaired. [The mother's] already compromised cognition was significantly worsened in the weeks following the injury and anaesthesia. On the advice of Dr Ahmed, it was decided there would be no advantage sending [the mother] to a rehab hospital, and she returned to [the aged care facility] where she received in-house physio and rehab, as well as high level care and support. Regrettably, at this point I found myself in the middle of an extraordinary family dispute between [the mother's] three daughters. In particular, [her] daughter [DGE] - who apparently has some experience as a care worker in aged care - has relentlessly agitated against her mum staying in [the aged care facility] and repeatedly sought to defy and undermine the expressed wishes of her mother, as well as the decisions of [DGU], who at the time was the nominated Enduring Guardian. Despite my attempts to maintain and demonstrate professional independence and impartiality, the fact that my opinion was that [the mother] should not be moved from [the aged care facility] resulted in my receiving innumerable accusatory and hostile emails from [DGE] (as well as being ccd into many more angry email exchanges between the sisters, and emails from the sisters to any and all involved parties). For a period of time after [the mother's] return to [the aged care facility], she manifested symptoms of clinical depression - with loss of interest, low energy and loss of appetite. With the approval of her then Guardian, [DGU]. we instituted a trial of a very low dose of antidepressant medication. There was a noticeable improvement in [the mother's] mood. She engaged in the rehab program and regained her appetite. Frankly, she made an excellent recovery, as confirmed by the opinion of the treating orthopaedic surgeon Dr Ruff, who [the mother] saw as an outpatient on several occasions. In early April, [DGE] "discovered" that her mother was on the antidepressant and a further stream of accusatory emails followed. It was agreed with [DGU] that, given the improvement achieved, and [the mother's] recovery, it would he reasonable to wean [the mother] back off the medication. This was undertaken over a few weeks with no problems, and no reversion to the previous manifestation of low mood. In mid-May, [the mother] was reviewed by Dr Ahmed (just prior to the Guardianship Tribunal hearing). With Dr Ahmed's permission I attach a copy of her letter back to him. You will note there was no mention of any question of returning [the mother] to lower level care. [The mother] currently remains mobile around the facility, is gaining weight from the combined effect of her healthier appetite and diet, and she evidently enjoys the degree of independence that [the aged care facility] offers. She has the opportunity to engage in social activities, including meals in a common dining area, but can retreat to her room when she likes to rest. [The mother] has told me on numerous occasions - and I have regularly documented this in her notes - that she is happy at [the aged care facility] and does not want to move - I have no reason to disbelieve that this is a genuine expression of her wishes. [The mother] has also told me that at times she feels bullied by her daughters.
9. In a progress note written on 26 August 2017, after the Public Guardian had made the decision not to move the mother to the retirement village, Dr Walker noted that the mother was unsettled, having recently been taken on a visit to the retirement village: She fluctuated in commenting how much she enjoys her place at [the aged care facility] to how she likes the "loveliness" of [the retirement village], to how she would never like someone living with her and how she likes the independence of her residence at [the aged care facility] since she can retreat to her room and keep to herself whenever she likes.
10. In those progress notes Dr Walker recorded that he had discussed with the mother how some of her daughter's thought she would be living at the retirement village. She commented that they chose books for her that she did not like. While they were "special" to her she did not want them "making decisions for me." Dr Walker noted his view that the mother was incapable of making decisions concerning where she should live, and that the daughters were unsettling her "with continual visits to the retirement village."
11. After Dr Walker ceased treating the mother, Dr Wilton was again engaged as the mother's GP. On 18 January 2018 he wrote a progress note that said: I have confirmed with patient that she would prefer to remain here rather than return to [the retirement village], otherwise all well.
12. There are varied and conflicting reports of the mother's views as to where she would now like to live, in her unit at the retirement village or at the aged care facility. Each of her daughter's report that she has expressed to them views consistent with those they advanced before the Tribunal. The views she has expressed apparently vary depending on where she is when asked about where she wants to live and/or who asks her.
13. Other reflections of the mother's views as to where and how she wishes to live are to be found in reports of comments she has made to her Attorney, and staff at the aged care facility. In an email dated 5 June 2017 urging the quick allocation of a guardian for the mother the Attorney wrote: As you know, her daughter [DGE] has put forward a proposal for [the mother] to move back to [the retirement village] with full time live-in care. [The mother], who still is aware clearly of these things, has indicated strongly that she does not want to go back to [the retirement village] and certainly does not want to have live-in people with her. A buyer had been found for the [the retirement village] unit and this has been put on hold by [the retirement village]. If a Guardian can be allocated sooner rather than later, a decision can be made as to [the mother's] accommodation.
14. On 17 July 2017 in an email to the Public Guardian the Attorney wrote: 4. On the last few occasions I have spoken with [the mother] she has indicated that she does not want to move and wants to stay at [the aged care facility]. I think this view was influenced by the fact that if she went back to [the retirement village], she would need to have a live-in carer (which she does not want) and which would of course not apply at [the aged care facility].
15. In a later email to the Public Guardian dated 7 August 2017 her Attorney relevantly wrote: While I can't give you exact or definitive figures, it seems clear to me that if [the mother] moves back to [the retirement village], the cost of the live-in care would, in my view, eat up [the mother's] funds far more quickly than [the aged care facility]. In relation to your other comments; Every time I have spoken to [the mother], and this includes the last occasion which was a couple of weeks ago on the phone, when the subject has been raised about live-in care, she was very definite that she did not want to have a bar of that. She is a very private person, and I think she would be distressed at being forced to have strangers live-in with her in a small unit such as the one at [the retirement village]. This view of [the mother] in relation to live-in help was expressed to me on many occasions, sometimes face to face, but generally on the phone when the subject came up. … Regards, [The Attorney] PS? Strangely, …, while I was dictating this email, [the mother] rang through on the phone. She was on her own so was not prompted to do this by anyone. The reason she rang is that [DGE] had apparently suggested that she [DGE] on Wednesday would take [the mother] for the day up to the [country] property, stay overnight and then return to [the aged care facility] on Thursday. It seems that the powers that be at [the aged care facility] will not permit this and I suppose this is something that falls under your jurisdiction. In my conversation with [the mother], when I found her alert and conscious of what was going on, she indicated that she did not like living in a single room at [the aged care facility], but that at the same time, she was totally against going back to [the retirement village] if it meant strangers were going to be living in the apartment with her. [The mother] is very fond of the property at [in the country] and spoke of her other daughter [DGT], who lives in [nearby] coming and staying with her and [DGE] on the Wednesday night if she was allowed to go up there. I thought you would be interested to hear this.
16. The mother goes on a weekly outing, usually a walk at a nearby beach, with a paid male carer (whom I shall call "Ted"), with whom, it was agreed by the parties, she has formed a good relationship. In an email, dated 27 July 2017, from his employer responding to a request as to whether the mother had expressed views to him regarding where she wished to live, the following response was given: [The mother] very much wishes to remain at [the aged care facility] and she has informed me of this fact on numerous occasions, over the past several months.
17. The Public Guardian's officer visited the mother at the aged care facility on 26 June 2017. During that visit the officer spoke to the mother and the Director of Nursing at the aged care facility. The officer wrote in her original decision that: … [the mother] clearly expressed to the Public Guardian her preference was to remain living at [the aged care facility] and did not wish to have a live-in carer. For [the mother], a home was about: exercising her right to decide her daily routine; her freedom of decisions and action; maintaining her privacy. For [the mother] a live-in carer would; restrict her freedom to decide her daily routine and invade her personal space; restrict her freedom of action and be against her idea of her idea of having a normal life in the community. [The mother] indicated to the Public Guardian [an] awareness that she was losing her memory and her mobility was deteriorating "she was going down hill fast" and accepted that she required high level care to ensure her safety and well-being. [The mother] expressed satisfaction at the level of care and supervision she received at [the aged care facility]. She felt she had timely access to assistance if she had a fall. [The mother] explained that she was at home in her [original] property that had been sold. Hence, as a concession it was important that she [continued to live in the local area].
18. In the summary of her discussion with the Director of Nursing of the aged care facility the Public Guardian's officer noted that the Director of Nursing considered that the mother requires "24/7-hour high level carer in a structured and secured environment". She needed: ... full assistance with her activities of daily living and personal care; transfers and mobility and a high level of supervision to reduce [her] risk of having falls. The Director of Nursing noted that the mother had then been living at the aged care facility for 18 months and said that: [The mother] has consistently expressed to her [the Director of Nursing], staff at [the aged care facility] and Dr Walker that she does not want to move from [the aged care facility] as she is satisfied with the care she receives at the facility. Significantly, [the mother] has also repeatedly expressed that she does not want to have a live-in carer at [the retirement village] as a carer would invade her privacy …and restrict her choices about how she wants to spend her time.

Summary of DGE's position

1. DGE has filed detailed a statutory declaration and submission setting out her position in which she takes issue with every proposition said to support her mother remaining at the aged care facility, and advances the benefits of the retirement village proposal. She advised that she works on a part time basis for the home care service.
2. She gave evidence of a number of occasions where her mother told her that she did not like living at the aged care facility, and of her mother's expressed preference for returning to live at the retirement village with 24-hour in home care.
3. She took issue with the evidence of DGU that her mother wished to remain at the aged care facility, saying that DGU "had played on [the mother's] memory loss" to persuade her that she could not live with a full-time carer and preferred the arrangements at the aged care facility. In all her evidence she referred to "my mother"; never to, "our mother."
4. DGE criticized the Public Guardian for not interviewing the mother at the retirement village, saying that the mother's view differed with her location. While the mother could barely remember the retirement village when at the aged care facility, she could remember places and people associated with the retirement village when she was there; but her recall of the aged care facility when at the retirement village was limited.
5. It was clear from the evidence that DGE had been taking her mother back to the aged care facility as frequently as possible. She referred to a number of activities which, she says, her mother undertook during those visits, such as sewing and participating in an exercise class.
6. DGE submitted that the Public Guardian's officer should have spoken with the mother at the retirement village, and seen the village for herself, to be able to make a reliable assessment of the mother's view and best interest. In her statutory declaration, at page 22, DGE wrote: Had my mother been spoken to in her own apartment which she constantly says is 'lovely', 'so quiet' and has 'so much space', I am certain that her answers would have been different.
7. Interestingly, DGE submitted that she should have attended any such meeting, without explaining how that would advance the independence of any view expressed by the mother.
8. DGE dismissed the reports from doctors, aged care facility staff, the Public Guardian and others concerning her mother expressing the view that she preferred to remain at the aged care facility, because of where she when she expressed those views (at the aged care facility). She also said (page 12 of her statutory declaration) that those who reported her wishing to stay at the aged care facility, "are all for different reasons, against her moving" and that the mother is vulnerable to suggestion which, "she has received from all these persons …who have given their professional opinion."
9. DGE asserted that the mother's room at the aged care facility was a "one-million-dollar room" and in doing so did not acknowledge the refundable nature of the RAD. She said that her mother has no privacy in her room, and that there are, "constant comings and goings" by staff. Despite providing her mother with books, painting and sewing materials at the aged care facility, DGE said that the mother did not take advantage of those opportunities, instead lying or sitting in her room. DGE said the mother watches whatever is on TV because she is now unable to change channels. Watching TV, DGE asserted, was totally contrary to her mother's character. She also asserted that the limited space available to the mother at the aged care facility had led to her, "lack of motivation, lack of inspiration, lethargy and lack of confidence and interest."
10. DGE has a clear view of nursing homes and similar aged care facilities. This is perhaps best summarised in the following passage from her statutory declaration, at page 11: I do not agree that life in a nursing home is a normal life. I do not wish to see my mother die there. I especially do not want to see her descend to the Dementia Unit about which I have spoken in my submission. I will refuse to let her dignity be let to go this far down. I refuse to let her pass away in a small dark room where the next 'customer' will be lining up to settle in and her belongings put in plastic bags. I will fight for this to never happen to my mother. It is a tragic ending to anyone's life and an absolute insult to the Aged community.
11. DGE asserts, among other things, that: 1. Her mother's health would improve with supervised exercise at the retirement village. The carer and/or she could supervise that exercise. A physiotherapist would not need to be with her. 2. Her mother is uncomfortable living with people with dementia. 3. When visiting the country, the mother has sewn and embroidered in the last year. 4. Living at the retirement village with the cost of care and other expenses, including strata fees etc, would be slightly cheaper than those charged at the aged care facility.
12. DGE spent a considerable amount of effort in her written material asserting that her mother did not choose to appoint DGU as her enduring guardian, but simply signed the appointment of enduring guardian as it was put in front of her. She takes issue with nearly everything DGU has said, and is clearly resentful of DGU's appointment as their mother's enduring guardian. I do not intend to traverse that material in any further detail. The Guardianship Division of this Tribunal has already determined that the mother made the enduring guardianship voluntarily, and had capacity to do so. If anything, these lengthy passages in DGE's written materials reflect a refusal to accept her mother's decision to appoint DGU, and her determined effort to spare her mother from what she clearly sees as the "cruel but common fate" of living in an aged care facility.
13. In her submissions DGE suggested that a trial of living at the residential village with the home care service: What I hope to achieve for my mother is a trial stay at her home in [the retirement village] with a carer and myself. This may be for a period of up to two weeks or whatever it may take for me to quietly observe the situation, see how my mother is feeling, behaving, see whether the two carers who would be staying with her were people that my mother could easily get along with. When I asked my mother only two days ago, whilst at [the retirement village], whether she would feel disturbed in any way, coming back to her apartment she said no. She told me that she knew everyone there and that it was 'familiar territory.' The move to [the retirement village] for a trial stay would not be traumatic, she is not going to a new environment again, she would be returning to what she knows and people she knows. We have spoken at length about carers and how they work. Others in her family have not informed themselves sufficiently and have made assumptions about carers as being annoying, bossy or invading my mother's privacy. They have no knowledge of how the system works. Each time I have told my mother that I am hoping she can return home, with a carer, for a trial, I have told her that it is her right to have a choice now. It is her right to make her own decision and if she doesn't adapt to life back in her home, she has every right to return to [the aged care facility].
14. This point was emphasised during cross-examination of DGE when she said that the result of such a trial was not for her to decide, "it's for my mother". When it was then put to her that her mother's dementia is such that she cannot really decide or express a fully informed wish, DGE disagreed, saying that her mother "is able to compare things." She said that her mother is so familiar with the retirement village, that a move there would not distress her.
15. DGE denied suggestions that she was manipulating her mother, and that she would never be satisfied with any place that DGU chose for the mother to live at. She again asserted that her mother tells doctors and staff what they want to hear about where she wants to live. She did not believe that the same applied to her. She did agree that the mother tells different things to different daughters.
16. Among the materials relied on by DGE are four letters from long-term friends of the mother who speak of how diminished the mother is compared to the person they knew, and how distressing it is to visit her at the aged care facility. One letter suggests that her cognition is undiminished. A number support the proposal that she return to the retirement village.

Summary of DGT's position

1. DGT effectively supported DGE's position. Approximately a third of her statement dealing with events prior to the appointment of the Public Guardian, emphasising that DGU did not consult with DGE and her concerning the decisions she made with respect to their mother. DGT explained that because she lives in the country she sees her mother less frequently that her sisters, but does enjoy it when her mother visits her nearby country home.
2. With respect to the decision made by the Public Guardian that the mother remain at the aged care facility DGT listed a number of concerns about the decision-making process adopted by the Public Guardian. Those concerns are not a matter for me adjudicate upon, as the Tribunal's function is to make the decision again. It is incumbent on the parties to put relevant material before the Tribunal.
3. In her statement DGT pointed out that: 1. the mother's room is a small room with a bed and a chair; 2. no matter where she goes, or on what outings, the mother is returned to her bed or chair; 3. visitors must sit on the bed or in the chair as if the mother were in hospital; 4. drawing materials lay idle. "Her confinement has dulled her creative urge;" 5. she has never had any interest in TV, card games or small talk; 6. she has no desk 7. mother pays $20,000 a month to stay at the aged care facility. She referred to, but did not attach, a monthly invoice.
4. In both her statement and her submissions DGT repeatedly made the point that the mother had, "become increasingly amenable to a trial period I her apartment at [the retirement village] with a full-time carer."
5. In cross-examination DGT's attention was drawn to an email she had written to DGU, on 25 January 2017, in which she wrote: In my opinion, my mother would rapidly decline if she were moved to another residence, esp in light of the last medical report. Equally, on an emotional level, I feel that loss of continuity and people she has become familiar with, would offset depression and fear in her. I want my mother to feel safe.
6. She agreed that she had written that email, but added that it was no longer relevant, because the mother's condition had since improved. She did not take issue with the proposition that the improvement in the mother's condition was because of the care she had received at the aged care facility.
7. It was put to her that the mother wished to continue living at the aged care facility, and that this had been verified by others, including Dr Wilton. She said that she accepted that her mother had told others that she wished to remain at the aged care facility, but said she had not heard her make such a comment. Her mother had said, "I don't like it here." She explained that she did not think the Public Guardian had properly considered the option of a move to the retirement village, which she thought would provide the mother with "a better end." She said that at the retirement village the mother, "will have more room and better access to the street."
8. When asked what would happen if her mother required ongoing nursing care while living at the retirement village, DGT said that was not the case now. I then sought to clarify with her whether she thought the decision should be made based on her mother's condition now, or whether her likely future should be factored into the calculation. She said, "What happens now should dictate what happens."

Summary of DGU's position

1. DGU provided a statutory declaration, submissions and a bundle of documents in which she comprehensively responded to and took issue with DGE's material. All up she filed more than 100 pages of material. I do not intend to attempt to summarise it all. I note that a portion of the material relates to her interactions with her sisters and her mother leading up to the appointment of the Public Guardian. I do not intend to restate or attempt to resolve those conflicts, other than to again note that the Guardianship Division found that when the mother appointed DGU as her enduring guardian, she had capacity to do so. DGU was therefore authorised to make the decisions she did for her mother up to the time when the Tribunal appointed the Public Guardian, principally due to the level of conflict among the sisters. The events and disputes that occurred prior to the appointment of the Public Guardian form part of the background, but do not require determination for the purposes of this case.
2. The issue for me is what is the correct and preferable decision when it comes to deciding about where the mother should now live, given the competing proposal from her daughters.
3. In her statutory declaration DGU relevantly said that: 1. the mother's condition towards the end of her time at the aged care facility was obviously deteriorating. She was sleeping a lot, isolating and losing interest in her pass-times; 2. at the aged care facility, the mother is much more involved and interested in participating in activities than she was when living at the retirement village. She enjoys singing with the choir and her hydrotherapy sessions. DGU relied on a number of photographs of the mother with other residents of the aged care facility. The mother attends concerts at the aged care facility. She sometimes chats with others at dinner. At other times, she does not; 3. any deterioration in her mother's cognition and general condition is a natural consequence of her diagnosis. She is a different person with dementia to the individual she was before; 4. the mother is treated as an individual at the aged care facility; 5. DGT's assertions that the mother's decline is due to a lack of mental, physical, social, creative and cognitive stimulation is unsupported by evidence. DGU asserted that the mother is more social now than she was at the retirement village, and is more engaged in the community at the aged care facility than she was there; 6. she points out that in June and July 2017 DGT wrote that six months after injuring her hip, "my mother has recovered remarkably, is walking well on a frame and enjoys company and sensible conversation. She remains intelligent"; 7. the mother watched a lot of television at the retirement village 8. the mother asks for her sewing machine which DGE took to the retirement village; 9. the mother would be safer at the aged care facility where there is 24 hours nursing care and supervision than with a carer (who must sleep) at the retirement village; 10. the medical evidence establishes that the mother is unable to make decisions; 11. is a normal life needs to be viewed in the context of the mother's dementia and consequent needs.

Consideration of the facts

1. The mother is a 90-year-old woman with dementia of the Alzheimer's type.
2. Dr Wilton reported that she showed clear signs of the disease when he first started treating some two years before she left the retirement village; i.e. approximately three and a half years ago. Since then her condition has deteriorated as is expected with a progressive disease. Before her move from the retirement village, in December 2016, there is uncontradicted material that shows she was experiencing confusion, forgetfulness (the stove incident) and disorientation as to time (phone calls to daughters about matters past) and disorientation as to place (having to be escorted back to her unit).
3. At the point when the mother was moved to the aged care facility in December 2016, Dr Ahmed classified her dementia as "moderate" and recommended she required high level care. Dr Wilton made the comment that she had minimal insight into her condition, and wrongly looked to remaining bright and active.
4. Given what the manager of the retirement village told the Public Guardian, it is clear that, by the time she moved to the aged care facility, the mother was spending most of her time in her unit, and not participating in the village community. This is consistent with DGU's evidence that her mother's condition had deteriorated at that time.
5. Unfortunately, the mother fell and broke her hip shortly after her move to the aged care facility. The hip was surgically repaired and she was returned to the aged care facility without going elsewhere for rehabilitation. It is clear that the mother was then very sick for a period of time. Rehabilitation therapy and care provided at the aged care facility has seen the mother make a very good physical recovery, with her weight and general health improving, although she still requires a walker.
6. DGE asserted that the therapy the mother is receiving for her hip at the aged care facility is inadequate, and that she should be encouraged to walk with a stick. Indeed, one of the benefits of moving back to the retirement village was said to be that the mother would be encouraged to walk in the garden, and partake in exercise classes, with the carer or DGE: and, that a physiotherapist was not necessary. As I pointed out to DGE in the course of the hearing, she is not a qualified doctor or geriatrician: neither is she a qualified physiotherapist. She produced no relevant expert opinion which in any way justified her criticism of the level of physical therapy the mother is receiving at the aged care facility, under qualified supervision. I am not persuaded that the mother's physical health or mobility would necessarily improve if she moved to the retirement village.
7. Another matter of considerable concern about DGE's position is her insistence that her mother is able to decide for herself where she lives. This entirely disregards a considerable body of medical evidence that says the mother is not capable of making decisions about where she lives; the decision of the Guardianship Division of this Tribunal that she is incapable of making decisions concerning her own care: and, its appointment of a guardian for her mother. It should be remembered that DGE had applied to the Tribunal to review the mother's making of the appointment of DGU as enduring guardian, and of its operation and affect. In that application she said that the mother did not have the capacity to appoint an enduring guardian. This is difficult to reconcile with her evidence that her mother is now able to decide where she should live.
8. That DGE has a real distrust of institutions such as the aged care facility is obvious from her own statements about them and the nature of the care they provide. She views them as prison-like institutions in which the elderly are held and deprived of freedom of thought and action. This clearly colours her entire approach to how decisions should be made about her mother's care, as does her resentment of DGU's appointment as enduring guardian.
9. DGE's distrust of aged care facilities extends to those who work at such institutions. She dismissed reports by doctors, nurses and carers, that the mother has said that she wishes to remain in the aged care facility and does not want to live with a permanent carer. She said this was her mother telling the doctors, nurses and carers (and the Public Guardian) what they wanted to hear. This demonstrates a total lack of trust in their professional and personal integrity on DGE's part. She provided no basis for her assertions that professionals caring for the mother have agendas of their own. She also suggested, without evidence, that those caring for her mother at the aged care facility were not progressing her from a walker to a stick, in order to avoid the work involved. Her attacks on the professional integrity of doctors, nurses and carers, detracted from her credibility, pointing to her being willing to say whatever was necessary in order to get her way.
10. The reality is that whatever the mother says about proposed living arrangements for her must be treated very carefully because of: 1. her dementia and resultant inability to make decisions about such matters herself; and 2. the various and contrary statements she has made expressing a view as to where she wishes to live, depending on where she is and who she is with.
11. That does not mean that all the mother's expressions of opinion should be dismissed or disregarded. Rather, care should be taken in ascertaining what her true views are. There is a need to carefully examine the evidence when attempting to ascertain her views, and to look for statements or, for example, expressions of contentment or enjoyment volunteered without inquiry.
12. Bearing that caution in mind, I am of the view that because that the mother's opinions about where she should live, as expressed to her daughters, adheres to each of the daughter's very strongly pressed positions, that there is a real probability (given the high tensions relating to the issue) that the mother is suggestable and telling each daughter want they want to hear. The Coordinator's description of how the mother expressed her opinion about wanting to live in the retirement village, in their meeting at the unit, in response to a question from DGE, is telling. Her answer told DGE what she wished to hear and was in response to a specific question from DGE. It was not volunteered without prompting. The words spoken by the mother are not surprising coming, as they do, from a 90-year-old woman with dementia, confusion and memory loss, who had been repeatedly taken to her old home, in order to refresh her memory, by a daughter desirous of a specific result.
13. I find the reports from the mother's doctors, nurses and carers, and the Public Guardian, that the mother wishes to remain at the aged care facility and does not want to live with a 24-hour carer, much more persuasive for a number of reasons. First, they are entirely consistent. Secondly, the comments were made to a number of individuals (sometimes repeatedly as is the case with Ted and Dr Walker) over a period of time. Thirdly, while many were made in the aged care facility, others were said while the mother outside the facility; for example, on her regular outings with Ted. Fourthly, some report information volunteered by the mother without prompting. Fifthly, the mother has told Dr Wilmot, who knew her at the retirement village, when he said she was determined to remain independent, that she now wishes to remain at the aged care facility. Sixthly, it impresses me as much more probable and likely that DGE sought to influence her mother's opinion by repeatedly taking her to the retirement village and praising its virtues, than that (as DGE suggests) doctors, nurses and professional carers individually prevailed on the mother to say that she wished to remain at the aged care facility, because that is what they each wanted. Seventhly, it is highly unlikely that those caring for the mother would seek to persuade her to voice opinions against having a 24-hour carer.
14. I am satisfied that the mother has expressed the view that: 1. she wishes to remain at the aged care facility; and 2. she does not wish to live with a 24-hour carer.
15. With respect to the aged care facility, I accept that the room in which the mother lives is small, and that a bigger room would be better for her, giving her more room. Whether or not such a room is becomes available for her is a matter of time and cost.
16. I accept that the mother is receiving good care at the nursing home, including nursing care and physiotherapy. Her health has substantially improved following her hip injury. She is free to walk around the facility as she wishes, but uses a walker, and is confined within the facility's boundaries. She is supervised 24 hours a day and has access to qualified nursing care at all times. She lives in an environment that provides a regular and familiar routine, be it with respect to meals, social functions, exercise or personal care. Given her memory problems, and reports of her becoming disoriented as to both time and place, the security offered by confined boundaries, regular routine and constant supervision (while a restraint on her freedom of action and movement) is a necessary protection for her resulting from her dementia. The care and security provided at the aged care facility are benefits that the mother has acknowledged when expressing the view that she wants to remain there.
17. The reality is that the mother is a 90-year-old woman with well-established and progressing Alzheimer's dementia. Dr Wilton observed in his letter to the Public Guardian that the mother lacked insight into her condition. She wrongly "expected that she would always be able to be as bright and active as previously." She is no longer the bright, vibrant and active woman that she once was. This sadly is the nature of her condition. Her progressive decline was forecast by those treating her.
18. DGE's statement that her mother's "physical, mental and social decline since 2016" was a "direct result of confinement in a nursing home" is plainly wrong. It is an unqualified assertion, made by a person with a philosophical opposition to nursing home care, that simply ignores the nature of the mother's disease. It is not surprising that a woman of the mother's age and condition, has lost her interest in and passion for the things that used to occupy her, such as painting, sewing and embroidery. It is not surprising that she spends time in bed and sleeps a lot. That she now cannot change the channel on her own TV and is content to watch whatever is on (according to DGE's own evidence), illustrates the point her disease has reached, and the level of her need for care and supervision. The reality is that the aged care facility provides the intensity and type of care that the mother now needs.
19. DGE asserted that moving the mother to the retirement village, with permanent care, would provide her with more room in a beautiful environment: one that would offer her the opportunity to do what she likes when she likes, eat what she wants when she wants, all with the assistance of a paid carer. DGE talked of her mother being able to go for walks, venture out for a restaurant meal, visit the gallery or the library, go shopping, attend an exercise class, or mingle with other residents in the common areas, while living in the freedom of her unit at the retirement village. This impresses me as fanciful. It represents DGE's unqualified opinion as to what a change of environment will do for the mother's dementia. It is not an opinion endorsed by medical or specialist geriatric opinion. It is not an opinion I accept.
20. I do accept that were the mother to move to live in the unit at the retirement village she would have more space, including more room to entertain guests, together with the comfort of her own furniture and familiar items about. She would have a permanent carer constantly present in her home, but not always awake or accessible. While trained in aged care, the carer would not be a nurse, and would not be able to offer the quality of immediate medical care that is available in the nursing home. Because the carer cannot constantly be awake, and of the potential dangers if the mother were to wander off, the Coordinator acknowledged it would be necessary to lock the doors, and adopt devices that would stop the mother leaving the unit without supervision and protect her from harm: e.g. keeping her away from hot things. For a large part of the time, therefore, she will be confined within a much smaller environment than the boundaries of the aged care facility. She will be under the constant supervision of her permanent carers (including DGE) whenever she leaves the unit. The likelihood of her wishing to pursue the outside pursuits suggested by DGE is improbable, in the light of the evidence about what she does in the aged care facility. There she is taken to most activities by those caring for her in accordance with a regular schedule. I think it highly likely that the same thing would happen were she to move back to the retirement village.
21. One problem confronting the retirement village proposal is that the mother has frequently expressed the view, which I accept is genuinely held, that she does not wish to have to share her life with permanent and ever-present carers. This is precisely what would happen were she to move to the retirement village. It is to be contrasted with the situation at the aged care facility where there are staff about, but not permanently in her space. Having various people come and go to clean her room, check on her, or take her somewhere, is very different to sharing a home permanently with carers.
22. Another problem that confronts the proposal for the mother to live in the retirement village is cost. Early in the hearing I asked if a comparative costing of the two options had been done, and was told it had not. The Attorney has however, expressed the view that the aged care facility is the cheaper option. Both are expensive, especially at the moment when the RAD remains not fully paid and interest is accruing on the balance. When it is fully paid, however, interest will no longer be payable on the unpaid RAD. The cost of the daily accommodation payment will be significantly less than the cost of the home care service for 6 days a week. I am satisfied that, in the longer term, the mother's estate will be able to fund her continued care at the aged care facility for longer than it could the proposed care at the retirement village.
23. A further problem is the dislocation and upset any move is likely to cause to the mother. The weight of medical opinions suggests that this is a real likelihood, but that the mother should settle with time. I accept this is the case. I reject DGE's view that the move will cause the mother no distress because she is familiar with the unit. She is not familiar with the unit occupied by herself and a carer - the presence of whom she has expressed opposition to. I think it likely that moving her to that environment will cause her considerable distress, albeit distress that should settle with time and familiarity. Whether feelings of resentment at having someone permanently intruding in her space will disappear with time is another matter.
24. Contrary to DGT's view that the decision regarding where the mother is best accommodated should be made based on the situation now. The reality is that the mother has a progressive neurological disorder which will deteriorate with time and already has a marked impact on her daily life. In making decisions as to where she should live her needs in the reasonably foreseeable future should be considered. In addition to personal care, food etc, those needs will increasingly include nursing and medical care. They are readily available at the aged care facility, but would have to be brought in at the retirement village.

Conclusion

1. The mother's welfare and interests are the paramount consideration when deciding where she should now live.
2. I have reached the conclusion that the mother should remain living and being cared for at the aged care facility. In doing so, I have had regard to the principles of guardianship found in s 4 of the Guardianship Act 1987, and have sought to balance them in order to reach a decision that best advances the mother's welfare and interest.
3. I am conscious that given the mother's Alzheimer's disease and consequent memory loss, confusion and disorientation, she requires constant care and supervision, including restrictions on things she can use (e.g. ovens) and on where she can go, for her own protection. If she were to wander at large while disoriented and confused she would face many risks. This necessarily requires restrictions on her freedom, for her own protection. No matter where she lives, she is going to have to be protected from dangerous things and places. Thus, the doors will need to be locked no matter where she lives: locking her in the unit at the retirement village or within the boundaries of the aged care facility. The latter will give her much more room to move. In either case, it should be observed that, using a walker, the distances she can travel are already limited by her own endurance. However, the door of the unit is likely to be found obstructing her path much more quickly that the borders of the facility.
4. At the retirement village the applicants assert that the mother will have much greater freedom of action and decision than is provided at the aged care facility. I do not agree. At the retirement village the mother will have to live with the constant presence of a carer in her own living space, a prospect, which I accept she strongly opposes. I think she would find this much more intrusive on her freedom of action and decision, than the wider and less invasive supervision at the aged care facility.
5. DGT made much in her submissions of what is a normal life in the community and of the requirement that the Tribunal's decision encourage the mother, as far as possible, to live a normal life in the community. The words "as far as possible" in s 4(c) represent an acknowledgment that individuals differ in many ways, for example in age, health, stage of life and physical or intellectual capacity. Not everyone is able to participate in the community in the same way. How people live a normal life in the community differs as a result. Because of her age and illness, the mother is not like the majority of individuals in the community who are blessed with good memories, are fully oriented and well, able to walk unaided, and do not get easily exhausted. Her capacity to partake in a normal life in the community, like a considerable percentage of people her age and younger, is necessarily constrained by her illness and physical capacity. Because she is no longer able to make decisions herself and is suggestable, a guardian must make decisions for her which acknowledge the limits required by her condition, but at the same time ensure that she continues, as far as possible, to live a normal life in the community.
6. In my opinion, both proposals for the mother's future accommodation involve significant and similar restrictions on her ability to leave her home environment. In the retirement village she may be able to access the community more often than her regular weekly outings at the aged care facility, but the price of that is the presence of a permanent carer, which is a price the mother has indicated she does not want to pay. That is an understandable view which I must consider.
7. Fortunately, the mother appears to be maintaining her relationship with each of her daughters. The same is not true of the relationship between all of them. DGE has severed her relationship with DGU and will not talk with her. She has said some dreadful things about DGU (see as an example page 39 of DGU's bundle). I think it likely that, no matter where the mother lives, each daughter will want to see their mother as often as they can. I am concerned that this could prove difficult for DGU, if the mother lives at the retirement village. This is so because DGE (who will not talk to DGU) would be one of the carers with responsibility for the mother's day to day supervision. Given the disdain with which DGE holds DGU, there are grounds for concern for DGU's access to the mother, in those circumstances.
8. It should not be forgotten that the mother appointed DGU as her enduring guardian, not DGE, an expression of opinion made when the mother was competent to do so. This is an expression of the mother's view as to who should make decisions about her care, which should not be lightly ignored when considering her views.
9. With respect to the requirement that the mother should be required to self-reliant in her personal, domestic and financial affairs: sadly, that is no longer possible. She is reliant on others to manage all of those matters for her. In terms of her available financial resources, she will be able to fund her care for longer if she remains at the aged care facility.
10. In making a decision for the mother I am also required, by s 4(g), to ensure that she is protected from neglect, abuse and exploitation. Despite DGE's assertions to the contrary, there is no evidence that the mother is being, neglected, abused or exploited at the aged care facility.
11. I am not confident that the same can be said were the mother to move to the retirement village. This is so because it is clear that DGE will play an important, if not decisive, role in caring for her mother there.
12. I am concerned by the frequent trips to the retirement village that DGE (with DGT on at least one occasion) has made with the mother. A purpose achieved by those visits was to keep to the mother's memory of her unit, and of her time at the retirement village, alive. That memory was reinforced by positive conversations about the merits of life at the retirement village. One might reasonably think that frequent returns to a former residence, participating in classes and walking in the gardens, might unsettle a person who has recently had to move from that environment to an aged care facility. Dr Walker certainly did not consider the visits in the mother's best interest, but DGE persisted with them despite the written warning from the Director of Nursing. I am satisfied that one of her motives for doing so was to persuade the mother to DGE's view, that she would be better off living at the retirement village, rather than at the aged care facility. This is akin to seeking to impose her will on her suggestable mother and is exploitative.
13. I am not confident that such manipulation will cease if the mother were to move to the retirement village.
14. It is fortunate that mother's short-term memory is so impaired, that she rapidly forgets where she has been, but then recognizes where she now is. Otherwise more harm might have been done by those visits. I suggest, for the future, that the Public Guardian consider what can be done to ensure such exploitation is not repeated, including, if necessary, seeking an access function from the Guardianship Division.
15. Having weighed the evidence and the competing proposal in the light of the s 4 principles, I am satisfied that the correct and preferable decision is for the mother to remain living at the aged care facility. Such a decision best reflects the principles of guardianship.
16. As a result, I will affirm the decision made by the Public Guardian.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 16 April 2018 - typographical error - Date of Decision and Order corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2018