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[2006] WASAT 194
General information, not legal advice.
State Administrative Tribunal (WA)
2006-07-18
Original judgment source is linked above.
Guardianship and administration - Guardianship - Fluctuating capacity - Person unable to look after her own health and safety - Is in need of a guardian - The needs of the person - Who should be guardian
Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(c), s 43, s 43(1)(b), s 43(1)(c), s 44, s 44(1), s 44(2), s 51, s 84, s 119
Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA)
1 An application for guardianship was made for a 75-year-old woman by her husband. There had been concerns raised in the woman's family about some of the decisions he had made for her. The husband had applied for guardianship to seek certainty in the decision-making, by having one person with the formal authority to make decisions for the woman.
2 The woman suffered from a degenerative neurological condition which impacted on her physical well-being and her mental state. She required 24 hour care. There was some disagreement as to her capacity to make reasonable judgments about her personal health care and living situation. Even those family members who submitted she was capable, agreed that her mental state and decision-making capacity fluctuated.
3 The Tribunal decided that the represented person was unable to make reasonable judgments in respect of matters relating to her person. The Tribunal also decided that she was incapable of looking after her own health and safety and was in need of oversight, care and control in the interests of her own health and safety.
4 The Tribunal decided that the woman was in need of a guardian. The evidence showed that the woman required considerable assistance with her daily activities, that her mental state was very fragile and that her functioning was affected when she was placed under stress. The appointment of a guardian would provide a mechanism whereby personal decisions for the represented person could be planned and executed with the certainty that was required to ensure that she had stable and consistent care. It would not of itself reduce the tensions that existed between family members.
5 The Tribunal decided to appoint the husband as the woman's plenary guardian, despite the beliefs of some family members that he had not made appropriate decisions for her. The Tribunal was satisfied that the husband would act in the best interests of the represented person and saw no reason why he should not be appointed her guardian.
6 These reasons relate to an application for guardianship for PJB (the represented person) made by her husband FHB.
7 The legislation relevant to the application is the Guardianship and Administration Act 1990 (WA) (the GA Act).
8 The hearing for the application was held on 13 March 2006. The decision was reserved on that day and delivered on 23 March 2006. These are the reasons for that decision.
9 The following people attended the hearing: FHB (husband and applicant); Brian Conway (counsel for FHB); NJL (daughter); GHB (son); CSB (son); RLR (daughter); PB (adopted son); JEB (sister-in-law); DWB (brother-in-law); GHR (son-in-law); JBM (daughter-in-law); JB (daughter-in-law) and JBS (accountant/bookkeeper for FHB).
10 Dr Susan Ho, neurologist attended by conference telephone for part of the hearing.
11 CJS, son of the represented person, was unable to attend. He provided the Tribunal with a number of written submissions that will be discussed later in these reasons.
12 I have decided to appoint FHB (husband) as the represented person's plenary guardian.
13 The order is set to be reviewed in five years, the maximum period permitted by the GA Act (s 84).
14 I will provide reasons for my decision by firstly stating the relevant legislation. I will discuss the written material and the oral submissions and then analyse this information against the legislation to come to my determination.
15 When considering guardianship, I must be satisfied that the represented person is someone for whom a guardian could be appointed (the question of capacity) and if found incapable, whether the person should have a guardian appointed (the question of need). If a guardian is to be appointed, the final questions to be considered are what functions should be given to the guardian and who that guardian should be.
16 The relevant legislation is contained in s 4, s 43, s 44, of the GA Act.
17 With regard to guardianship, I need to be satisfied that the person for whom an application has been made is incapable of looking after his or her own health and safety, or is unable to make reasonable judgments in respect of matters relating to his or her person or is in need of oversight, care or control in the interests of his or her own health and safety or for the protection of others, and is in need of a guardian (s 43).
18 The principles to be observed by me when dealing with proceedings under the GA Act are set out in s 4. The primary concern shall be the best interests of the person for whom the application has been made. The remaining principles are, firstly, that every person is presumed to be capable of looking after his or her own health and safety; of making reasonable judgments in respect of matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to his or her estate. Secondly, an order appointing a guardian or administrator shall not be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Thirdly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient to meet the needs of the person concerned. Fourthly, an order appointing a limited guardian or an administrator shall be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action. Finally, as far as possible, the views and wishes of the person concerned should be ascertained and considered.
19 The question of who should be appointed guardian is provided for in s 44 of the GA Act. The person must be over 18 years of age, consent to the appointment and act in the best interests of the person for whom the application has been made; not be in a position where their interests conflict or may conflict with the interests of that person and is otherwise suitable to act as guardian for that person. When considering suitability the following should, as far as possible, be taken into account: the desirability of preserving existing relationships within the family of the person for whom the application has been made; the compatibility of the proposed appointee with that person and with the administrator (if any); the wishes of that person and whether the proposed appointee will be able to perform the functions vested in them. A proposed appointee who is a relative of the person for whom the application has been made is not, by virtue only of that fact, taken to be in a position where their interests conflict with that person. An administrator is not disqualified from being appointed a guardian. Finally, except where appointed to act jointly with another person or persons, the Public Advocate should not be appointed as a guardian unless there is no other person who is suitable and willing to act.
20 CJS (son) has provided written submissions dated 8 February 2006, 11 February 2006, 15 February 2006 and 6 March 2006. He also provided a copy of a letter (undated) he sent to FHB.
21 NJL, daughter of the represented person, provided a written submission dated 13 March 2006.
22 CJS contends that the represented person is capable of making personal and lifestyle decisions for herself, and is not in need of a guardian. His submissions about this matter will be discussed later in these reasons under "The question of capacity".
23 CJS' further submissions can be summarised as follows:
• He was appointed the represented person's attorney under an enduring power of attorney (EPA) on 29 September 2005.
• He says that the reason that he was appointed attorney was "... because [the represented person] had experienced a significant breakdown of her relationship with her husband [FHB] for a number of reasons not the least of which was that he by his own admission was unable to cope with my mother's medical condition".
• He says that he had legal advice that the EPA provided him with authority to make personal, as well as financial decisions for the represented person. This was also the represented person's understanding and when he visited her on 8 February 2006, she reiterated her wish that he be the one to make those decisions for her.
• He now knows the legal advice he obtained to be incorrect.
• He lives in Victoria and relies principally on the input of his sister, NJL whose intentions he says are honourable.
• It had been his initial intention that should an "appropriate and compassionate environment" not be found in the family home for the represented person, that she reside in suitable private accommodation with appropriate care funded from her assets. Subsequently, a suitable care regime has been arranged for the represented person in her home which CJS hopes will be permanent.
• He opposes FHB acting as the represented person's guardian and has "serious reservations" that FHB can competently represent the represented person's interests. The represented person made a clear choice not to have FHB make decisions for her when she executed the EPA in September 2005 in favour of CJS.
• FHB has demonstrated an inability to make "reasonable and rational" decisions for the represented person and lacks "emotional care" toward her. This is demonstrated by his conduct during several incidents. The first described by CJS is when in September 2005, FHB embarked on a road trip to the north of Western Australia with the represented person. This was a poor decision given that the represented person was frail and had specific health care needs. The trip was unsuccessful; the represented person suffered great distress and eventually had to be placed in the care of her daughter, NJL. The second incident occurred subsequent to the road trip; a family meeting was held at which FHB "snapped" and shouted that he was not going to look after the represented person any longer. He said this in front of the represented person and as such, showed her disrespect. The third incident occurred some weeks later at the represented person's home when CJS was visiting. FHB said he was going out and expected CJS to administer medication to the represented person without instruction.
• He is unsure as to why FHB is persisting with the guardianship application. As the represented person's "next-of-kin", FHB is already able to make decisions that affect the represented person's health and well-being.
• He would support the appointment of LRB (another son of the represented person) as guardian, should one be needed whilst he would continue to manage the represented person's finances under the EPA.
24 In her letter to the Tribunal, NJL submits that she opposes FHB's application for guardianship of the represented person for the following reasons:
• The care arrangement in place for the represented person in her home is working well. It is accepted and recognised that FHB cannot "cope" with the represented person for more than a couple of hours at a time.
• FHB has made very poor decisions for the represented person which have impacted adversely on her health and well being. The most notable is the driving trip to the north of the State in September 2005 which he undertook against advice. The trip culminated in a desperate telephone call by the represented person to NJL, begging NJL to come and get her which is what transpired. At a subsequent family meeting FHB, in an "aggressive outburst", said "he had had enough of her (mum)" and that NJL could now look after her. He said he would be back in a month.
• It was after this "outburst" that the represented person appointed CJS as her attorney under an EPA, believing that he would be able to make health and care decisions, as well as those relating to the represented person's financial affairs.
• With the current care arrangements in place for the represented person, NJL is satisfied that FHB has the "ability" to make decisions about care, but should the arrangements breakdown and FHB is the guardian of the represented person, then other family members would be powerless to do anything to assist.
• Should guardianship be deemed necessary then she would support the appointment of LRB with CJS continuing to act as the represented person's attorney for financial purposes.
25 A number of reports from medical practitioners are available that refer to the represented person's capacity to make reasonable judgments and decisions. In chronological order they are:
2 February 2006, Dr P Haggart, general practitioner
26 Dr Haggart had last seen the represented person in November 2005. At that consultation, he noticed "confusion" on the part of the represented person but was unsure as to whether she was capable of making reasonable decisions about her personal health care and living situation.
27 Dr Ho stated that at the time of writing her report, the represented person was suffering from "acute brain syndrome secondary to respiratory tract infection." As for the represented person's prognosis, Dr Ho stated: "her acute confusional state may improve following resolution of her respiratory infection but in some instances, particularly in elderly patients with a pre-existing neurodegenerative disorder (as in [the represented person's] case), the cognitive impairment may not resolve completely". Dr Ho was of the view that the represented person was not capable of making reasonable decisions in respect of her personal health care, living situation and financial affairs.
1 March 2006, Dr R Warne consultant to the Inner City Geriatric Service
28 Dr Warne saw the represented person on 1 March 2006. He states in his report:
"I felt that [the represented person] was of high dependency, i.e. if not for her husband's intervention, she could not be supported in the community. Her intellectual decline is significant and progressive such that [the represented person] does not have testamentary capacity or the ability to complete either Power of Attorney or Enduring Power of Attorney. The most likely cause for her intellectual decline is cerebral ischaemia/SDAT. She has longstanding Parkinson's disease and it is well recognised that people with Parkinson's disease are more likely than others to develop intellectual decline."
Dr Ho attended the hearing by conference telephone
29 Dr Ho last saw the represented person on 2 March 2006. According to Dr Ho, the represented person's mental state has improved considerably since the acute episode in February 2006 although she still suffers some confusion. Dr Ho says that the represented person's mental state fluctuates and that whilst "superficially" she is able to answer questions and be quite lucid, at other times she seems to have certain ideas about people being after her and concerns about things around her. It is difficult to determine whether these ideas are fixed and what sort of implication they have when the represented person's condition keeps fluctuating.
30 An example of "ideas about people being after her" is when the represented person exhibited some paranoid behaviour whilst she was in hospital. She thought one of the nurses was trying to harm her, so the represented person tried to strangle the nurse with some trousers.
31 Dr Ho states that the represented person does not suffer from Parkinson's disease in its strict definition; she has a condition related to Parkinson's disease with many of its physical features including slowness and rigidity.
32 When asked whether, in her opinion, the represented person is capable of making reasoned decisions about her treatment and living situation, Dr Ho responded with:
"I don't think she's got the full mental capacity to make decisions about her health issues ... I mean by that that if someone is truly capable of making all their decisions, they have to be truly independent and in many ways she's dependent on her carers or the husband, for her medical care, for medication. She can't really make a reasonable decision." (T: 28)
33 In commenting on the complexity and variability of the represented person's mental state, Dr Ho states:
"Well, I must say that she's a difficult case. Her mental capacity seems to fluctuate. Certainly when she was in hospital she had enough - - when she was well she had enough mental capacity to state where she wanted to go, and she said she wanted to go home to her husband; and she was very adamant about that. I talked a very long time to make sure that she was actually very lucid, on those days when she was lucid, to ask her those questions - where she wanted to go and who she wanted to be with; and every time it was her husband, and she stated that she was happy when her husband is around, and she wanted to go home to her husband. That has been - - you know, she's stated that to me several times in hospital, when she was well. She's made those statements in front of her daughter [NJL] and she has also made -- stated that she was happy, in front of her son, [CJS]. I think - - I mean, I've spoken to them after she has made those decisions, and we all agreed that she was very lucid at the time she made those statements. She does have lucid times, but on the other hand, at times she is not completely lucid and little things come through." (T: 28)
34 Dr Ho is of the view that the represented person is not capable of looking after her own health and safety.
35 CJS (son) is of the view that the represented person is capable of making health and lifestyle decisions for herself although "her capacity does vary". What is required is time and patience to listen to her. CJS cites three examples of the represented person's capability; the first is the represented person's decision to return to her home which CJS states was taken after consideration, consultation with Dr Ho and other family members and after "appropriate compromises [were] achieved". The second is when in late February 2006, the represented person went shopping and selected several clothing items on the basis of likes and cost. The third was when she decided to attend a family picnic despite conflicting views as to whether she would be able to physically cope.
36 CJS states that he does not consider the represented person is capable of making decisions on complex legal and financial issues.
37 FHB (spouse) says that he first noticed the represented person changing about five years ago. She was subject to panic attacks and depression. The represented person started to see Dr Ho two years ago and it was then that she was diagnosed with a particular type of Parkinson's disease. FHB says that the represented person suffers from rigidity in her movements and that she now double vision. She has seen a specialist about her eyes and FHB has been told that "the problem is now that the brain doesn't compute what she sees, so she can no longer read and all her concentration has gone in that department. She can read little bits. She might read your name or something like that, but she can't read a book". (T: 12)
38 FHB submits that the represented person's mental capacity is "going downhill all the time, but you don't realise it". (T: 16) The "ideas" to which Dr Ho refers (see above) occur often according to FHB. For example, at one time, the represented person saw blood on the floor when there wasn't any and during the aborted road trip in September 2005, she asked FHB whether he was going to murder her.
39 FHB says that the represented person is lucid at times, however, further evidence of her decline occurred only two weeks ago when they went to visit family in Mandurah. The represented person used to like playing a form of dominos but at the visit she was completely unable to do so despite assistance.
40 FHB says that he and the carers try not to put too much stress on the represented person to have to decide things. This is so even for mundane matters such as what to have for breakfast or what clothes to wear on a particular day. He states that: "It's easy to change her mind. It's easy to do that", which FHB submits shows that the represented person could not make important medical decisions for example.
41 Counsel for FHB submits that the variability of the represented person's capacity itself demonstrates the need for a guardian; the represented person might be lucid one day but not the next, and the latter day might be the time that a particular decision needs to be made.
42 JEB (sister-in-law) lives in the property adjoining that of FHB and the represented person and has done so for 29 years. The represented person requires 24 hour care and JEB coordinates the carers. She says that she too first noticed changes in the represented person about five years ago and it began with panic attacks, anxiety, and pains in her arms and legs. The represented person now suffers from what JEB describes as "these quite terrifying ... situations". (T: 42) In JEB's experience, these have included seeing things that other people cannot see, believing her home was bugged, believing that dogs barking were guns firing and saying one day that she did not want to go to school and asking about her mother (who died in 1958). In another instance, the represented person believed that JEB was intending to remove her from her home. JEB submits that the represented person can be reassured when these situations occur but does not understand that some of her beliefs are false.
43 JBS (accountant/bookkeeper for FHB) provided care to the represented person for two nights in January 2006. She says that the represented person spoke of a family meeting that would be taking place on the night, but because no one had turned up, this showed they did not care and that the meeting should then be held just with her and JBS. JBS was not aware of any meeting having been scheduled. The next night, the represented person asked JBS if she had typed the minutes of the meeting. A few days later CJS (son) contacted JBS and said that the represented person had told him that JBS had her sign something. The only thing that JBS could relate that to was the "meeting" and the minutes. JBS submitted this was an instance where an event occurred (the meeting) and it was translated by the represented person to CJS as something else (the signing of something).
44 JBS recounts a recent instance where FHB contacted her and asked that she call the represented person to assure her she did not have a debt of $75 000. JBS advised the represented person of that fact which seemed to reassure her. The represented person did not seem to recognise JBS in the exchange.
45 GHB (son) is of the view that the represented person is not capable of making personal and lifestyle decisions for herself. He puts it this way:
"Is she capable? Absolutely not. I was with her as recently as yesterday, and some of the delusions you've heard about. I could rattle off another half dozen, equally as serious, where mum is absolutely convinced things were not as they were, and they were very serious things; and she's under great distress about some of those things." (T: 49)
46 GHR (son-in-law) agrees that the represented person has difficulties in making decisions for herself.
47 DWB (brother-in-law) recounts an incident on the morning of the hearing where FHB phoned him and asked that he speak to the represented person because she believed he and his wife had been killed. DWB submits that the represented person is not capable of making personal and lifestyle decisions for herself.
48 NJL (daughter) says that when the represented person is lucid "she's very lucid" (T: 53), although her lucidity varies tremendously. Since the represented person has returned home she has been much more lucid more often. NJL submits that the represented person needs ongoing care "... because her episodes are increasing because of what's happening to her brain". (T: 54) The represented person has periods of extreme confusion and sees things that are not there. At those times the represented person is concerned for her own safety when that is not necessary.
49 NJL submits that when the represented person is lucid, she can still make good decisions, but that she cannot be given too many choices. She says that when the represented person is under stress she cannot function at all. NJL is of the view that the represented person requires support to make medication decisions.
Findings on the represented person's capacity
50 The represented person suffers from a degenerative neurological condition which impacts on her physical well-being and her mental state. She requires 24 hour care. There is some disagreement as to her capacity to make reasonable judgments about her personal health care and living situation, but even those who say she is capable (CJS in particular), agree that her mental state fluctuates.
51 Dr Warne, who has seen the represented person only once, mentions a long-standing diagnosis of Parkinson's disease (with which Dr Ho does not strictly agree) and a significant and progressive intellectual decline for the represented person.
52 In her evidence, Dr Ho expressed some ambivalence about the represented person's mental state reflecting the characteristic of variable lucidity but ultimately expressed the view that the represented person does not have the "full capacity" to make decisions about her health issues because she is not "truly independent" of her carers and that "she can't really make a reasonable decision". Despite this, Dr Ho was satisfied that the represented person could make the decision to return home to be with her husband when Dr Ho discussed this with her in hospital.
53 I prefer the assessment of Dr Ho over that of Dr Warne, given that she has treated the represented person for two years and she is able to provide a more nuanced perspective of her diagnosis and prognosis.
54 The critical feature of the represented person's mental state seems to be its fluctuating nature and what occurs when her lucidity is compromised. Dr Ho describes this as the represented person having "certain ideas about people being after her and concerns about things around her". There is evidence to show that the represented person suffers at times from extreme paranoid ideas. The examples given were her belief that her husband was going to murder her (the road trip to the north of the State) and that a nurse was going to harm her whilst she was in hospital, both incidents leading to disturbing reactions by the represented person.
55 The represented person has at one time believed her house to be bugged and that her sister-in-law was intending to remove her from her home when clearly this was not the case. There is much evidence of the more benign instances where the represented person sees things that are not there and although she can be reassured when this happens it is the view of JEB (sister-in-law) at least that the represented person does not understand that some of these beliefs are false.
56 Such ideas and the fact that it cannot be known when they will occur must, in my view, affect the represented person's ability to consistently make reasonable decisions about her person.
57 There is evidence that stress severely impacts on the represented person's functioning and also that she cannot be given too many choices when making a decision. I find this to be a significant deficiency in the represented person's decision-making process. Major decisions in a person's life, as opposed to the mundane daily decision-making, are inherently stressful particularly, as in the case with the represented person, it is exacerbated by the impact of substantial physical disabilities and the tension created by conflicting family members.
58 There is also evidence that when the represented person communicates an event such as the "meeting and minutes" example provided by JBS, there is the possibility that her understanding of the event is partial and can lead to miscommunication of that event.
59 I am not convinced by the submission of CJS (son) that simply by time and patience can these deficits be overcome and the represented person make consistently reasoned decisions about her personal life. I accept that in her lucid moments the represented person can contribute to the decision-making; Dr Ho has said for example that the represented person decided to return to her home when discharged from hospital, and this was recognised by Dr Ho and family members as the represented person's decision. However, when I consider all the evidence of her day-to-day mental state, I am not satisfied that the represented person is able to make decisions that can be consistently relied upon as representing a process of considering the nature of the decision to be made, the alternatives available and their consequences.
60 I therefore find that the represented person is unable to make reasonable judgments in respect of matters relating to her person. I also find that she is incapable of looking after her own health and safety, and is in need of oversight care and control in the interests of her own health and safety. The represented person satisfies the provisions of s 43(1)(b) of the GA Act.
61 When a person is found to be incapable, pursuant to s 43(1)(b) of the GA Act, the question that next has to be considered is whether she "is in need of a guardian" pursuant to s 43(1)(c).
62 The meaning of "is in need of a guardian" was considered by the Full Board of the Guardianship and Administration Board in Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) at 320-332:
"... it is apparent that where the provisions of s 43(1)(b) are met it will usually follow that there will be a need for a guardian as provided in s 43(1)(c). The same can also be said in relation to the need for an administrator under s 64(1)(b). This is so because unless a guardian or administrator is appointed there would in most cases be no one with legal authority to make decisions in respect of the represented person. There would in other words be a legal vacuum. Therefore the 'need' in those sections in our view means the 'need' for someone to have formal legal authority to make decisions on behalf of the represented person in order to resolve issues relating to the personal affairs of the represented person or to manage and protect the financial estate."
63 There may, however, not be a need for a guardian pursuant to s 43(1)(c) if, for example, "... there is some other statutory provision which gives legal authority for the decision-making in question [...] or if there is in fact no live issue or foreseeable conflict in relation to the personal affairs of the represented person so as to give rise to the need for this Board to intervene in the life of the represented person by making a formal order". (MM at 330)
64 I must further determine "need" by taking into account the meaning of "needs of the person" in s 4(2)(c) of the GA Act which was also considered by the Full Board in MM (at 330):
"... the phrase 'needs of the person' ...involves a different test. The 'needs' there described are of wide import and encompass all the wants and necessaries of the person. Thus there is a two step process. The Board must first determine whether there is a need for a guardian in s 43(1)(c) (or a need for an administrator in s 64(1)(b)) and then move on to the issue whether notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of that person can nevertheless be met under informal arrangements which are less restrictive of the person's freedom of decision and action."
65 I respectfully agree with the reasoning in MM.
66 The represented person currently lives in her home with FHB and receives 24 hour care which includes a carer staying throughout the night. FHB says he also employs a cook for four hours a day to ensure proper meals are planned and provided. Aspects of the house have been modified to cater for the represented person's physical disabilities. The care is costly, but FHB says that it can be maintained indefinitely. JEB (sister-in-law) coordinates the carers which she does on a voluntary basis. She says that care plans have been developed for the represented person in respect of her mobility, eating, hygiene and other needs to ensure that all the carers follow the same procedures.
67 There appears to be universal agreement of the suitability of the current care arrangements for the represented person. CJS (son), who is in conflict with FHB, states in his written submissions that the care is appropriate for the represented person's physical needs and "I presume that this care arrangement is permanent and that my mother will not be decamped to an institution" (Letter of 6 March 2006). NJL (daughter) supported the return of the represented person to her home and submits that the care arrangements are working well. Dr Ho says that home is the best place for the represented person and when lucid the represented person has said that she does not want to go into a nursing home.
68 Both CJS and NJL submit there is no need for a guardian given the agreement about the care arrangements and their acknowledgement that FHB, as the represented person's "next-of-kin", is in a position to make decisions about her health and well-being. NJL submits that if FHB is appointed guardian and the care arrangements break down, then other family members would be powerless to do anything to assist the represented person.
69 CJS states in his written submissions that he tried to dissuade FHB from proceeding with the guardianship application but has been unsuccessful:
"... despite this he deems it necessary to proceed for reasons that I can only guess at. I certainly don't believe it is in my mother's best interests. My brother believes it is so [FHB] can control the agenda. What the agenda is and why he needs to control it, again, I can only guess at." (Letter of 6 March 2006)
70 In her evidence, NJL makes a similar submission. She states that when she spoke to the represented person about the application for guardianship, the represented person said to her that she supposed FHB saw her as a child who cannot make decisions for herself. NJL said to the represented person that FHB "wants to control the decisions he makes for you". (T: 57) NJL states further that she asked FHB why he wanted guardianship and he is reported to have said because he wants total control without the interference of her or CJS. In the hearing FHB responded to this statement with "that's right". (T: 59)
71 GHB (son) submits that there has been interference in FHB's efforts to care for the represented person and that has made it harder for him than it needs to be. For that reason a guardian is needed and it should be FHB as long as he remains physically and emotionally able.
72 GHR (son-in-law) submits that there seems to be some irreconcilable differences in the family which, in his view, might never abate. He supports the appointment of FHB so that there is on person with the formal authority to make decisions for the represented person.
73 In his evidence, CSB (son) states:
"The initial cause of this whole problem has been the fact that [FHB] didn't really want mum around. Whether it was due to stress or not coping, I said to him in the past that he should have approached the family at a much earlier stage, rather than let it get to a head and then react." (T: 66)
74 CSB supports the current care arrangements but states "if, however, dad is going to continue with this conflict, and use legal means to block [CJS] and [NJL] attempts at care, I would recommend a joint administration [sic] rather than just solely on dad" (T: 67).
75 Counsel for FHB submitted a letter from solicitors acting for CJS, dated 27 January 2006, which states in part that the represented person and FHB had separated, and that CJS was looking after his mother's interests as attorney under an EPA. FHB says this occurred after a very traumatic time; he had been caring for the represented person from 5 pm in the afternoon to 8 am seven days a week; he was attending to her personal needs and he was not getting much sleep. Eventually, on medical advice, he decided to take a holiday and this he did from 9 January to 22 January 2006. He had put care arrangements in place for the represented person. Upon his return from the holiday, he was told that NJL had taken the represented person to her home to look after her. Soon after that the letter arrived from the solicitors for CJS. FHB says he was horrified at what had happened; "I could not understand how the kids could do that to me". (T: 18)
76 FHB says that the represented person soon became unwell and was admitted to hospital where she stayed until 21 February 2006, and from there she returned to her home.
77 Counsel for FHB submits that a guardian is needed for the represented person (and that it should be FHB), to provide certainty to the decision-making. He points to the submissions of CJS in particular (see above), to argue that the allegations against FHB are such that although there is current agreement about the represented person's care, one could not be sure this will last. The most recent submission of CJS detailing his strong view as to why FHB should not be guardian was made only days before the hearing.
The Tribunal's findings on the need for a guardian
78 The evidence before me is that the represented person's family support her care at home although the current care arrangements have only been in place for a short time. Since at least September 2005, the time of the aborted road trip, there has been significant antagonisms within the family, principally between FHB and CJS and NJL. Positions have been taken to the extent that it is fair to say that trust is at a low point.
79 It could be said that the current position is one of a truce between those family members who are suspicious of the motives or intent of each other. This is not conducive to the represented person's well-being.
80 It is clear to me that the family members care deeply for the represented person and have strong, and at times differing, views about her best interests.
81 There is a legal vacuum in the decision-making for the represented person and I am not satisfied that the management of her ongoing care will be free from the sort of conflict that has characterised her living situation since at least September 2005.
82 There is provision in the GA Act for a person, the first in order of a hierarchy of persons, to make medical treatment decisions for someone who can no longer make these decisions for themselves, without requiring formal guardianship appointment (s 119). FHB, as the spouse of the represented person, is the person in her life who would have that authority.
83 I am not, however, persuaded by the submission of CJS and NJL that there is no need for a guardian because FHB, as the "next-of-kin" of the represented person, is already able to make decisions for her. It seems to me somewhat contradictory to argue for this position, as CJS does, and also argue that FHB has demonstrated an inability to make "reasonable and rational" decisions for the represented person.
84 I agree with the submission put by Counsel for FHB that there should be stability in the decision-making for the represented person. The evidence shows that the represented person requires considerable assistance with her daily activities, that her mental state is very fragile and that her functioning is affected when she is placed under stress. The appointment of a guardian will provide a mechanism whereby personal decisions for the represented person can be planned and executed with the certainty that is required to ensure that she has stable and consistent care. It will not of itself reduce the tensions that currently exist between family members.
85 I therefore find that the represented person is in need of a guardian pursuant to s 43(1)(b) of the GA Act and that her "wants and necessaries" (see MM above) cannot be currently met in her best interests without the making of a guardianship order (s 4(2)(c)).
86 I also find that, on balance, a plenary order is appropriate when considering all of the represented person's needs and to ensure the certainty in the decision-making I have earlier referred to. This includes decisions about the represented person's medical treatment and health care.
87 FHB has proposed himself as the represented person's guardian. He and the represented person have been married for 40 years and FHB states:
"It was a good marriage. We had a lot of fun. We had a lot of trips overseas and all that stuff, through the years. We've had a pretty successful business and we've been able to afford trips; and she's been to England more times than I have." (T: 13)
88 FHB says that he misjudged the "condition of [the represented person's] illness" and that she would become disoriented when he attempted the road trip in September 2005. The original intention had been to travel to London but when it was decided that the represented person could not make that trip, she said to him that they should have one last holiday together. When the represented person's mental state deteriorated during the road trip, he was initially at a loss at what to do. The situation worsened, the represented person soiled her dress which FHB attempted to fix, and then she said she wanted to stay with her daughter. This is what eventually happened.
89 Some days later, at the family meeting already mentioned in these reasons, FHB says that both CJS and NJL told him they could not look after the represented person:
"So I got annoyed at that time, and I stormed out of the meeting and said: 'Well, I won't care for her, either.' That rejection on my part didn't last for long, because I was more than happy, when I calmed down, to carry on looking after her - which is what eventually happened anyway." (T: 15)
90 In her evidence, Dr Ho submits that FHB comes across as an extremely caring person:
"... I've known [FHB] since June 2005; and I have found [FHB] to be a very caring and devoted husband, even from the very beginning. You know, every time she comes for a visit he's always with her. There's always very clear documentation and progress. He looks after her medications very well, and I find him to be extremely caring ..." (T: 29)
91 Dr Ho submits that FHB sometimes tries too hard and in the past has exhausted himself. She thinks this might have been a factor in the problems experienced during the road trip.
92 FHB says that the stress has eased because of the 24 hour care the represented person now receives and because he has changed his work practices. He now makes sure he gets a proper night's sleep.
93 Despite the conflict, FHB says that he has no objection to the represented person's children visiting her at home as long as they let him know they are coming.
94 CJS and NJL, in their written submissions, submit that FHB is not the appropriate guardian for the represented person because he has made poor decisions which have adversely impacted on her health and well-being (see "The written submissions", above). They support the appointment of LRB, another son of the represented person, as her guardian with CJS continuing to act as the represented person's attorney for financial matters. They also submit that FHB seeks guardianship to control the decision-making to the exclusion of others.
95 In her evidence at the hearing, NJL states that she is the represented person's only "blood daughter" and that she has also always been her confidante and friend. She says the represented person feels confident to talk to her about matters she would not talk to other people about. NJL says that she contacted the represented person on the morning of the hearing and when she asked the represented person what she would like the outcome of the hearing to be, she was told the outcome should be consistent with the original intention to have CJS make the decisions when the EPA was executed.
96 NJL also submits that she is concerned about how FHB reacts when stressed and that he is now 76 years of age, and that she would prefer someone younger as guardian. She submits that FHB has always been "fix-it" person but that the represented person's situation cannot be fixed and the attempt to find a solution by FHB might not be in the represented person's best interests.
97 RLR states: "I would support dad [FHB] in applying for guardianship. I think he feels betrayed and lacks that security. I understand that others are anxious that they'll be betrayed as well ..." (T: 68)
The decision about who should be appointed guardian
98 When appointing a guardian, I must be satisfied the person will act in the best interests of the represented person, not be in a position where his or her interests conflict or may conflict with the represented person and is otherwise suitable to act as guardian (s 44(1) and s 44(2) of the GA Act).
99 FHB is proposing himself, and on its face, this would seem an evident appointment. FHB is the represented person's spouse, they have been married for many years and FHB has arranged for the full-time care of the represented person in the family home. Dr Ho, the represented person's neurologist, says that in her experience she has found FHB to be a very caring person perhaps at times overstretching himself. The appointment of FHB is supported by a number of family members.
100 The appointment is not, however, supported by CJS (son) and NJL (daughter) and those submissions have already been outlined in these reasons. It would seem the basis of their argument is that FHB makes poor decisions for the represented person, that he at one time said he did not want to care for her and that with formal authority he is likely to exclude interested family members from the decision-making.
101 I accept the explanation of FHB that he misjudged the extent to which the represented person could cope with travelling when he decided on the road trip in September 2005 and that he tried to take on the care of his wife almost single handed, which in hindsight he could not do.
102 It might be that there was some denial on the part of FHB of the situation of the represented person as it was rapidly unfolding. It is arguable that he should have sought help from the family earlier. I accept and find, however, that FHB acted in this way as a consequence of the strain of witnessing his wife deteriorate both physically and mentally. The situation is now rectified. The represented person is receiving appropriate care in her home and this has been arranged by FHB.
103 I am satisfied that FHB will continue to act in the best interests of the represented person and see no reason why he should not be appointed her guardian. I therefore appoint FHB as the represented person's guardian with plenary powers as earlier discussed in these reasons. I see no need to make a joint appointment as proposed by CSB (son). The order is set to be reviewed in five years the maximum period allowed by the GA Act (s 84).
104 As guardian, FHB is bound by the relevant provisions of the GA Act including those of s 51 which sets out in a non-exclusive way how a guardian must act in the best interests of a represented person. This includes the guardian taking into account, as far as possible, the wishes of the represented person and acting in such a way as to maintain the supportive relationships the represented person has. FHB is obliged to act in a consultative way in the making of decisions for the represented person.
I certify that this and the preceding [104] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER