Re LXN [2016] SACAT 23 (23 February 2016)

3. The Tribunal sets aside order 3 of the administration orders made on 24 August 2015 which required the Director of Nursing at the protected person's former aged care facility to communicate with the Public Trustee.

Guardianship and Administration - Appointment of Public Advocate where family conflict - Roles of guardian and carer distinguished

South Australian Civil and Administrative Tribunal Act 2013 ss 56(1)(c), 70 & 86

This is an edited version of the Tribunal's statement of reasons issued pursuant to section 81 of the Guardianship and Administration Act 1993. The protected person has been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the protected person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

1. These reasons relate to an application for internal review lodged by TJF, QOS and MGE in which they sought that the Tribunal set aside the orders made by the Tribunal on 24 August 2015. The effect of those orders was that the Public Advocate was appointed as the guardian of LXN and the Public Trustee was appointed as her administrator under the Guardianship and Administration Act 1993. TJF is the husband of LXN while MGE and QOS are two of LXN's sons.

2. The orders made on 24 August 2015 followed an application by VSD, GWQ and BIA. They are the other three children of LXN.

3. MGE and QOS appeared in person before the Tribunal on the hearing of the internal review application. They informed the Tribunal that their father, TJF, would also have appeared but for the fact that he had suffered a fall the previous day and may have concussion. They indicated that he supports their position in relation to both the guardianship and administration issues.

4. JZQ, the husband of BIA (and thus the son-in-law of LXN), sought leave of the Tribunal to appear on behalf of his wife under s 56(1)(c) of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act). He informed me that she found the situation too stressful to attend or to appear in person. I note that she has a significant health issue. The application was opposed by MGE and QOS on the basis that JZQ had little or no direct knowledge of, or involvement in, the issues. I granted permission for JZQ to appear on behalf of his wife on the basis that he was to be an advocate rather than a witness.

5. Ms Kathryn D'Angelo appeared for the Public Advocate and Ms Anita Ewing appeared for the Public Trustee. Mr Peter Womersley appeared as the separate legal representative for LXN.

6. Prior to the hearing I had read carefully all of the written submissions and other materials filed by the various parties with the Tribunal both in relation to this hearing and the hearing held on 24 August 2015. I also had regard to the transcript of the earlier hearing. I will not refer in detail to that material but have taken it into account in reaching my decision together with the submissions made at the hearing before me.

7. LXN did not appear at the hearing. The Tribunal had accepted at the hearing in August 2015 that in view of the medical evidence it was not possible for her to appear in person. For that reason a member of the Tribunal had met with her on 20 August 2015 and taken evidence under s 86 of the SACAT Act. In that light I did not require the attendance of LXN.

8. The finding previously made by the Tribunal that LXN has a mental incapacity was not disputed by any of the parties. While QOS and MGE suggested at the hearing that their mother's mental capacity varies from day to day, they did not suggest that she does not have a mental incapacity.

9. The medical report provided by Dr DC dated 30 July 2015 indicates that she suffers from vascular dementia and depression and has had recurrent episodes of delirium. She also has several physical problems, including ischaemic heart disease. While LXN does attempt to make decisions about her affairs, her ability to consider options and choices is severely limited. Dr DC had also reported that LXN has poor impulse control, lacks insight into her incapacity and is highly suggestible. Dr DC had stated that her diagnosis was based on her own examination and observations and also on examinations undertaken by Dr AK, a consultant geriatrician.

10. Unfortunately, the copy of the report prepared by Dr AK dated 11 June 2015, together with various hospital discharge reports, was partly illegible. However, the copies of the reports are sufficiently clear to show that LXN was diagnosed with vascular dementia about ten years ago and that a mini mental state examination (MMSE) had been undertaken with LXN scoring 15 out of 30.

The evidence of YHV of the Office of the Public Advocate

11. At the time of the earlier hearing in August 2015 LXN was living at the aged care facility. Her husband, TJF, was also then living at that facility. In the intervening period they had both returned to live in the family home. I admitted as fresh evidence an affidavit sworn by YHV of the Office of the Public Advocate, being the delegate appointed to exercise the powers of the Public Advocate in relation to LXN. YHV stated that she had approved the change in living arrangements on 4 December 2015 on a trial basis. She had done so because it was always the wish of LXN that she return to her home to live and the aged care facility was having difficulty managing her behaviour and providing care. The conditions attached by YHV to the approval included the provision of support to assist LXN with personal care, the provision of equipment to manage her care and her referral to palliative care services.

12. YHV has further stated that on 23 December 2015 she relinquished LXN's bed at the aged care facility as she was satisfied that the accommodation provided at her home was appropriate. She does not anticipate any further change in her accommodation needs. On that basis YHV has suggested that there is no further need for the Public Advocate to remain as guardian in relation to accommodation issues.

13. YHV has also stated that LXN is regularly visited by the Royal District Nursing Service and receives support from the Southern Palliative Care Services to manage her health care while Anglicare provides a home support package for her personal care. She also sees Dr CJ. YHV has not been called upon to make any decisions in relation to health care since LXN left the aged care facility. On that basis she is satisfied that her health care needs are being met and she does not see the need for the Public Advocate to remain as guardian in relation to health care issues.

14. YHV also stated that the majority of work she had done in relation to LXN concerned lifestyle issues, and in particular, contact with her children. In the opinion of YHV, there is serious and ongoing family conflict between LXN's children. She reported that there was "tremendous distrust amongst family members". She also reported that the conflict involves issues around money.

15. YHV described the difficulties she had experienced in arranging visits for LXN's two daughters, BIA and GWQ. She believed that there was a risk that MGE would refuse to allow his two sisters to visit their mother if he considered that there was a risk of her becoming unsettled because of their visit. She also referred to previous difficulties that had arisen at the aged care facility in relation to visiting arrangements. It had been necessary for YHV to negotiate so as to ensure that the wish of LXN that she should see all of her children was respected.

16. A further issue reported by YHV in her affidavit was that, in her opinion, there were difficulties with the children of LXN communicating with each other. MGE communicated important information about his mother by SMS or text message to his sister GWQ. The two daughters did not consider this system of providing information about their mother to be adequate and they also expressed concerns that they were not receiving complete information. YHV had dealt with that issue by authorising the RDNS to provide information directly to GWQ.

17. YHV expressed the view that she did not consider that the parties could manage access arrangements without the involvement of a guardian. She also considered that the appointment of a guardian was necessary so as to ensure that there continued to be independent support services involved in the care of LXN. The involvement of the Office of the Public Advocate had provided independent oversight so as to ensure that LXN's needs were being met.

18. QOS and MGE (and also TJF) relied primarily on the written submissions prepared for them by their former solicitor Ms Julie Russo of Ouwens Lawyers although she did not appear at the internal review hearing. Ms Russo noted that since the hearing on 24 August 2015, while LXN continued to reside in the aged care facility, she had been admitted to Flinders Medical Centre on four separate occasions. She had also been admitted to the Noarlunga Hospital or the Repatriation Hospital after being discharged from the FMC. Ms Russo's clients considered that the constant moving between hospitals and was detrimental to LXN.

19. Ms Russo's submission also referred to the fact that LXN had returned to live in her family home with the consent of YHV on behalf of the Public Advocate. That had occurred after the completion of an assessment by an occupational therapist and with the assistance of a residential aged care liaison nurse. Following a trial of the home care arrangements, LXN's accommodation at the aged care facility was cancelled. Anglicare Home Services attend upon LXN at her home three times each week for one hour to assist her with personal hygiene tasks. This service has been organised and paid for by MGE. He has also met the cost of providing his mother with a number of significant items of personal care equipment, including an electric bed, a wheelchair and so forth. The submission also noted that LXN has suffered fewer health problems since returning home. That point was also emphasised by MGE and QOS in their oral submissions.

20. Against that factual background Ms Russo then went on to submit that the Tribunal had made several errors of law in arriving at the decision under review. It was suggested by Ms Russo that the Tribunal had failed to consider the possibility of a limited appointment as guardian or as administrator, failed to have regard to the criteria for determining the suitability for appointment of an alternative administrator and guardian, failed to consider whether the potential appointee would be competent to discharge the functions of guardian or administrator, failed to consider the least restrictive means available and the current wishes of LXN and failed to consider a limited guardianship order. There were also further submissions that tended to suggest that the applicants for internal review had been denied procedural fairness by not being given sufficient opportunity to discuss their proposals and to raise the possibility of the appointment of an alternative administrator due to misleading information provided by SACAT staff. Ms Russo also proposed that an accountant in private practice, ZZW of an accounting firm, should be appointed as the administrator and that if MGE and QOS are not to be appointed as sole guardians they should be appointed jointly with the Public Advocate.

21. MGE and QOS alleged in their oral submissions that MCD, the daughter of GWQ, had borrowed from her grandparents and not repaid the sum of $20,000. QOS, as the donee of a power of attorney from TJF, has instituted proceedings in the Magistrates Court to recover that alleged debt. MGE and QOS have also alleged that cash and valuables had been taken from LXN's safe and that LIA owed $114,000 to her parents in relation to the sale of a houseboat.

22. Written submissions were received from GWQ, BIA and VSD. Brief supporting statements were also provided by OUK, the husband of GWQ, and JZQ, the husband of BIA. JZQ also made brief oral submissions. The submissions made by GWQ and BIA referred in considerable detail to the history of conflict within the family concerning the arrangements surrounding LXN and also in relation to other matters. They made clear their opposition to both the appointment of MGE and QOS as guardians and the appointment of ZZW as administrator. The submission by VSD was consistent with that of his sisters.

23. GWQ and BIA have opposed the appointment of MGE and QOS as guardians on several grounds. The fundamental point made in their submission was that because of the degree of hostility and lack of co-operation shown to them by MGE and QOS they considered that there would continue to be a high degree of family conflict if they were to be appointed as guardians. They also referred to the financial disputes amongst family members that I have noted at paragraph 21 above.

24. Mr Peter Womersley appeared as the separate legal representative for LXN. Unfortunately, he was not able to obtain instructions from her due to her mental incapacity. MGE and QOS complained that Mr Womersley should have visited their mother at a time when she was in a better mental state. However, she was "having a bad day" on each of the occasions when it would have been possible for Mr Womersley to see her. Nevertheless, in his capacity as a separate legal representative Mr Womersley was entitled to, and did, make submissions based on his independent assessment of what he considered to be in the best interests of LXN. He submitted that the Public Advocate should continue as guardian and the Public Trustee as administrator. The basis for his submission was the level of conflict between family members. He also noted that if further funds were to be needed to care for LXN in the future, it may prove necessary for a property in which she has a 20% interest as joint tenant to be sold. That may give rise to further disputation and a conflict of interest because MGE and his two sons are co-owners of that property.

25. I consider that the Tribunal clearly reached the correct decision in finding that LXN suffers from a mental incapacity and that the appointment of a guardian and administrator is necessary.

26. All persons concerned appear to accept that MGE and QOS and their wives are caring appropriately for LXN. They also accept that the home care arrangement has enhanced her health and general welfare and that she much prefers to be at home. I also note that MGE has made significant contributions towards the cost of caring for his mother at her home.

27. It is important to distinguish between the role of a carer and that of a guardian. The role of the guardian is focussed upon the making of significant decisions that the protected person cannot make for themselves due to a mental incapacity. This includes decisions about matters such as health care, lifestyle and accommodation. In contrast, carers provide day to day assistance (and often, as in this case, assistance that is of very great importance to health and welfare) but are not entitled to make significant decisions on behalf of the protected person. Unfortunately, the submissions made by Ms Russo largely focussed on care issues and, in my opinion, failed to recognise sufficiently the different role of a guardian.

28. I find that there is a very high level of conflict amongst family members and that the conflict is entrenched. That was manifestly clear from both the various written submissions and the oral submissions. I accept the assessment of YHV that the continuing involvement of the Office of the Public Advocate is required so as to ensure that all of those of LXN's children who wish to have access to her are given that opportunity and are also kept informed about her well-being. I consider that the Tribunal reached the correct or preferable decision by finding that the degree of intra-familial conflict and its entrenched nature requires the appointment of an independent decision-maker in the form of the Public Advocate so as to ensure that decisions are made in the best interests of LXN without regard to the deep-seated personal animosity amongst the two groups of siblings. I therefore consider that the decision to appoint the Public Advocate as guardian of LXN was the correct or preferable decision within the meaning of s 70 of the SACAT Act. I do not consider that the joint appointment of MGE and QOS as joint guardians with the Public Advocate would resolve the family conflict issues.

29. YHV has recommended that the role of the guardian should be limited to lifestyle issues. In light of her evidence and the other uncontested evidence, I accept the correctness of her view that health care and accommodation issues have been resolved satisfactorily. There is no further need for the guardian to deal with those matters. I will therefore vary the order under review to provide that the power of the Public Advocate as guardian is limited to lifestyle issues. Save for that amendment, I dismiss the application for internal review insofar as it relates to the appointment of the Public Advocate as guardian.

30. I now turn to the appointment of an administrator. TJF, MGE and QOS have proposed the appointment of an accountant, ZZW. Ms Russo did not provide any reasons for that appointment in her written submission. QOS and MGE suggested at the hearing that they did not have confidence in the ability of the Public Trustee to manage properly their mother's financial affairs and, in particular, they were not satisfied as to the willingness of the Public Trustee to pursue debts allegedly owed to their mother by other family members. They also complained that the Public Trustee had not become involved in the payment of accounts and so forth on behalf of LXN. In the course of the hearing Ms Ewing suggested that they should inform the appropriate officer of the Office of the Public Trustee about their particular concerns so that they can be addressed. That suggestion was appropriate. This particular complaint does not provide a ground not to appoint the Public Trustee.

31. While it is a matter solely for the Public Trustee and her staff to decide once they have all the relevant material and have heard the competing views, it would only be appropriate for legal action to be instituted to recover the debts allegedly owing to LXN if the Public Trustee is satisfied that any such proceedings had a proper foundation in both law and fact and have a reasonable prospect of success. The making of decisions about those matters is not within the jurisdiction of the Tribunal.

32. I note that JZQ suggested in his written submission that ZZW might be vulnerable to undue influence by QOS and MGE. Due to the absence of any relevant evidence, I make no finding on that question.

33. While I have no reason to doubt the competence of ZZW as an accountant, there was no evidence before the Tribunal to demonstrate his knowledge about the role of the administrator of the estate of a protected persons. No substantive reason has been advanced as to why the Public Trustee should cease to be the administrator. It has therefore not been necessary to require further evidence about the appropriateness of ZZW's appointment as administrator. I am not persuaded that the appointment of the Public Trustee was not the correct or preferable decision.

34. I dismiss the application for internal review in all respects but, as I have noted at paragraph 29, I will amend order 1 of the guardianship orders to provide that the power of the Public Advocate is to be limited to lifestyle issues. I will also set aside order 3 of the administration order, which required the Director of Nursing at LXN's former aged care facility to communicate with the Public Trustee, as that order is no longer applicable now that LXN has returned home.