B (Administration) (Guardianship)

[2009] TASGAB 19

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

B for Review of Administration Order

Neutral Citation: B (Administration) (Guardianship)  [2009] TASGAB 19

REASONS FOR DECISION

Anita Smith (President)
Marguerite Lester (Member)
Kate Brown (Member)

Administration – review of administration – disability and incapacity – effect of third party on represented person’s interview with assessing medical practitioners – suitability of the Public Trustee for appointment – internal allocation within Public Trustee not a matter for the Board
Guardianship – third party intervening to prevent assessments of represented person’s safety in the home - need for a guardian
Guardianship and Administration Act 1995 ss 20, 21, 51, 51, 54, 67

1. The Public Trustee was appointed as the administrator for the represented person, B, on 16 June 2006.  Reasons for that decision are recorded in B (Review Enduring Powers) (Guardianship) [2006] TASGAB 7. That administration order expired after three years pursuant to section 52 of the Guardianship and Administration Act 1995. On 2 June 2009 the Public Trustee applied for a review of the administration order pursuant to section 67 which was heard on 12 June 2009 and 18 September 2009. On both occasions, the represented person was legally represented and assisted by the services of an interpreter.

2. Section 67 of the Act does not specify grounds for review. However the Board reviews whether the existing appointment continues to meet the tests in section 51 of the Act. Therefore, to continue the order, the Board must be satisfied that the represented person is a person with a disability, that her disability renders her incapable of making reasonable judgments and that she is in need of an administrator. The Board also assesses the ongoing suitability of the administrator against criteria in section 54.

   Is the represented person a person with a disability?

3. In its 2006 decision, the Board accepted opinions which stated that the represented person has dementia.  Shortly prior to the review hearing, Dr Mieczyslaw Kulinski, a general practitioner assessed on 10 June 2009 that the represented person does not have a disability.   Dr Andrew Maclaine-Cross also supplied a letter dated 21 April 2009 where he indicated that the represented person has normal cognitive function, personality and behaviour.  The represented person, through her representative agreed with these assessments. 

4. Because these reports were so at odds with previous reports to the Board, the hearing was adjourned to enable the represented person’s legal representative to obtain a specialist’s report.  She subsequently submitted a report by Associate Professor Clive Skilbeck who reported to the Board on 6 September 2009 that the represented person has cognitive deficits which result in severe memory deficits and compromise her functioning.  Such an opinion entitles the Board to conclude that the represented person experiences a “restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner.”

5. The Board accepts Associate Professor Skilbeck’s opinion over Dr Kulinski’s and Dr Maclaine-Cross’ for a range of reasons.  Firstly, all opinions were supplied to the Board by the represented person’s representative which suggests some level of approval for the contents of all reports.  Secondly, Associate Professor Skilbeck is a clinical neuropsychologist and is the most suitably qualified to administer the tests and analyse their results.   Thirdly, the Board believed it to be highly likely that the represented person was accompanied in all other consultations by Mrs H-C and this may influence both the represented person’s performance in assessment and the assessor’s access to information.  Finally, the Board noted that Associate Professor Skilbeck, unlike other authors, had the assistance of all prior medical reports and the Board’s earlier decision before making his conclusion.

6. The Board was satisfied that the represented person has a disability within the meaning of section 3 of the Act.

   Does the represented person lack the capacity to make reasonable decisions?

7. In line with his comments upon a lack of any disability, Dr Maclaine-Cross believes the represented person to be capable of managing her own affairs.  He also acknowledges that a number of his observations were reported by Mrs H-C.   Similarly, Dr Kulinski completed a standard form Health Care Professional Report where he indicated that in all relevant respects, the represented person’s capacity for decision making is normal.  He states that she was temporarily unable to manage her own affairs while she was being administered antipsychotic medication but once this ceased she returned to normal functioning.

8. By contrast, Associate Professor Skilbeck reported that an examination of the represented person’s memory functions generally yielded very low results.  Appropriately translated verbal learning tests showed a limited capacity for learning and the represented person was not oriented to time.  He reported ‘severe impairments in both verbal and non-verbal modalities.’ 

9. Associate Professor Skilbeck set out the method of testing and analysis for his conclusions.  His findings are empirically based and logical.  He interviewed the represented person with the assistance of an interpreter and without the attendance of Mrs H-C.  The Board believes that this testing environment and procedure, in comparison to those employed by Dr’s Maclaine-Cross and Kulinski, was appropriate.

10. The Board noted on the two hearing dates that the represented person is ‘at sea’ when Mrs H-C is not in attendance.  When she is in attendance, Mrs H-C tends to answer or attempt to answer questions on behalf of the represented person.  This prompting and support by Mrs H-C may have lead other medical practitioners to assess the represented person’s abilities at a higher level than Associate Professor Skilbeck.

11. The Board notes that the represented person’s legal representative conceded that the represented person requires assistance at times, especially to administer her estate. 

12. The Board accepts Associate Professor Skilbeck’s opinion as evidence that the represented person continues to lack the capacity to make reasonable judgments about her estate and, in some respects, about her personal and circumstances.

    Is there a need for an administrator?

13. The represented person has a significant amount of funds invested with the Public Trustee and owns a property in Northern Tasmania which also has significant value.  She retains an investment in debentures. 

14. The Board is satisfied that the represented person has a significant, though not complex, estate and is in need of an administrator. 

    Is the Public Trustee suitable for reappointment?

15. Because of the structure of the section, the Board does not need to assess the suitability of the Public Trustee against criteria in section 54 but may assume that it is a suitable administrator. However, Mrs H-C and the represented person’s legal representative stated that the represented person does not wish to have the Public Trustee re-appointed as her administrator and would prefer the appointment of Tasmanian Perpetual Trustees. (Tasmanian Perpetual Trustees are deemed equally suitable as the Public Trustee under section 54.) The Board must balance these wishes against her best interests and the alternative which is least restrictive of her freedom of decision and action.

16. The Public Trustee’s report, which was provided for the review, showed a history over three years of Mrs H-C attempting, in various ways, to wrestle control of parts of the represented person’s estate away from the Public Trustee supposedly on the represented person’s behalf. 

17. It is clear that Mrs H-C deeply mistrusts the Public Trustee as administrator because she fundamentally misunderstands their role.   To this end she handed to the Board a bound document with various accounts and records of financial matters.  However the majority of documents pre-dated the administration order or were otherwise irrelevant to the proceedings at hand. The Board believes that the stated wishes of the represented person are highly influenced by Mrs H-C’s view. 

18. In the review hearing, the Board noted the represented person’s reliance upon Mrs H-C for all matters even though she was legally represented.  Mrs H-C insisted that she and the represented person frequently have differences of opinion.  Ironically, she then instructed the represented person, in rather forceful tones, to confirm this to the Board.  The represented person disagreed, appearing confused about what was happening.

19. The Board suggested to those present at the hearing that Tasmanian Perpetual Trustee’s fees are approximately three times as much as the Public Trustee’s fees (this figure being derived from fee structures published in the Board member’s manual).  Mrs H-C said that Tasmanian Perpetual Trustees had not explained their fee structure to her.  The represented person did not express a view about whether she wanted Tasmanian Perpetual Trustees appointed if they cost three times more. 

20. The Board was satisfied that the appointment of the Public Trustee remained appropriate to protect the represented person’s best interests, even though it conflicted with her stated wishes.  The Board believes that the represented person is highly susceptible to Mrs H-C’s influence and that if Mrs H-C did not have such a problem with the Public Trustee, then the represented person would not either.  On the other hand, the Public Trustee has played an important role in ensuring that Mrs H-C’s influence on the represented person’s property is limited to controlling the pension income and having family members as gratis (or nominal rent) tenants in the represented person’s home. The history of Mrs H-C’s role in diverting the represented person’s pension from the Public Trustee and arranging tenants is detailed in the previous decision of the Board and the Public Trustee reports.  The Public Trustee is also substantially less expensive than Tasmanian Perpetual Trustees.

21. Finally, the represented person’s legal representative explained that if the Public Trustee was reappointed, it was specifically requested that an alternate manager be appointed to the file.  The Board declined that request as it considered it a matter of internal work allocation for the Public Trustee.  There would be, in the opinion of the Board, considerable benefits for the represented person in having stability in the management of the file and given that the current account manager has been administering the estate for 3 years, it may be in the represented person’s best interests that he should continue. 

    Is the represented person in need of a guardian?

22. In the adjournment between the two hearings, the Board obtained a report by Family Based Care which is an organisation that provides 5 hours per fortnight personal care for the represented person.  That report detailed an attempt by that organisation to have the represented person’s home assessed by an Occupational Therapist with regard to the suitability of its facilities for showering.  This attempt was thwarted by Mrs H-C who refused permission for the assessment until they had obtained legal advice.  Mrs H-C insisted that this refusal was at the represented person’s request because she is such a private person. 

23. The report shows, in stark relief, the conundrum that faces the Board throughout this case.  That is that Mrs H-C provides a level of care that appears to be adequate and which the represented person appears to prefer.  However, Mrs H-C’s level of suspicion of others and control over the represented person are extremely high.  

24. At the same time, the represented person performs poorly in Board hearings.  The Board receives other reports (for example from Dr Maclaine-Cross and Dr Kulinski) which suggest that she performs better in other circumstances, probably when Mrs H-C is available to compensate for her difficulties.  In Board hearings the represented person appears helpless and highly dependent, at the same time as Mrs H-C appears to be suspicious and controlling.  It is an unusual relationship dynamic and obviously Board hearings do not show it at its best.  In any event, communication regarding a refusal to allow an occupational therapist to assess the home came from Mrs H-C. 

25. The Board took into account the represented person’s wish to remain living in her own home.  The provision of personal care to the represented person is a key part of maintaining her independence in her own home and, if it is compromised, might mean she is admitted to a nursing home earlier than necessary.  Therefore, whether the refusal to allow an assessment by an occupational therapist resulted from the represented person’s own wishes for privacy or the intervention of Mrs H-C, it is not a reasonable decision and is not consistent with her freedom of decision and action, her broader wishes to remain at home or her best interests.  Therefore the Board believed that the appointment of a guardian to address the long term suitability bathroom facilities (together with the powers of an administrator to pay for any adaptations) is needed.

    Conclusion:

26. The Board considered that it was appropriate to reappoint the Public Trustee as administrator for the represented person and to make a limited appointment of the Public Guardian as her guardian.

    The Board was satisfied that the represented person

• is a person with a disability, and

• is unable by reason of the disability to make reasonable judgements in respect of her estate, and her person and circumstances

• is in need of an administrator and a limited guardian;

  THE BOARD ORDERS

1. That The Public Trustee continue as the represented person’s administrator.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

   3.        That the administration order remains in effect until 17 September 2012.

3. That the Public Guardian be appointed as the represented person’s guardian.

4. That the powers and duties of the guardian are limited to decisions concerning consent to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment, including but not limited to authorising an Occupational Therapist’s assessment of the represented person in her home and authorising follow up of any recommendations made in the assessment.

   6.        That the guardianship order remains in effect to 17 September 2010.

   ..............................

   Anita Smith                

   PRESIDENT