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

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.
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?
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.
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.”
The Board accepts Associate Professor Skilbeck’s opinion over Dr Kulinski’s and Dr Maclaine-Cross’ for a range of reasons.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading B (Administration) (Guardianship)

Details

AGLC: B (Administration) (Guardianship) [2009] TASGAB 19
Case: [2009] TASGAB 19
Decision Date: 18 September 2009

CaseChat Overview and Summary

The case involved a review of the administration order for a represented person, B, who had dementia and required an administrator to manage her estate. The Public Trustee was appointed as the administrator in 2006, and the order was set to expire in 2009. The Public Trustee applied for a review of the administration order, which was heard on two occasions in 2009. The Board was required to determine if the represented person had a disability, lacked the capacity to make reasonable decisions, was in need of an administrator, and if the Public Trustee was suitable for reappointment. Additionally, the Board had to decide if a guardian was needed to protect the represented person's interests.

The Board concluded that the represented person had a disability, specifically dementia, and lacked the capacity to make reasonable decisions about her estate and personal circumstances. Although there were differing medical opinions, the Board found Associate Professor Skilbeck's report to be the most credible, as he was a clinical neuropsychologist and had access to all prior medical reports and the Board's earlier decision. The represented person was in need of an administrator due to her significant estate, and the Board found the Public Trustee to be suitable for reappointment, despite the represented person's preference for another trustee. The Board believed that the Public Trustee was best suited to protect the represented person's best interests, as they had limited the influence of a third party, Mrs H-C, who had attempted to control parts of the represented person's estate.

Finally, the Board determined that a guardian was needed to protect the represented person's interests. The represented person had refused an occupational therapist's assessment of her home, which was necessary for her to maintain independence and avoid earlier admission to a nursing home. The Board found that this decision was not consistent with her best interests and appointed the Public Guardian as her guardian with limited powers.

The Board ordered that the Public Trustee continue as the represented person's administrator until September 2012, and that the Public Guardian be appointed as her guardian until September 2010. The Public Guardian's powers and duties were limited to decisions concerning consent to any health care in the represented person's best interests and authorising an Occupational Therapist's assessment of the represented person in her home.

Orders