BFC (Guardianship and Administration)
[2017] TASGAB 12
•10 July 2017
GUARDIANSHIP AND ADMINISRATION BOARD
HOBART
BFC (Guardianship and Administration) [2017] TASGAB 12
REASONS FOR DECISION
Rowena Holder (President)
Susan Aylett (Member)
Muriel Rollins (Member)
Date of hearing: 10 July 2017
Guardianship and Administration – eligibility of potential administration and guardian – conflicting views of family – wishes of the proposed represented person
Guardianship and Administration Act 1995 s. 6, 20, 21, 54
On the 10th July 2017 the Guardianship and Administration Board (the Board) heard an application for administration and guardianship for BFC (‘the proposed represented person’). The Application was filed by UMC, brother to the proposed represented person seeking that he be appointed guardian and administrator for the proposed represented person.
The proposed represented person’s daughter, LC has requested a Statement of Reasons in relation to the Board’s decision.
The proposed represented person was given notice of the application and attended the hearing on 10 July 2017. The following persons also attended the hearing:
· UMC, Applicant and brother
· LC, daughter
· NC, brother
· KT, sister
· IM, sister
· CC (observer)
· Di Shepherd, representing the Office of the Public Guardian
· Emma Curbishley, representing the Public Trustee
LC attended by telephone as she was in South Australia, while all other attendees were in person.
The Board had the following documents before it:
· Application for Guardianship & Administration dated 17 April 2017
· Medical report from Dr Keith Barnes dated 17 May 2017
· Aged Care Record dated 26 August 2009
· Bank report from AMP
· Written submission from LC dated 15 June 2017
· Written submission from KD, former partner dated 6 July 2017
When the Board assesses an application for the appointment of a guardian and an administrator it needs to be satisfied of the matters in sections 20 and 51 of the Guardianship and Administration Act 1995 (the Act), that the proposed represented person:
a) is a person with a disability, and
b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances, or in respect of matters relating to all or any part of his estate
a) is in need of a guardian and/or an administrator.
The Board must also balance the principles in section 6 of the Act, which include the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; the best interests of and the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.
Is the proposed represented person a person with a disability?
In respect of the proposed represented person Dr Keith Barnes, a general medical practitioner, provided a Report to the Board dated the 17 May 2017. Dr Barnes noted that “This patient has been a patient of mine for a number of years. He has a past history of myocardial infarction with cardiac arrest and subsequent brain damage to his frontal lobes.” Dr Barnes’ evidence was unchallenged at the hearing and no other medical evidence was provided to the Board. The Board is satisfied that the proposed represented person is a person with a disability within the meaning of the Act.
Is the proposed represented person incapable by reason of his disability of making reasonable judgements in respect of all or any matters relating to his person or circumstances and/or matters relating to all or any part of his estate?
In the same report noted above, Dr Barnes indicated that the proposed represented person has been quite incapable because of his medical condition to look after any aspect of his personal wellbeing. Dr Barnes reported he has “no capacity or understanding of any financial matters and has no capacity to organize his personal care and living arrangements. There is no prospect of his changing from his current arrangement.”
Dr Barnes’ evidence was unchallenged at the hearing and no other medical evidence was provided to the Board as to capacity. The Board was satisfied that the proposed represented person is incapable of making reasonable judgements about his person and circumstances and his financial situation.
Is the proposed represented person in need of a guardian and an administrator?
10. The Board received evidence that the proposed represented person had been a resident at Presbyterian Care Tasmania, Legana since 22 September 2009. He has resided in a secure unit since his admission. The Applicant stated at hearing that he didn’t believe the proposed represented person should be in a secure unit within the aged care facility but instead the non-secure area appeared more appropriate. LC also indicated she was agreeable to there being “a reassessment” but did note there had been a history of the proposed represented person wandering and escaping.
11. During the hearing, LC indicated that she would like to move her father to a nursing home close to where she lived in South Australia. LC indicated she wanted to provide support to her father and wanted her father close by so she and her children could spend time with her father “whenever I like”. LC indicated that she had spoken to nursing staff in Tasmania and also to an aged care residence, where LC lives and believed relocating her father was a feasible option. She indicated she had not been able to speak to her father’s GP, despite attempts to contact him.
12. The proposed represented person indicated he wanted to remain living in Tasmania and that his current accommodation was “good” and “I am happy here”. While having spent some time previously in South Australia and Sydney he indicated: “I returned to Tasmania because my family is here and Mum and Dad are buried here.” LC, after hearing what her father said acknowledged: “He is happy. He is settled, he knows his routine. He goes on outings” but then added “Either way someone is going to move him.” When asked what she meant by this comment she indicated she understood the family in Tasmania were trying to move her father to another aged care facility in Tasmania. The proposed represented person’s sisters then indicated that they had to travel “40 minutes across town from Norwood” to see the proposed represented person. They said if he was moved to Norwood they could see him more often as they both only lived 5 minutes away.
13. LC confirmed that if she was appointed guardian she would move her father as “I would like him here with me”. The Applicant indicated if he was appointed guardian then he would find out his brother’s wishes and he “would have a say”. The Applicant stated “It has been clear in his answers he likes it at Presbyterian Care Tasmania, Legana. He likes the people there. He feels secure there. There for 8 years, same process and same people….It is his call”
14. The Board determined that the proposed represented person is ‘in need of a guardian’ to make accommodation decisions. The guardian will need to consider whether the proposed represented person’s current accommodation in a secure unit is still appropriate and if so to ensure that his detention in a secure facility promotes his personal safety and is applied in the least restrictive manner as is possible.
15. The Board heard evidence that dental and healthcare decisions needed to be made for the proposed represented person. The Board therefore determined that there is a need for a guardian to make healthcare decisions.
16. There was no dispute at the hearing that the proposed represented person needed an administrator. His former partner had been making decisions on his behalf in respect of financial matters on an informal basis since his cardiac arrest in 2007. His former partner has now partnered. All those present at the hearing including the proposed represented person indicated a preference that the informal arrangement cease. The Board therefore determined that there was a need for the appointment of an administrator.
Eligibility of potential guardian and administrator
17. The applicant nominated himself as the prospective guardian and administrator for the proposed represented person. LC also indicated she wished to be her father’s guardian and administrator. The proposed represented person’s former partner also wrote to the Board and indicated she would continue on as she has in the past if appointed.
Sections 54(1)(d) and 54(2) of the Act provide as follows:
The Board may appoint as an administrator of the estate of a proposed represented person –
(d)any person including the guardian of the proposed represented person who consents to act as administrator if the Board is satisfied that -
(i)the person will act in the best interests of the proposed represented person; and
(ii)the person is not in a position where his or her interests conflict or may conflict with the interests of the proposed represented person; and
(iii)the person is a suitable person to act as the administrator of the estate of the proposed represented person; and
(iv) the person has sufficient expertise to administer the estate.
In determining whether a person is suitable to act as the administrator of the estate of a proposed represented person, the Board must take into account –
(a)the wishes of the proposed represented person, so far as they can be ascertained; and
(b)the compatibility of the person proposed as administrator with the proposed represented person and with his or her guardian, if any.
18. During the course of the hearing, the proposed represented person stated a number of times that he wanted the Applicant to be his administrator and indicated he is quite “capable” of performing this role. The Board gives weight to the clear wishes of the proposed represented person. The applicant is a financial planner. He has been in this line of work for 25 years. He clearly has sufficient expertise to administer the estate of the proposed represented person. He is able to meet the reporting requirements of the Act. He has indicated his willingness to provide the Board with a police check.
19. The Applicant lives in Tasmania and is able to travel to see his brother. His appointment is supported by his siblings and his sisters in particular are willing to facilitate his decisions by purchasing required items for the proposed represented person and getting him to appointments.
20. In relation to guardianship, Section 21 of the Act states:
Persons eligible as guardians
(1) The Board may appoint as a full guardian or limited guardian any person who is of or over the age of 18 years and consents to act as guardian if the Board is satisfied that that person –
(a) will act in the best interests of the proposed represented person; and
(b) is not in a position where the person's interests conflict or may conflict with the interests of the proposed represented person; and
(c) is a suitable person to act as guardian of the proposed represented person.
(2) In determining whether a person is suitable to act as a guardian of a represented person, the Board must take into account –
(a) the wishes of the proposed represented person so far as they can be ascertained; and
(b) the desirability of preserving existing family relationships; and
(c) the compatibility of the person proposed as guardian with the proposed represented person and with the administrator (if any) of his or her estate; and
(d) whether the person proposed as guardian will be available and accessible to the proposed represented person so as to fulfil the requirements of guardianship of that person.
21. The proposed represented person indicated that he would like to make his own decisions. When asked who he would like to have as a guardian, if a guardian was appointed, he indicated his sister KT. KT however did not seek appointment. The proposed represented person indicated he didn’t want his daughter to be appointed as guardian as she was in another state and emphatically stated he did not want to relocate.
22. The Board carefully weighed up the factors set out in Section 21. The Board determined that the Applicant would act in the best interests of the proposed represented person and consider his wishes and be suitable for appointment.
Conclusion
After hearing an application for a guardianship order in respect of BFC (hereinafter called the ‘represented person’)
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 his person and circumstances; and
•is in need of a limited guardian;
THE BOARD ORDERS
That UMC be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to decisions concerning:
(i)where the represented person is to live whether permanently or temporarily and
(ii)consent to any health care that is in the best interests of the represented person and to refuse or withdraw or consent to any such treatment.
That the order remains in effect to 9 July 2017.
After hearing an application for an administration order in respect of BFC (hereinafter called the ‘represented person’)
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 his estate; and
•is in need of an administrator
THE BOARD ORDERS
That UMC be appointed as administrator of the estate of the represented person.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That the order remains in effect until 9 July 2020
Rowena Holder Susan Aylett Muriel Rollins
PRESIDENT MEMBER MEMBER
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