BN (Review Enduring Guardian and Guardianship)
[2013] TASGAB 21
•20 September 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
BN – Application by KN to review an enduring guardianship and an application for guardianship
BN (Review Enduring Guardian and Guardianship) [2013] TASGAB 21
REASONS FOR DECISION
Anita Smith (President)
Kim Barker (Member)
Catherine Gavan (Member)
Date of hearing: 20 September 2013
Review of an enduring guardianship – validity of instrument of appointment – mental capacity to execute an enduring guardianship – appointor with a 3 year history of consistent and significant cognitive deficits due to dementia - distinction between capacity and the ability to express wishes
Guardianship – eligibility of person nominating for appointment of guardian – an agent of conflict with family and care staff unsuitable for appointment – preservation of existing family relationships - a person who would be perceived to favour one side of family conflict over the other may have the effect of continuing and exacerbating the conflict
Guardianship and Administration Act 1995 s.20, 21, 34
BN (‘the appointor’) is an 85 year old man. The applicant, KN, is one of his two daughters. On 26 July 2013 BN purportedly executed an Instrument Appointing an Enduring Guardian in favour of MN and QDT as his guardians and BDT as an alternative guardian (‘the instrument’). MN is BN’s other daughter, QDT is her ex-husband and BDT is their son. The review was sought on two grounds: firstly that the appointor did not have capacity to understand the nature and effect of the instrument at the time of appointment and, secondly, that the enduring guardian has not acted in the best interests of the appointor, or has acted in an incompetent and negligent manner, or has acted contrary to the provisions of the Guardianship and Administration Act 1995 (the Act). The applicant also sought the appointment of a guardian within that application.
Although the validity of the instrument has been impugned, for ease of reference in this decision, the Board will refer to BN as ‘the appointor’ not ‘the purported appointor,’ to the purported instrument as ‘the instrument’ and to the purported guardians as ‘the guardians’.
On 23 August 2013 XXXX applied for an emergency order because QDT had taken the appointor on leave on 20 August 2013 and was declining to return him to the facility. QDT had voiced an intention to take the appointor to Adelaide for the weekend. The application for an emergency order noted the appointor’s lack of cognitive capacity, a current physical condition which required monitoring and treatment, and a background of family conflict. The President made an emergency order on that date which suspended the operation of the enduring guardianship and appointed the Public Guardian as guardian limited to decisions about where BN shall live temporarily or permanently and section 28 powers to enforce the guardian’s decision.
The application was heard on 20 September 2013 and the following persons attended (with reference to their relationship to the appointor):
·ON – his wife
·KN – his daughter and the applicant
·UX – son in law, husband of KN
·MN – daughter and purported enduring guardian
·QDT – former son-in-law and purported enduring guardian
·BDT – grandson and purported alternative enduring guardian
·Richard Howroyd – solicitor representing the purported enduring guardians
·WT – witness to the instrument
·GX - XXXX
·Michael Condon – Office of the Public Guardian
·Elizabeth Dalgleish – GAB Investigator
With the agreement of the parties, the Board commenced the hearing by examining the question of the appointor’s capacity at the time of execution.
Medical evidence of capacity:
The guardians confirmed that at the time of execution of the instrument, they did not have any independent medical assessment of BN’s capacity to understand the nature and effect of the instrument.
A report by Dr. Alison Cleary dated 2 September 2013 provided historical notes to the effect that the appointor “… has had a cognitive decline since approx. 2010 with poor insight, impulsiveness, mood volatility and has been a safety risk in the home.”
An assessment by the Aged Care Assessment Team (ACAT) on 30 August 2011 noted the appointor’s primary diagnosis as “Dementia”. A MMSE assessment that day recorded a score of 24/30 which indicates significant impairment. At that time he needed supervision with medication and alcohol consumption, had a history of wandering and becoming lost when out walking (sometimes requiring assistance of Police to find him and return him home). He experienced occasional visual hallucinations.
Dr. Frank Nicklason, Geriatrician, assessed the appointor on 30 November 2011. He noted that the appointor had a dementing illness with considerable cognitive dysfunction. During assessment he noted that the appointor “was only able to remember one of three objects after an interrupting task. He was disorganised with the clock drawing test. He was not really able to make the distinction between a “mistake” and a “lie” and was not able to do the number trail test.
On 10 July 2013 the appointor was assessed by Dr. Michael Tooth. His notes of that assessment record:
“Needs letter to solicitor to say that he is fit to give permission for affairs to be looked at. Solicitor reluctant to act without it. (Seems some dispute about previous agreements about property within family.)
Knows suburb, but no part of date
Told year but some minutes later no idea [1952?] - don’t know
Several other memory and simple additions but nil correct
Is unaware of the problems that the family is having and was unable to explain them to me
(Has been in XXXX home on several occasions but feels its not for him)
I do not feel that he is fit to make decisions about his finances
Reason for contact: Dementia”
Dr. Cleary interviewed the appointor on 2 September 2013. She administered a Montreal Cognitive Assessment on which he scored 7/30 indicating severe impairments across multiple domains. She concluded that he has a progressive vascular dementia with preserved social skills, but progressive language and dys-executive traits. She states “He has been previously assessed in 2011 and deemed to lack capacity for care and accommodation decision. His deficits today are now moderate to severe. … It is my opinion that he does not have capacity to make any appointments, and it would be seriously doubtful that he had capacity on the date of documentation.”
GX gave evidence at the hearing that at no stage during the appointor’s admission to XXXX had he shown any improvement in his cognition and it is not variable over time. That facility had conducted a Psycho-geriatric Assessment Scale for funding purposes at admission on which he scored 10, which indicated very poor cognitive functioning. In GX’s opinion, BN’s presentation on the day of Dr. Cleary’s assessment was consistent with each other day of his admission. Nursing notes for 22 July 2013 showed that the appointor was very confused, up and dressed ready to go out well before morning. This is apparently consistent behaviour. GX agreed that the appointor retains social and conversational skills and is physically fit.
KN gave evidence that, even in 2010, the appointor was severely disoriented to time and place. He would forget visits to his wife in hospital and set out to walk to the Royal Hobart Hospital from Molesworth (approx. 31 kms). She would have to retrieve him from his walks.
MN gave evidence that she has disagreed with Dr. Nicklason’s report since the time it was written and she objected to not being consulted about the appointor’s admission to XXXX. She believes that the appointor’s behaviour stems from ‘longstanding personality issues’ or ‘personality characteristics’ and she also believes that she is qualified to dispute the diagnosis because she is a trained psychotherapist. Both she and QDT are of the view that the appointor plays ‘games’ with people making assessments and actually has a higher level of functioning than he demonstrates on the tests. Ms. Mitchell noted that Dr. Nicklason did not take her views into account and did not accept her opinion.
MN admitted that the appointor has ‘quite severe memory loss’ and has lost a significant amount of mental capacity. She agreed that if she were to refer to a conversation (e.g. a conversation about which wine he prefers) half an hour later, he would not remember the conversation. She believes that he can state clearly what he wants and is able to take care of himself and conduct sensible conversations. She also believes that he is in very deep grief about his loss of autonomy, dignity and freedom and that his visits to QDT were an opportunity to regain his autonomy, dignity and freedom. She agreed that there had not been any change in his capacity since he signed the instrument and that it was unlikely that he would have recalled signing the instrument one week later.
QDT expressed a view that while in XXXX the appointor does not communicate properly, but outside of XXXX he ‘opens up’ and ‘has a lot of awareness’. QDT believes that he would recall signing the instrument so long as he was provided with prompts about other things that were occurring at that time. QDT disputed the medical opinions on the basis that they were assessments for other decision-making issues, such as finances.
WT said “he may not be cognitively functioning very well, but he does know what he wants.”
Evidence about the execution of the instrument:
ON had been the appointor’s carer prior to August 2009 when she had a stroke. Following the stroke, she was unable to continue caring for him and the applicant became his carer. The applicant and her husband built a unit on their property where both parents lived until ON had another stroke in late 2011. The appointor moved into XXXX Nursing Home in November 2011 following respite in the facility in October 2011 because the combined care needs of both parents were greater than the applicant could provide. He has lived there ever since. About four months ago, QDT became active in his life again.
For four months prior to August 2013, the appointor has been having overnight stays with QDT at his house in XXXX. It was during one of these visits that QDT and MN first discussed an enduring guardianship with him. The account given at the hearing of how the document came to be signed was a little confusing as MN often corrected QDT as he gave his account. However, it appears that the document was filled in on one occasion and signed on a second occasion about a week later after the guardians had all signed acceptance of the appointment. WT was present on the second occasion with the other witness.
QDT said that he had explained to the appointor that a guardian was “a person who can stand in his shoes and represent him in everything except his money”. MN said she also explained that it was “so that we can look into other alternatives of where he lives.” She said she told him “So, you would have to be sure that you are happy to do that.” She said his response was “QDT has always done the right thing by me and, yes, I would like him to do that.”
The appointor did not nominate any conditions of appointment. QDT initially said that conditions had not been discussed, but after being corrected by MN, to the effect that conditions were offered, he said “Yeah, I would have said that”. They then agreed that he was happy not to include conditions in the instrument. Neither explained to the appointor that, by signing the instrument, the appointor was removing decision making authority of ON or KN as persons responsible, because the guardians said they were not aware that they had any such authority. MN did not consider that he signed the document because he saw it as a means to leave XXXX.
WT, a friend of QDT’s said it was likely that he did not understand the form but, in her opinion, “he knew what it was about.”
Neither guardians had had any discussions about the instrument with the appointor since the instrument was signed. The Board noted that the appointor’s address on the instrument was incorrectly noted as QDT’s address, not XXXX. One consequence of this is that the appointor would not receive a copy of the document after registration as a reminder of the appointment. Another consequence of this is that XXXX staff, the appointor’s wife and the applicant were unlikely to be made aware of its existence after registration.
Conclusion about capacity:
The Board considered that the medical evidence overwhelmingly established that the appointor has experienced significant cognitive deficits since at least 2010 and that he would have had no memory of executing the instrument on 26 July 2013 even shortly after he did so. The Board’s view is that he would have had no capacity to understand the nature and effect of the document at the time of execution. The Board did not accept the views of the guardians and WT as evidence of capacity. The Board considers that they were all confusing his ability to consistently express wishes with having capacity to understand the instrument. The repeated expression of wishes is consistent with the medical evidence of the appointor’s repetitive conversations and retained social skills. The distinction between the capacity to make reasonable judgments and the ability to express wishes is clearly made out in the Act.
The Board was satisfied that the appointor did not have the mental capacity to make the appointment and therefore declared the instrument invalid. Because the Board declared the instrument invalid, it was not necessary to consider the second ground of the application, namely that the enduring guardian has not acted in the best interests of the appointor, or has acted in an incompetent and negligent manner, or has acted contrary to the provisions of the Act.
The appointment of a guardian:
The pro forma application for review of an enduring guardianship includes an application for the appointment of a guardian pursuant to section 20 of the Act. Additionally the notice of hearing reflected both kinds of application. The Board considered this application after the declaration of the invalidity of the instrument.
The medical reports noted above were relied upon as evidence pursuant to section 20(1)(a) and (b) of the Act. The Board offered an opportunity for parties to seek alternative medical opinion, but this was not sought by any party. Therefore, the Board was satisfied that the appointor is a person with a disability and by reason of that disability he is unable to make reasonable decisions about his person and circumstances.
The persons at the hearing agreed that the issues for which a guardian was needed are (i) to decide where the appointor lives temporarily and permanently and (ii) to decide the conditions related to his leave from his place of residence. On the basis of the application, the evidence at hearing and the written submissions received prior to the hearing, the Board was satisfied that the appointor is in need of a limited guardian for those matters and that the needs of the appointor cannot be met by other means less restrictive of his freedom of decision and action.
The applicant initially nominated herself as guardian in the application, but after taking legal advice she preferred the appointment of the Public Guardian. MN indicated that she did not have an objection in principle to the appointment of the Public Guardian but she wanted to ensure that decisions about leave were not excessively restrictive.
Initially, Mr. Howroyd stated that the three named guardians in the instrument sought appointment as guardians by the Board. The Board explained that the Act does not allow a facility for the Board to appoint multiple guardians except where the guardians have different functions. In this case the functions appeared indivisible. There was a brief adjournment after which BDT nominated himself as guardian. Mr. Howroyd indicated that QDT wished to be considered as an alternative.
QDT had been the agent of significant family disharmony and conflict with XXXX staff since his intervention in the appointor’s life four months ago. He had made substantial written submissions to the Board prior to the hearing, which the Board had read and considered. In the Board’s view, in his submissions and his evidence at the hearing he had expressed fanciful views about the appointor’s capacities and such views were unlikely to preserve existing family relationships and had the potential to undermine the appointor’s best interests. The Board did not consider it was necessary to hear from him further in respect of his nomination as guardian.
BDT told the Board that he could be a dispassionate guardian who could handle the conflict between members of his family given his close knowledge of them and his professional experience in methodical decision-making in his engineering career. The Board was impressed with his described approach to making a decision about accommodation. However, at the hearing GX gave an account of a conversation she had with BDT recently. It was clear from her account that she had difficulty in explaining her role and her concerns to BDT, who defended his parents against her statements which he viewed as accusations. In the hearing, he then re-iterated this defence of his parents. The behaviour described by GX and that demonstrated in the hearing caused the Board concern as it ran contrary to his assertions that he would be an impartial and dispassionate decision maker in the face of family conflict or conflict with XXXX staff.
The Board noted that significant family conflict has occurred prior to this hearing. The Board considered that KN and ON might have difficulty in perceiving BDT as an impartial decision-maker who would give their views equal consideration to his parents’ views. On one hand, his parents fervently believe that being away from XXXX stimulates the appointor to regain capacity, autonomy and freedom. On the other hand his two former carers, ON and KN, and his current carers at XXXX are firmly of the view that he is at risk when he is away from XXXX. There is a natural tendency to permit greater access to discussion and greater persuasion from one’s parents than from persons slightly more distantly related and the Board considered that this tendency would operate here, especially given his behaviour in defending his parents at the hearing.
Taking into account the factors in section 21, the Board considered that the Public Guardian is the appropriate guardian for the appointor. In particular, the Board considered that BDT’s natural love and affection for his parents may put him in a position where his interests conflict with the interests of the appointor. The Board also considered that in relation to the desirability of preserving family relationships, in an already fractured family, selection of a person who would be perceived to favour one side of the conflict over the other may have the effect of continuing and exacerbating that conflict.
Conclusion:
After hearing an application in relation to an Enduring Guardian (19554) dated 26 July 2013 made by BN (hereinafter the donor) appointing QDT and MN as his guardians and BDT as his alternative guardian the Board was satisfied that the instrument does not comply with s34(1A)(a) of the Act in that the donor did not have the mental capacity to make it.
THE BOARD DECLARES that pursuant to s34(1A)(a) of the Act the instrument is invalid
AND FURTHER
After hearing an application for a guardianship order in respect of BN (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 the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to (i) decisions concerning where the represented person is to live either permanently or temporarily, and (ii) authorising leave from the place of residence.
That the order remains in effect to 19 March 2015.
Anita Smith Kim Barker Catherine Gavan
PRESIDENT MEMBER MEMBER
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