BN – review of guardianship. - [2015] TASGAB 4

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

BN – review of guardianship.

REASONS FOR DECISION

Kim Barker (member)
Date of hearing: 13 March 2015

Review of guardianship order - non-suitability of private guardian - re-appointment of independent guardian - family conflict - differences in family members' opinions regarding best interests

Guardianship and Administration Act 1995 s.6, 20, 21, 51, 67

Holt v Protective Commissioner (1993) 31 NSWLR 227

On 20 September 2013 the Guardianship and Administration Board (the Board) appointed the Public Guardian as Mr BN’s guardian, with powers limited to (i) decisions concerning where he is to live either permanently or temporarily, and (ii) authorising leave from the place of residence. The order was to remain in effect to 19 March 2015.
On 13 January 2015 the Board received an application for review of that order from the Public Guardian. The application and accompanying reports recommended the continuation of the order.
A hearing for the purpose of reviewing the order was convened at the Board’s offices at 54 Victoria Street, Hobart, on 13 March 2015. The following people attended the hearing (with reference to their relationship to the represented person):
·MN – his wife
·KN – his daughter and the applicant
·SV – son in law, husband of Julie
·BDT (by telephone) – grandson and proposed alternative guardian
·WT – friend
·DM – friend
·DU – friend
·QDT – former son-in-law
·GX - Presbyterian Care
·Kylie Hillier (by telephone) – Office of the Public Guardian
·Derek Harnwell – Office of the Public Guardian (observing)
·Lee Perry – GAB compliance officer
The Board had before it and took into consideration the following documentary evidence:
·Health Care Professional report dated 29 July 2014 prepared by Dr K. R. Krishna
·The Public Guardian’s annual report of 30 October 2014
·The Public Guardian’s review application and supplementary report dated 13 January 2015
·An email exchange between the Office of the Public Guardian and Mr QDT, forwarded to the Board by Mr QDT with an accompanying letter on 12 March 2015.
Section 20 of the Guardianship and Administration Act 1995 (the Act) enables the Board to appoint a guardian, if it is satisfied that (i) the person has a disability; (ii) the person is unable because of that disability to make reasonable decisions; and (iii) there is a need of a guardian.
The Board must also balance the principles in section 6 of the Act, having regard to the person’s wishes, their best interests, and the least restrictive alternative.
In reviewing a guardianship order under section 67 of the Act the Board will turn its mind to those same considerations before deciding whether to vary or continue an order under section 68, to allow the order to lapse or to revoke the order. The key issues for the Board to consider, then, are those set out in section 20 and whether there has been any change to Mr BN’s disability, capacity and the need for the order. If each of the criteria in section 51 continues to be satisfied, the Board must also consider who ought to undertake the role of guardian.

Disability and capacity

In this case there was no dispute with the opinion provided by Dr Krishna that Mr BN has dementia and that this has resulted in significant cognitive decline, with poor planning and reasoning skills, poor impulse control, a reduced capacity for new learning and susceptibility to the influence of others. I am satisfied that Mr BN has an on-going disability and that he continues to lack capacity to make reasonable decisions in respect of his accommodation and care needs.

The need for a guardian

Again, there is no dispute in this case between any of the attendees that BN continues to require a guardian to make decisions regarding his accommodation. He continues to express a wish to leave his secure accommodation, he has a history of absconding, and the consensus of medical and family opinion is that he is not capable of living safely independently. GX advised the Board that, as a secure “locked” facility, requires formal consent for accommodation.
The Public Guardian’s most recent annual report, dated 13 January 2015, states that Mr BN appears to be settled living in his current accommodation and that he has commented that he is happy there. The report indicates that earlier in the period of this order BN’s daughter, KN, and former son-in-law, Mr QDT, had expressed the view that they would like to seek alternative accommodation for him, however there had been no such issue raised with the Public Guardian in the previous six months.
Regarding the authorisation of leave from BN’s place of residence, the Public Guardian reported having made decisions to preclude overnight stays away from his current accommodation; to limit leave to four hour outings (an increase from an earlier decision to limit leave to two hours); and to limit outings to mornings. Following some behavioural agitation and a consequent change in BN’s medication in late December 2014, the Public Guardian decided that BN would not have any outside excursions for a two week period to allow monitoring of his behaviour. After that, a decision was made to limit his leave to visits with his wife, which mainly occurred on a fortnightly basis, plus one other two-hour outing each week with another family member or friend.
The Public Guardian’s report states that in April 2014 she had received a letter from a lawyer acting on behalf of Mr QDT requesting that Mr QDT be allowed visits of more than four hours and overnight visits. This request was considered but the Public Guardian decided it was not in BN’s best interests to have overnight stays or outings of more than four hours.
The Public Guardian’s report also stated that, following the recent decision to limit BN’s outings to one per week (other than to his wife) for a maximum of two hours, a lengthy email was received by Ms WT submitting that more frequent and longer visits would be in his best interests.
It is clear to me that various family members and friends hold different opinions about what is in BN’s best interests, in terms of the frequency and duration of outings. I am satisfied that there is an ongoing need for a guardian to provide substitute consent for BN’s accommodation and to decide on his leave from his current accommodation.

The eligibility of any nominees for appointment to the role of guardian

As noted, the Public Guardian has been performing the role of guardian for BN since the Board made the original order on 20 September 2013. During the Board’s process of investigating the review application, BN’s grandson, Mr BDT, nominated himself for the role.
Section 21 of the Act provides the following directions regarding the appointment of a guardian (other than the Public Guardian):
(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.
BN is in the fortunate position of having a large number of family members and friends, all concerned for his well-being and willing and wanting to actively participate in his care and recreation activities. However, there is not always consensus among all those family members and friends as to what is in BN’s best interests. Further, there is sometimes fairly fervent disagreement between some family members and friends and the opinions of BN’s treating team and accommodation providers.
I have taken on board Mr BDT’s assertion that he would not make decisions according to his father’s opinions and can withstand pressure from his parents and friends, and Mr QDT’s assertion that he and his son are “quite capable” of disagreement and do so frequently. I have also taken on board Ms DU’s opinion that Arthur is the one person who enjoys positive relationships with all family members and could “bring the family together”. However, there is clearly on-going conflict between family members and friends which is currently being managed well with the role of an independent decision maker. Ms KN indicated that it had been much easier for her and her mother (BN’s wife) to work with an independent decision maker and this had relieved some pressure for them – she suggested it is “vital” to have an independent person make such decisions for the preservation of family relationships. I am not convinced that it would be in BN’s best interests to change that.
The role of a guardian can be complex and the task associated with weighing up the opinions of health professionals with those of a multitude of loving family members, coupled with taking into account the expressed wishes of the represented person – keeping in mind that a person may have the capacity to express a wish but lack the capacity to make reasonable judgements - can be highly nuanced.
In spite of Mr QDT’s assurances that he is “tough” and could cope with the pressure, I cannot be positively satisfied that all the family relationships could cope with the inevitability that decisions will be made which will not concur with the opinions of all interested parties: the history of differences in opinion in this case suggests that disappointment and disagreement, at least, is likely. It is understandable that KN and MN expressed the desire to avoid this scenario by having the Public Guardian continue in the role.
I took into consideration the decision of Kirby P. in Holt v Protective Commissioner 1993 31 NSWLR 227 where his Honour noted the advantages of appointing a neutral and dispassionate professional substitute decision maker “… where there is a potential for family conflict and sharply divided views concerning the best interests of the protected person.”
Further, whilst Mr BDT said, in response to my questioning, that medical opinion “would be hard to ignore” he also indicated that significant weight would be given to his grandfather’s wishes. I was not convinced that Mr BDT would necessarily be able to make decisions that might be contrary to his grandfather’s wishes, where those wishes conflict with his best interests. I also held a concern that the weight Mr BDT indicated ought to be given to BN’s expressed wishes in his description of the process of substitute decision-making he would take, suggested that he may not have a full appreciation of the difference between a person’s capacity to express a wish or desire and the person’s capacity to make reasonable decisions.
In addition, there might be times where BN’s best interests may not align with the medical opinion. The Public Guardian recounted making such a decision that was counter to medical advice in April 2014 regarding the duration of BN’s leave – she said she took into account the views of family members and broader quality of life considerations, and on that occasion decided four-hour excursions were actually in BN’s best interests rather that the two-hours recommended at that time by the medical team. This decision – which was accepted by all parties – may not have been made had it not been for the authority and confidence of that independent professional decision maker.
I consider that the “desirability of preserving existing family relationships” – those between Mr BDT and his parents and friends, between Mr BDT and his grandfather, and between all family members - will be best served by the appointment of an independent guardian, who may need to make decisions against BN’s own wishes, and are likely to be contrary to the opinions of at least some family members and friends at least some of the time.
I did consider the suggestion of appointing Mr BDT on a “trial basis”. However there is no such “trial” appointment available under the legislation, with the only option being to make a short term appointment, and as such I am required to take into consideration the matters set out in section 21 of the Act. In any case, I am mindful that damage to family relationships can occur quickly and can be difficult to repair – I cannot see any discernable benefit to BN’s interests to take that risk.
For these reasons, I determined that the Public Guardian is to continue in the role of guardian for BN.

The Board’s Decision:

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 continues 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 whether permanently or temporarily, and (ii) authorising leave from that place of residence.
That the order remains in effect until 12 March 2018.

Kim Barker
MEMBER